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In the name of Allah, the Most Gracious, the Most Merciful
Stipulating the Approval of the Guardian in Marriage
اشتراط الولي في النكاح

د . أحمد بن عبد الكريم نجيب
Dr.Ahmad Najeeb

Question:
A religious man with high morals made a proposal of marriage to a girl from Kosovo, but her father rejected him because he is not Albanian. Her father has also rejected other suitors due to other reasons, some of which are religious, while others are merely exaggeration in religiosity and so on. However, the father of that girl is negligent in doing acts of worship and Islamic obligations. Is it permissible for that girl to marry herself without the permission of her father, bearing in mind that she follows the Hanafî school of thought and the law in her country allows her to marry anyone she chooses? In addition, there is no religious authority or Islamic legal jurisdiction in the area.

Answer:
Seeking the help of Allah, the Almighty, I say:
It is not permissible for a woman, whether she is a virgin or not, to marry without the permission of her guardian (meaning, her father or her closest male kin). This is the opinion maintained by the majority of scholars including the four imams except for Abû Hanîfah (may Allah have mercy on them all). There is a lot of clear, authentic proof supporting this opinion. For instance, it is related in the books of Sunan with sound chain of transmission on the authority of `Âishah and Abû Mûsâ (may Allah be pleased with both of them) that Allah's Messenger (peace be upon him) said, "No marriage is effective except with the permission of the guardian."
In addition, At-Tirmidhî related with an authentic chain of transmission on the authority of `Âishah, mother of the believers (may Allah be pleased with her) that Allah's Messenger (peace be upon him said, "No woman who has married without the permission of her guardian, except her marriage be invalid. Yet, if her husband consummated marriage with her, she is entitled to receive the dower due to the pleasure of intimate relation with her. If a woman does not have a guardian, then the ruler is the guardian of her who has no guardian."
Therefore, let those who have assumed the guardianship of a woman fear Allah, the Almighty, with regard to the woman under his guardianship. Thus, he should not prevent her from marrying a suitable man who proposes to her. It is narrated on the authority of Abû Hurayrah (may Allah be pleased with him) that Allah's Messenger (peace be upon him) said, "If a proposal of marriage is made to your girl by a person whose religion and manners you are pleased with, then marry her to him. If you do not do that, there will be sedition and great mischief on earth."

Preventing a woman from marrying a suitable suitor is forbidden by the text of the Qur’ân; Allah, Exalted be He, Says, "And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not." [Al-Baqarah: 232]
Al-Bukhârî related on the authority of Al-Hasan (may Allah be pleased with him), who narrated that Ma`qil Ibn Yasâr told him that this verse was revealed regarding him; he said, "I had married my sister to a man who later divorced her. However, after her `Iddah (waiting period) expired, he came to betroth her again. I said to him, 'I married her to you and made her your bed (your wife) and favored you with her, but you divorced her. Now you come to ask for her hand again? No, by Allah, she will never go back to you (again)!' That man was not a bad man and his wife wanted to go back to him, so Allah the Almighty revealed this verse: 'Do not prevent them.' Therefore, I said, 'Now I will do it (let her go back to him), O Allah's Messenger!" So he married her to him again.

No upright guardian would insist on preventing a girl under his guardianship from marrying a suitable suitor, whose manners and religiosity are acceptable. If he did so he would not be considered upright in terms of guardianship, perhaps due to his being unreligious or having an unsound opinion. In this case, the responsibility of guardianship shifts to the one who is an upright, close male relative of the girl such as her grandfather then the one who is closer. If there is no other close male relative, or if there is no one who is upright and fitting for guardianship, then the Muslim ruler is her guardian. If there is no Muslim ruler, then guardianship shifts to the judge who applies Islamic Law, or it may be shifted to a trustworthy scholar, a leading figure among the Muslims, any upright dignitary, or any of the reliable scholars then those who are better.
Ibn Qudâmah Al-Maqdisî (may Allah have mercy on him) said in his book Al-Mughnî [7/352]: "If there is no guardian for the woman or Muslim ruler, it is reported on the authority of Ahmad that an upright man should marry her to her suitable suitor with her permission."

Let the guardians of women fear Allah the Almighty and be mindful of Him regarding the Muslim girls under their guardianship. They should not prevent them from marrying suitable suitors, because Allah the Almighty is Watchful over them, and oppression turns to darkness on the Day of Resurrection.

Moreover, Muslim girls and women should be mindful of Allah the Almighty with regard to themselves, so they should not marry without the permission of their guardians. They should do so to protect themselves from what is prohibited, keep away from imperfection and block the means to corruption.
We ask Allah the Almighty, to preserve Muslims; men and women, from being drawn into temptation, the apparent and the hidden thereof. We seek the help of Allah the Almighty and success comes only from Him.