Saturday, July 28, 2012

Can a Muslim woman marry without the consent of her guardian

A very informative answer, the overall answer is yes, she can.


In the Hanafî school of thought, what is the opinion of a woman marrying without parental consent? Please state the Hanafî opinion. Some respected Hanafî scholars in our area have permitted this under strict conditions.


The Hanafî school of thought has ruled that a woman may contract a marriage on her own without the consent of her guardian. They maintain that her marriage contract will be valid as long as she is of sound mind, mature and free (not a slave), and that her husband is of at least equal status to her. It makes no difference whether or not she is a virgin.

Therefore, if she is a minor, mentally unfit, or a slave, then she may not contract a married without her guardian’s consent. This consent must be presented upon the execution of the marriage contract either by the guardian himself or by his appointed representative.

Hanafî scholars disagree regarding a woman who contracts a marriage on her own with someone who is beneath her status. One of their sayings is that the contract is valid, but that the father of the woman has the right to object on this marriage. They said that if he approved it, the marriage would remain intact; otherwise it would be annulled. This is apparently the opinion of Abû Hanîfah himself and of both of his students – Abû Yûsuf and Muhammad al-Shaybânî.

The second opinion on this matter is that if the woman marries a man who is beneath her, the contract will be invalid from its inception. This opinion was expressed by Abû Yûsuf and Muhammad, and it is the opinion adopted by the later scholars of Hanafî Law in consideration of the woman’s interests.

Hanafî scholars support the woman’s right to contract a marriage on her own behalf by citing three types of evidences: the Qur’ân, the Sunnah, and reason.

From Allah’s book they used the verse. “So if a husband divorces his wife (irrevocably) he cannot, after that, re-marry her until after she has married another man.” [Sûrah al-Baqarah: 230]

They also cite the verse: “When you divorce women, and they fulfill the term of their waiting, do not prevent them from marrying their (former) husbands.” [Sûrah al-Baqarah: 132]

Both of these verses refer the action of marriage to the woman. This shows that the woman may get married in her own capacity.

From the Sunnah, there is a hadîth that the Prophet (peace be upon him) said: “A single woman has more right over herself (for marriage) than has her guardian.” [Sunan Abî Dâwûd, Sunan al-Tirmidhî, and Musnad Ahmad]

This hadîth clearly shows that her right in marriage is greater than that of her guardian. They also point out that the hadîth asserts the guardian’s right to execute the marriage contract with the woman’s consent as something which is preferred.

From a rational standpoint, they argue that a sane adult woman has the legal capacity to dispose of all of her affairs, including her financial ones. Since she is empowered to conduct her financial matters, no matter how considerable they might be, she should have the right to handle her own marriage.

Indeed, marriage is more her right, since marriage depends on a woman’s full satisfaction on choosing her life partner. When she executes her own marriage, this indicates that she is fully satisfied in the matter.

On this basis, her marriage is valid in the Hanafî school of thought subject to the conditions that we have already discussed.

However, it is worth saying that the Hanafî school of thought affirms a preferential guardianship for the father and other close relatives. This is to be considered after her consent and is only to protect her dignity from scandal and to avoid her being described as unscrupulous for executing the contract on her own.

The opinion of the Hanafî jurists creates an opportunity in Islamic Law for women who do not have guardians and want to get married to do so with ease.

However, it must not be forgotten that all Hanafî scholars uphold the right of a woman’s guardians to have the marriage annulled in cases where the woman get herself married to a person who is beneath her status or in cases where she receives a dowry less than that which is commanded by women of her social standing.

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