Guardianship is a legal right under which the guardian can perform acts in place of and without the consent of the person under guardianship. It is divided into public guardianship and private guardianship. Then, private guardianship is itself subdivided into guardianship of body and guardianship of property. What interests us here concerns physical guardianship, or even matrimonial guardianship.
The conditions that the matrimonial guardian must meet
The marital guardian must be free, of sound mind and pubescent. Consequently, a man whose reason is impaired or an immature child cannot act as marital guardians, because they do not have authority over their own person. They therefore cannot have authority over others.
In addition to these three conditions, the matrimonial guardian must also be Muslim if the one under the guardianship regime is also Muslim, because a non-Muslim cannot have authority over a Muslim.
God (azwadial) says:
“…And Allah will never give a way to the disbelievers against the believers. »
[Surah 4 – Verse 141]
The good repute of the matrimonial guardian is not required
The matrimonial guardian does not necessarily have to be honorable, because even supposing that he is depraved, his depravity does not dispossess him of his capacity to give another in marriage. Unless, of course, this depravity extends to the point of immorality, in which case he will no longer be given credit and he will be deprived of his right.
Can a woman enter into her own marriage?
Many lawyers believe that a woman cannot enter into her own marriage or the marriage of a third party, and that such a contract is void from her. They argue from the fact that matrimonial guardianship is a mandatory condition of validity of the marriage contract, and that the one who enters into the contract is the guardian. They are also based on a certain amount of scriptural evidence:
“…Marry the single among you and the good among your slaves, both men and women. »
[Surah 24 – Verse 32]
“…And do not give wives to the associators until they have faith…”
[Surah 2 – Verse 221]
The Messenger of God (sallAllahu alayhi wa sallam) said:
“No marriage without a marital guardian. »
[Reported by Ahmad, Abû Dawûd, at-Tirmidhî, as well as In Hibban and al-Hâkim
who declare it sahîh, according to Abû Mûsâ al-Ash`arî]
The negation “no marriage” must be understood as relating to the validity of the marriage. We deduce from this that a marriage without a guardian is void, as we will see in the hadith of Âïsha (Radia Allahu ‘anha) below.
At-Tirmidhî said: “The practice which prevails among the learned among the Companions of the Prophet is in accordance with the following tradition: “No marriage without a matrimonial guardian.”
We can cite among others Companions who adopted this opinion, ‘Umar Ibn al-Khattâb, ‘Ali Ibn Abî Tâlib, `Abdallah Ibn ‘Abbas, Abû Hurayra, Ibn ‘Umar, Ibn Mas`ûd or even Âïsha (Radia Allahu ‘ anha ) .
As for the jurists of the generation that succeeded them, we can cite Sa`îd Ibn al¬Musayyib, al-Hasan al-Basrî, Shurayb, Ibrahim an-Nakha’î, ‘Umar Ibn ‘Abd al¬`Azîz and still others. This is also the opinion adopted by Sufyân ath-Thawrî, al¬Awzâ’î, ‘Abdallah Ibn al-Mubârak, ash-Shâfi’î, Ibn Shibrima, Ahmad, Ishâq, Ibn Hazm, Ibn Abî Laylâ, at-Tabârî or even Abû Thawr (rta). »
The guardian must obtain the consent of his ward before marrying her
In addition to the differences among lawyers regarding the woman’s capacity to conclude her own marriage, her guardian must consult her and find out whether she consents to the marriage before contracting it.
Indeed, marriage is a permanent union and association between husband and wife. The harmony of the couple only lasts if the consent of the latter is taken into account.
This is why the Supreme Legislator forbade guardians to force their wards into marriage, whether they were virgins or not, and He made marriage invalid if it was contracted without their consent.
This is also the reason why they have the right to request the dissolution of the marriage and to cancel the contract in such a case. As proof of this, we have the following scriptural elements:
1- Ahmad, Muslim, Abû Dâwûd, an-Nasâ’î and Ibn Mâja (rta) report according to Ibn `Abbâs ( Radhiallahu anhu ) the following hadith:
“A woman who has already been married – thayyib – is more able to dispose of her person than her guardian. As for the one who is a virgin, we must ask her permission: her silence will take its place. »
It is necessary to understand by this that the woman who has already been married is better able to dispose of her person in the sense that her guardian cannot give her in marriage without her consent, not that she can conclude her own marriage without a guardian.
In another version reported by Ahmad, Muslim, Abû Dâwûd and an¬Nasâ’î, (rta), it is said: “As for the virgin, it is up to her father to ask her consent. », of course before giving her in marriage.
2- It is reported from Abu Hurayra that the Messenger of God (sallAllahu alayhi wa salam) said:
“A woman who has already been married cannot be given in marriage without having had her consent; a virgin woman can only be given in marriage after having obtained her authorization. –O Messenger of God! And how do I know if she allows it? the faithful then asked. –By remaining silent, replied the Prophet.”
3- AI-Bukârî, Abû Dâwûd, an-Nasâ’î, at-Tirmidhî, Ibn Mâja and Ahmad (rta) report that the father of Khansâ’ Bint Khidâm married her while she had already been married, the one -she refused to accept the marriage and informed the Prophet who annulled the union.
4- Ahmad, Abû Dâwûd, Ibn Mâja and ad-Dâraqutnî report according to Ibn `Abbâs ( Radhiallahu anhu ) that a young virgin came to find the Messenger of God (sallAllahu alayhi wa salam) and told him that her father had married without her consent, he then gave her the right to choose.
5- According to ‘Abdallâh Ibn Burayda, according to his father:
“A young girl went to find the Messenger of God (sallAllahu alayhi wa salam) and told him the following: “My father married me to his nephew in order to ennoble his lineage.” The Prophet gave her a right of annulment,
she replied: “I accept my father’s decision”; “I only wanted
women to know that their fathers have no rights in this area.” »
[Ibn Mâja relates this hadith using a chain of guarantors mentioned in the Sahîh.]
The absence of a marital guardian
If the close guardian who meets the conditions of matrimonial guardianship is present, the distant guardian is not intended to assume this role. Thus, for example, in the case where the father is present, neither the brother nor the uncle nor those who come hierarchically after them are intended to assume matrimonial guardianship. However, if the closest guardian is absent for a period such as to give the suitor (of equal status to the fiancée) the right not to wait for his decision, matrimonial guardianship is then automatically devolved to the one who comes after him in the hierarchy, and this, so that an advantageous marriage does not escape the bride.
And it is not up to the absent guardian to oppose the conclusion of the marriage of the one following his return, because by his absence, he was considered non-existent, which is why the right of guardianship was devolved to the one who followed him. This is the opinion of the Hanafites on this question.
For ash-Shâfi’î (rta), if the distant guardian gives his ward in marriage despite the presence of the close guardian, the said marriage is void. Now, if the close guardian is absent, it is not up to the guardian who comes after him to marry her, but it will be up to the judge to do so.
The case of the woman who does not have a guardian or who cannot reach the judge
Al-Qurtubî (rta) said:
“If a woman finds herself in a place where there is neither judge nor guardian, let a “neighbor” marry her and assume this role in their place. Indeed, people have to find out who will marry them and the fact is that they do the best they can in such cases. » [See Al-Jâmi’ li-Ahkâm al-Qur’ân by al-Qurtubî, t. 3; p. 76 ]
This is why Malik (rta) said of the indigent woman that she could be given in marriage by the one who takes care of her, because being one of the people who has difficulty accessing the judge, she can legitimately be considered as not having no judge at his disposal.
Any Muslim must therefore be able to act as guardian for her. As for ash-Shâfi’î (rta), he believes that if there is a woman in society who does not have a guardian and a man charged by her to represent her gives her in marriage, the marriage is valid, because this act falls under arbitration -tahkîm- and the arbitrator can act as judge.
The judge’s right of matrimonial guardianship
The right of matrimonial guardianship is vested in the judge in the following cases:
- In case of disagreement between guardians.
- In the event of the absence or non-existence of a guardian.
Thus, in the case where a man of the same condition as the bride presents himself and she agrees to marry him, but all of her guardians are traveling, even if it is in a place which is approximately distance, it is then up to the judge to conclude the marriage contract between the two parties himself.
Unless of course the suitor and the bride agree to wait for the return of the absent guardian, because this is a right which is acquired by the latter, even if the period of absence of the guardian is long. Traditions do relate to this chapter, but they are all doubtful.
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