Q689 :You have replied to many questions about
marriage and divorce and dealt with many aspects of the problems faced
by people. My question is about the case when a woman acts directly to
get married to someone without the presence of her father or a
guardian. As you have mentioned, many scholars, including major schools
of thought, consider such a marriage invalid. Imam Abu Hanifah is of
the view that it is valid. In support of the first view, quotations
from the Qur’an and Hadith are always cited. How is it that Imam
Abu-Hanifah takes a different view? Does he rely on Qur’anic verses and
Hadiths? Why cannot the weightier view invalidate the less weighty
one?
A689 : Many scholars, including Imam Al-Shaf’ie,
Ahmad ibn Hanbal and Ibn Hazm state clearly that no woman may be
married without the presence of her guardian. It is well known that
when the woman’s father is present, no one other than him may act as a
guardian. If he is dead or if he is incapable of acting in such a
matter as in the case when the father is insane, then other relatives
may act as guardians, according to a particular order which makes the
woman’s grandfather first in line after the father, then her brother,
or her uncle, or her cousin, then other relatives, provided that
proximity of relations takes precedence. A woman’s adult son may act
for her in her marriage contract only if her next of kin is a cousin.
If a woman has no guardian, or if her guardian does not agree to act
for her, when she is willing to accept the proposal of someone who is
of good character and equal to her in social status, then the ruler may
take over. In support of this view, the Qur’anic verse is quoted
which may be translated: “Arrange the marriage of the single woman from
among you, as well as such of your male and female slaves who are
righteous.” (24;32) Another Qur’anic verse is quoted, which may be
rendered in translation: “And do not give your women in marriage to men
who ascribe divinity to aught beside Allah.” (2;221) They consider
that this latter verse addresses guardians, not women. It speaks of the
normal state of affairs which is acceptable to Islam that a woman is
given away in marriage by her guardian. Right to the point is the
Hadith in which Aisha, the Prophet’s wife, quotes him as saying: “A
woman may not be married without the presence of her guardian. If she
is, then her marriage is invalid, invalid, invalid.” (Related by Abu
Dawood and At-Tirmithi). Another Hadith is quoted in this respect which
states: “No marriage may be made without the presence of a guardian.”
There are other Hadiths confirming the same opinion. There is no doubt
that the evidence supporting this view is overwhelming. It is true that
the first verse which we have quoted may be understood differently as
indeed some of the translators of the Qur’an have rendered it in
different ways. Similarly, an argument may be made that the second
verse addresses the Muslim netmunity as a whole and makes it obligatory
on the Muslim netmunity not to allow a marriage between a Muslim woman
and a polytheist. But we cannot really say that the netmunity as a
whole is ordered to do something in particular and ignore the fact that
individual Muslims are also required to make sure that this order is
netplied with. Moreover, the Hadiths which we have quoted address the
point directly and make it absolutely clear that such marriages are
invalid. Imam Abu Hanifah, on the other hand, is of the view that
since a woman is allowed in Islam to enter into all sorts of contracts
without referring to a guardian or a husband or a father or any
relative, she may enter into a marriage contract as well. In support of
his view, Imam Abu-Hanifah quotes the Qur’anic verse which speaks of a
woman who has been divorced three times. It may be rendered in
translation: “Should he (divorce her a third time) she will not
thereafter be lawful for him to remarry until she has wedded another
husband” (2;230). Imam Abu-Hanifah says that in this verse, the usage
is clear that the woman has herself wedded a new husband. He argues
that if the presence of the guardian was necessary, the Qur’anic verse
would have made that clear and Allah would have said, “until she has
been made to wed another husband.” Imam Abu-Hanifah also quotes in
support of his view the verse which speaks of women who have finished
their waiting period after the death of their husbands. It says: “When
they have reached the end of their term, you shall incur no sin in
whatever they do with themselves with decency” (2;234). Again in this
verse, the word “do” is attributed to the women themselves. Hence, if a
woman does make a marriage contract by herself, her action is valid. As
for the Hadiths, Imam Abu-Hanifah says that they are in conflict with
the clear and apparent meaning of the Qur’anic statement. As such, he
discounts them. In counter argument, we may say that this latter verse
quoted by Imam Abu Hanifah does not specifically mean marriage. It is
rather a general statement which refers to actions a woman may take in
order to organize her life after having benete a widow. Moreover, it
does not follow if what she wants to do is to get married to a new
husband, that she enters into the contract without the presence of a
guardian. It simply means that when she wants to get married, she has
to have her marriage done properly, which means, from the Islamic point
of view, that the marriage contract must be attended by her guardian.
I have tried to give you the arguments supporting both views on this
question. I hope that I have made it clear that no scholar of repute in
our history makes judgment without looking at the question from all
angles. He eventually makes his judgment after weighing up the evidence
available to him. It may happen that a great scholar makes a mistake.
Indeed, every one makes mistakes. We have the Prophet’s Hadith which
says that “he who makes a ruling in a matter, after studying the
question thoroughly, and his judgment happens to be the correct one
will have a double reward. But the one who makes a judgment in a
certain question and his judgment is mistaken will have a single
reward.” There is no doubt in my mind that the first opinion supported
by Imam Ahmad, Al-Shaf’ie, Ibn Hazm and others is the weightier opinion
on this particular question. Moreover, it is closer to the Islamic
spirit of doing everything suitable to protect women and protect the
family. It is indeed much more honorable for a woman that her father or
guardian acts on her behalf when she gets married. This is more in line
with the high standard of serious morality which Islam establishes in
its netmunity. We do not just dismiss an opinion like that of
Abu-Hanifah on a certain matter, simply because we have a weightier
opinion. What we do is to implement the weightier opinion as far as
possible. Certain circumstances may make a less weighty opinion more
appropriate in a particular case or situation. Suppose that a netmunity
embraces Islam after having lived for centuries allowing women to
conduct their own affairs by themselves. It will not nete easy to that
netmunity that women should no longer act for themselves when they get
married. If a Muslim ruler favors a less weightier opinion, his support
adds to its weight. Moreover, the cultural and scholarly heritage
belongs to the whole nation of Islam and to all its generations.
Therefore, we will not just dismiss scholars’ opinions because we feel
that opposite views are weightier.
Our Dialogue ( Source : Arab News – Jeddah )