Divorced Woman Marrying without her Guardian’s Approval

Divorced Woman Marrying without her Guardian’s Approval

Question:

What is the ruling in the Hanafi School concerning a woman who marries herself without her Wali’s permission? The sister in question was previously married. She wants to marry this brother who has also just recently come out of a failed marriage, but her parents are against it. Can she just marry him against the wishes of her parents?

Answer:

In the name of Allah, Most Compassionate, Most Merciful,

The general principle is that, according to the relied upon position in the Hanafi School, the marriage of a free sane and adult woman without the approval of her guardian (wali) is valid if the person she is marrying is a legal and suitable match (kuf’) to her. However, if the person she is marrying is not her legal match, then her marriage would be considered invalid. The other three Sunni Schools consider a marriage without the guardian’s approval to be invalid regardless of whether the person she is marrying is a legal match to her or otherwise. As for the details of who is a legal and suitable match to her and who is not, this can be found in the books of Fiqh.

The renowned Hanafi jurist, Imam al-Haskafi (Allah have mercy on him) states:

“The marriage of a free and legally responsible (i.e. adult and sane) woman is valid (even) without the permission of her guardian (wali)…..and the Fatwa issued in her marrying someone who is not her legal match is of invalidity, and this is the chosen Fatwa due to corrupt times…” (See: Radd al-Muhtar ala al-Durr 3/56-57. This is the position chosen by Ibn Abidin in his Hashiya and many other Hanafi jurists)

It is important to note here, however, that the above ruling is concerning whether such a marriage would be technically valid or not. As far as appropriateness is concerned, many Hanafi jurists (fuqaha) have pointed out that it is generally wrong (in normal situations, and if one thinks their situation is abnormal, they should refer their case to a scholar of knowledge and piety) and going against the Sunnah, to marry without the permission of the Wali regardless of whether the spouse is a legal match or otherwise. (See: Imdad al-Mufteen P: 527)

Nevertheless, this position of validity held by the Hanafi School is based on many evidences, and it would be impossible to cover all of them here with their implications. However, the following few evidences should suffice, Insha Allah.

1) Allah Most High says: “When you divorce women, and they fulfil the term of their waiting period (idda), do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms.” (Surah al-Baqarah, V: 232)

In this verse, Allah Most High attributes the conducting of marriage to women which is an indication that they are able to marry themselves without the permission and approval of their Wali. Moreover, the guardians are instructed not to interfere by preventing them from marrying their former husbands.

2) Allah Most High says: “If any of you dies and leaves widows behind, they shall wait concerning themselves four months and ten days: When they have fulfilled their term (of idda), there is no blame on you if they dispose of themselves (marry themselves off) in a just and reasonable manner.” (Surah al-Baqarah, V: 234)

In this verse also, there is clear indication that women have full rights of marrying themselves and do not require the approval of their guardian or Wali.

3) Sayyiduna Abdullah ibn Abbas (Allah be pleased with him) reports that the Messenger of Allah (Allah bless him & give him peace) said: “A non-married woman (virgin or non-virgin) has more right in managing her own affairs (i.e. marriage etc) than her guardian, and a virgin’s consent must be sought concerning herself, and her silence implies her consent.” (Sahih Muslim, no: 4121)

In this Hadith, the term Ayyim means a woman who has no husband (man la zawja lah) and includes both virgin and non-virgin women. The Messenger of Allah (Allah bless him & give him peace) is clearly stating that she is more rightful than her guardian in managing her own affairs in terms of marriage and other similar things.

4) Sayyiduna Ali ibn Abi Talib (Allah be pleased with him) would strongly advise against marrying without the guardian’s approval, but if someone was to go ahead and marry, he would consider their marriage to be valid. (Kanz al-Ummal, no: 45775)

As for the Hadiths indicating that marriage without the guardian’s approval is completely invalid, Imam Zafar Ahmad Uthmani (Allah have mercy on him) states in his colossal encyclopaedic work, I’la al-Sunan, that Hadiths such as “Any woman who marries without the permission of her guardian, her marriage is invalid, invalid, invalid” (related by Ibn Hibban, Tirmidhi and others, and Tirmidhi considered it to be hasan) and “There is no marriage without the (permission of a) guardian” (related by Hakim and Abu Dawud) are to be understood in light of the other Hadiths that point to the validity of such a marriage. As such, the generality in these two Hadiths is restricted to pubescent (non-baligha) and slave women, whilst adult and free women are to be excluded from this general ruling due to the evidences favouring the validity of their marriages without the guardian’s approval.

As such, the meaning of the Messenger of Allah’s statement “There is no marriage without the (permission of a) guardian” would be “There is no complete and blessed marriage without the permission of the guardian” but the marriage in of itself is valid provided the woman marries a person who is a legal match to her. Likewise, the meaning of the Hadith “Any woman who marries without the permission of her guardian, her marriage is invalid, invalid, invalid” will mean “her marriage is invalid in some situations” and that situation is when she marries herself off to a person who is not considered a legal match to her.

Moreover, the two reporters of these two Hadiths, Sayyida A’isha and Imam Zuhri (Allah be pleased with them) have both opposed the ruling given in them. Sayyida A’isha (Allah be pleased with her) married off Hafsa bint Abdirrahman without the approval of her guardian, whilst Imam Zuhri is reported to have said: “Any woman who marries herself without her guardian’s approval, her marriage is valid”. It is an accepted principle that if the reporter of a narration himself or herself contradicts that which is being reported, then his/her reported Hadith should not be taken at face value, but rather understood in light of the reporter’s action.

All of this, keeping in mind that the two Hadiths also have certain deficiencies from a transmittal (isnad) point of view. (I’la al-Sunan 11/69, Chapter: Having a guardian is not a pre-requisite for the validity of an adult woman’s marriage)

It becomes clear, then, that the position held by the Hanafi School in this regard is not a position that is baseless as some people wrongfully claim. Indeed, the other three Schools and the majority of the Fuqaha do not consider a woman’s marriage without the approval of her guardian to be valid, but that does not necessarily mean the position of the Hanafis is weak or unsubstantiated.

The above explanation is also clear in determining that if a woman marries a person who is not considered a legal match to her without the approval of her guardian, then her marriage will be invalid. This ruling is for all types of women, virgin, non-virgin, widow or divorced. Marrying someone who is a legal match is the guardian’s right as much as it is the right of the woman. Hence, if she was to relinquish her right, her guardian’s right would still remain. Yes, if the guardian also relinquished his right, then there would be nothing wrong in her marrying such a person.

Shaykh Muhammad Qudri Basha states in his al-Akham al-Shar’iyya fi al-Ahwal al-Shakhsiyya:

Item no 51:

“…It is the right of a free and legally responsible woman to marry herself without the approval of her guardian, whether she is a virgin or non-virgin. This marriage will stand as valid if the husband whom she married is a legal match to her…”

Item no 52:

“…And if she (free and legally responsible woman, whether virgin or non-virgin) married herself off to someone who is not a legal match to her without the explicit approval of her guardian before the marriage contract, then her marriage would be invalid altogether, and the permission given by the guardian later on will be of no consequence (m: meaning a new marriage contract will have to be performed should the guardian agree later on).” (Al-Akham al-Shar’iyya, P: 31-32)

Imam Zafar Ahmad Uthmani (Allah have mercy on him) mentions this explicitly in his I’la al-Sunan, he states:

“We (also) hold the position that a marriage without the approval of the guardian is invalid in some situations, even if the woman is an adult (baligha) or non-virgin/widow (thayyiba), such as when she marries herself off to someone who is not her legal match and her guardian does not approve of it.” (I’la al-Sunan, 11/69)

Therefore, in conclusion, if a sane and adult woman, whether previously married or not, married herself off to someone who is a suitable and legal match (kuf’) to her, then her marriage will be valid and binding. If, however, she (sane and adult woman whether previously married or not) married herself off to someone who is not a suitable and legal match to her, then the fatwa in the Hanafi School is that her marriage will be invalid. This discussion is solely concerning legal validity, not appropriateness. As for appropriateness, it is inappropriate and against the Sunna, in normal situations, for a woman to marry without her guardian’s approval.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Question #: 5693
Published: 16/12/2006