Power of Guardianship in the Marriage Contract

[فداء الرسول]

Power of Guardianship in the Marriage Contract

In Islamic jurisprudence one requirement for a sound marriage is the total agreement of the woman concerned.
The Prophet of Allah said (Peace be upon Him):


An "ayyim" (a divorcee or a widow) must not be wedded unless she is asked, and gives her approval. And a virgin must not be wedded unless she is consulted."
It was asked: "O messenger of Allah, How is her permission?"
He said: "If she remains silent."
[Bukhari #4843 & Muslim #1419]


If a woman is coerced into accepting an undesired marriage, she is entitled to present her case before a Muslim judge to seek annulment. A woman by the name of al-Khansa bint Khadam, who had been previously married (and was now divorced or widowed), came complaining to the Messenger of Allah (Peace be upon Him) that her father had forced her to marry a person she despised. He disapproved and invalidated it.(Reported by Bukhari #6546)
Another requirement is that she does not give herself in marriage to anyone without guardianship. Her father, or in case he is not alive, her grandfather, paternal uncle, brother or even her mature son, or the ruler of the State, must act as her guardian in this affair to assure her rights are protected and to sign the marriage contract along with her signature. His role is to make sure that the groom is sincere and of standard, that she has a proper dowry, and that two witnesses testify to the contract which she willfully accepts. All these measures are to protect her rights and the sanctity of marriage.
The Messenger of Allah (Peace be upon Him) made this perfectly clear when he said:


"There is no marriage without a guardian."


[Abu Dawood #2058 & Tirmidhi #1101 and verified]


And in another version:


"There is no marriage without a guardian, and the ruler is the guardian for those who have no guardian." [Ahmad #2260 & Ibn Majah #1889 and verified ]
Therefore, if she elopes and marries herself, this marriage is considered unlawful, as the Prophet (Peace be upon Him) declared:


"Any woman who marries without the consent of her guardian, then her marriage is nullified, then her marriage is nullified, then her marriage is nullified, and if he has consummated the marriage then she must receive a dowry from him for what he has made lawful of her private parts, and if they fall into dispute then the ruler is the guardian for those who have no guardian."


[Abu Dawood #2083 & Tirmidhi #1102 and verified]



As mentioned above in the rights of daughters, whether a virgin or otherwise, the right of a woman is to accept or reject any marriage offer of her own free will. The institution of guardianship is only to protect her interests. The fact that the ruler or governor becomes her legal guardian to assure that all is in order and that no criminal injustice is perpetrated reinforces the sacredness of the marriage contract and the sanctity of her rights in Islam.



Since the woman remains in a position of natural weakness, Islamic jurisprudence lays down principles and laws to protect her interests and welfare and preserve her rights. The father, the mother and other concerned relatives, if need be, help select the right and most suitable husband for her, since all seek her happiness and none wish her to be victim of a failed marriage. The goal of marriage is to establish an everlasting relationship between a male and a female and a loving and beneficial home for the children, not mere gratification of certain desires. Since women are, in general, more emotional than men and more easily affected and tempted with appearances rather than the deeper realities, Islamic jurisprudence gives the right to the guardian to refuse and reject proposals if the suitor is not deemed a sound and sincere match.
Male guardianship in this case is only natural given their role of authority and responsibility. Moreover, it cannot be denied that men, being of the same gender, have a better ability to perceive qualities of other men in certain areas, and are more capable of finding those characteristics of a man that suit his daughter or the woman under his responsibility of guardianship. Of course he seeks counsel of the wife and other concerned females in the process of selection of the bridegroom. If an appropriate man proposed for marriage and the guardian refused for no valid reason, then the guardianship can be contested in the court of law. The guardianship is then given to the nearest responsible male relative of the woman, or, in case she has no responsible male relatives, the Muslim Judge assumes guardianship.


In the final analysis, the true measurement of a suitable match in marriage is the statement of the Prophet of Allah (Peace be upon Him):


"If a person comes to you to propose a marriage and you are pleased with his religion and morals, then marry him. If you fail to do so, great affliction will take place on earth, and corruption will be widespread."
[Tirmidhi #1085 and verified ]


A man with a sound and good understanding of his Islamic commitment, with good moral standards will honor his wife and dignify her, and treat her justly with decency even if he does not love her

[هشيم]

There is no doubt Islam has good and useful social laws, children, parents, leader, family, neighbourhood, marriage...etc are all forming a system of life that needs laws and rules to go on and Allah who knows the best, His laws and rules are for human being advantages ....Being one of the aspects of life marriage is not excluded from Islam concerns, being an important social process marriage needs laws to organize it. The best we have until nowadays is what we have from (Islam). All the human made laws and rules failed to help making a successful marriage, family and society. Islam appoints the rights and responsibilities for every individual.