Most of the fuqaha and imams say that nikah is not valid without a wali, while Abu Hanifah and his companions say that an adult, sane, free woman can conclude her own nikah with a suitable husband and proper mahr. (Bidayat al Mujtahid 3/20 to 25)
Ibn Rushd says that the cause of the disagreement of a few scholars is that no verse and no sunnah came with a wording that is completely clear in making the wali a condition, and that the verses and hadith used by both sides can be read in more than one way, while there is also dispute over some chains, so the Hanafis fall back on the basic rule that a person is free from extra duty until there is clear proof. (Bidayat al Mujtahid 3/20 to 25)
The Majority View
Ibn Qudamah says that marriage is not valid except with a wali, that a woman has no authority to marry herself or anyone else, and cannot appoint an agent other than her wali, and that if she does this the nikah is invalid. (al Mughni 7/7 to 8)
Al Baghawi says this is the view of Umar ibn al Khattab (d. 23 AH), Ali ibn Abi Talib (d. 40 AH), Ibn Masud (d. 32 AH), Ibn Abbas (d. 68 AH), Abu Hurayrah (d. 59 AH), Aishah (d. 58 AH), Said ibn al Musayyib (d. 94 AH), al Hasan al Basri (d. 110 AH), Ibrahim al Nakhai (d. 96 AH), Qatadah (d. 117 AH), Umar ibn Abd al Aziz (d. 101 AH), Sufyan al Thawri (d. 161 AH), al Awzai (d. 157 AH), Ibn al Mubarak (d. 181 AH), al Shafii (d. 204 AH), Ahmad ibn Hanbal (d. 241 AH), Ishaq ibn Rahawayh (d. 238 AH), and others رحمهم الله.(Sharh al Sunnah 9/39 to 44)
Umar ibn al Khattab said that a woman is not married except with the permission of her wali, or a man of sound judgement from her family, or the ruler. (al Muwatta 2/525)
Abd al Rahman ibn al Qasim reports that Aishah would attend the proposal stage for women from her family, but when only the final binding wording remained she would tell a male relative “Marry her off,” saying that a woman does not take charge of the nikah contract. (Sharh al Sunnah 9/39 to 44)
Quran evidence for the majority
Allah says: “And when you divorce women and they reach the end of their waiting period, do not stop them from marrying their husbands.” (al Baqara 2:232)
Those who require a wali say this is a command to the awliya not to block the women, and that this shows that the right to marry them off belongs to the wali, especially as it came down about Maqil ibn Yasar when he refused to marry off his sister and the Prophet ﷺ called him and he married her off. (al Mughni 7/7 to 8)
The verse: “And do not marry polytheist men until they believe.” (al Baqara 2:221) is also evidence.
This is a command to guardians, so it proves that they are the ones who conclude nikah for women. (Bidayat al Mujtahid 3/20 to 25)
Hadith and practice for the majority
The main hadith is that the Prophet ﷺ said: “Any woman who marries without the permission of her wali, then her marriage is invalid, invalid, invalid. If he has consummated with her, then she has the mahr for what he made lawful from her private part. If they dispute, then the ruler is the wali of the one who has no wali.” (Abu Dawud, 2083; al Tirmidhi, 1102; Ibn Majah,1879)
This hadith is narrated from Aishah through al Zuhri and others, and was graded hasan by al Tirmidhi, and authenticated by Ibn Hibban and al Hakim, with detailed support from al Bayhaqi and Ibn Hajar. (Bidayat al Mujtahid 3/20 to 25)
Another wording is: “There is no marriage except with a wali.” (Abu Dawud, 2085)
Al Hakim says that this wording is established from the wives of the Prophet ﷺ Aishah, Umm Salamah, and Zaynab bint Jahsh, and that there are also narrations on this from Ali, Ibn Abbas, Ibn Umar, Abu Dharr, al Miqdad, Ibn Masud, Jabir, Abu Hurayrah, Imran ibn Husayn, Ibn Amr, al Miswar ibn Makhramah, and Anas ibn Malik, and he and Ibn Hibban judged its meaning authentic. (al Mustadrak 2/169; Nasb al Rayah 2/183 to 190)
Those who say a wali is not a condition argue that Ibn Jurayj asked al Zuhri about this hadith and he did not recognise it. Ibn Qudamah answers that this report comes only through Ibn Ulayyah, that Ahmad and Yahya ibn Main did not accept this as harm to the hadith, and that even if al Zuhri later forgot it, many reliable narrators had already carried it from him, and forgetfulness after narration does not damage an authentic report. (al Mughni 7/7 to 8)
From the words “then her marriage is invalid” they take that a nikah without a wali is void and not simply left hanging for later approval. (Bidayat al Mujtahid 3/20 to 25)
From “If he has consummated with her, then she has the mahr” they take that intercourse under a mistaken contract still fixes an equivalent mahr, removes the hadd punishment, and establishes lineage. (Sharh al Sunnah 9/39 to 44)
From “If they dispute, then the ruler is the wali of the one who has no wali” they take that even in cases of dispute or wrongful preventing, or when the nearest wali is away on a journey where the prayer is shortened, the contract does not return to the woman but to the ruler as wali. (al Mughni 7/7 to 8)
Imam al Shafii says that whoever knowingly conducts a nikah without a wali is punished, based on the report that Umar ibn al Khattab whipped a man who married and a man who conducted a nikah for a previously married woman on a journey, then cancelled the marriage. (al Shafii, al Umm 2/319)
Ibn Qudamah explains that a woman was blocked from conducting her own nikah because she may be weaker in judgement, may be deceived and harmed, and because directly arranging marriage for herself shows boldness and obvious leaning to men which conflicts with modesty and the honour of families of protection. (al Mughni 7/7 to 8)
Why the Hanafis say the wali is not a condition
Abu Hanifah says that an adult, sane, free woman may marry herself and marry others and appoint an agent in marriage, and that her nikah is valid if the husband is suitable and the mahr is equal to that of similar women. (Sharh al Sunnah 9/39 to 44)
Al Mawsili explains that marriage is her exclusive right, that she is able to manage her own affairs, and that her nikah is valid from her just as her sale of her slave woman is valid. (al Ikhtiyar 3/91 to 92)
He adds that guardianship in marriage is established for more relatives than guardianship over wealth, and that the wali may even be forced to marry her to a suitable man when she asks, which shows how strong her right is, while suitability remains a right of the guardians that she cannot remove by marrying an unsuitable husband. (al Ikhtiyar 3/91 to 92)
Quran evidence used for the Hanafi view
Al Mawsili says that the basis of Abu Hanifah’s view is Allah’s saying: “Until she marries another husband.” (al Baqara 2:230)
And His saying: “There is no blame upon you for what they do with themselves in a lawful manner.” (al Baqara 2:234)
And His saying again: “In a lawful manner.” (al Baqara 2:240)
He says that in these verses Allah attributes marriage and lawful action directly to the women themselves, without mentioning anyone else with them, which shows that their wording is valid and takes effect. (al Ikhtiyar 3/91 to 92)
He adds that if a woman marries herself to a suitable man with a mahr equal to that of her peers, she has acted lawfully regarding herself, and there is no blame on the guardians. (al Ikhtiyar 3/91 to 92)
Abu Hanifah also uses the verse: “So do not stop them from marrying their husbands.” (al Baqara 2:232)
He says that Allah linked marriage to the women, and forbade preventing them from it, which shows that nikah is their own right. (Sharh al Sunnah 9/39 to 44)
Ibn Rushd comments that using the verse “There is no blame upon you for what they do with themselves in a proper manner” as proof for the woman’s authority over nikah is even stronger than using “Do not marry polytheist men” as proof for the guardian’s authority, although he notes that no jurist applies all parts of this verse exactly as it reads. (Bidayat al Mujtahid 3/20 to 25)
Hadith and reasoning for the Hanafis
They rely on the hadith of Ibn Abbas that “The previously married woman has more right over herself than her wali, and the virgin is asked for permission, and her permission is her silence.” (Bidayat al Mujtahid 3/20 to 25)
They understand this as strong proof that the previously married woman herself is the main owner of her affair in nikah. (Bidayat al Mujtahid 3/20 to 25)
They also use the report that a young woman said: “O Prophet of Allah, my father married me to the son of his brother to raise his low status, and I dislike him,” and he ﷺ said to her: “Approve what your father has done.” She said: “I have no desire for what my father has done.” He said: “Then go and marry whom you wish.” She then said that she only wanted women to know that fathers have no authority over their daughters’ affairs. (al Ikhtiyar 3/91 to 92)
They take evidence from his words “Marry whom you wish,” from his silence at her statement that fathers have no authority, and from his first request that she approve her father’s contract, which shows that it was not binding without her approval. (al Ikhtiyar 3/91 to 92)
They also rely on the hadith in al Bukhari that Khansa bint Jidham was married by her father while she disliked it and the Prophet ﷺ annulled the marriage, and on the report that a woman married off her daughter with her consent, then the guardians came and disputed before Ali and he approved the nikah. (al Bukhari; al Ikhtiyar 3/91 to 92)
They say this shows that nikah can be concluded through the wording of women, and that Ali approved a nikah without the usual wali when the guardians were absent, since she acted within her own right without harming anyone, like her disposal of her wealth. (al Ikhtiyar 3/91 to 92)
By analogy they argue that if she owns the right to sell her slave woman, which is disposal over a person and all her benefits, then marriage, which is a contract over some of her own benefits, is even more fitting to be valid from her. (Sharh al Sunnah 9/39 to 44)
They say an adult woman is the wali of herself, so the wording “no marriage except with a wali” is fulfilled even when she conducts her own nikah. (al Ikhtiyar 3/91 to 92)
They also point to the practice of Aishah, who married the daughter of her brother Abd al Rahman while he was absent in Syria, and say this shows that nikah through the wording of women is allowed, and that either the hadith “no marriage except with a wali” is not authentic from her, or she did not narrate it, or it was abrogated, or that the proofs they mention are stronger. (al Ikhtiyar 3/91 to 92)
How the Hanafis criticise and reconcile the wali hadiths
They weaken the chains of the hadith “There is no marriage except with a wali and two upright witnesses,” saying that the strongest wording is actually stopped at Ibn Abbas, with raised versions containing weak narrators such as Adi ibn al Fadl and al Rabi ibn Badr. (al Daraqutni 3/121; al Bayhaqi 7/124 to 126; al Tirmidhi 3/411)
They quote Yahya ibn Main, who said that three hadith are not established from the Prophet ﷺ, including “There is no marriage except with a wali and two upright witnesses,” and that Ahmad ibn Hanbal and Ishaq ibn Rahawayh agreed with him.
They say that the wording “no marriage except with a wali and two witnesses” should be carried on slave women, supported by narrations that say “Any slave woman who marries herself,” so that unrestricted wording is limited by restricted wording, and what they narrate about free adult women remains general.
They also say that one of the routes of the hadith “Any woman who marries herself without the permission of her wali” through Sulayman ibn Yasar from al Zuhri is weak, and that al Bukhari rejected Sulayman’s narration.
They mention that Malik and Ibn Jurayj both asked al Zuhri about this hadith and he did not recognise it, which they treat as a sign of its invalidity. (this issue was already addressed above)
Finally they answer the claim that a woman has weak judgement by saying that what counts in guardianship is adulthood and general soundness of mind, not higher or lower levels of intelligence, and that many women are more complete in intellect and stronger in judgement than many men, so an adult, sane woman should not be stopped from contracting her own nikah on this basis. (al Ikhtiyar 3/91 to 92)
References Translated In Full Below
The hadiths that mention the requirement of a wali for marriage have been disputed among the ulama regarding their authenticity.
Among them is the hadith mentioned in the question. Al Tirmidhi graded it as hasan, and it was authenticated by Ibn Hibban, Ibn al Jarud, al Hakim, al Dhahabi, Ibn Adi, and Ibn al Jawzi, while others considered it weak.
What follows is an explanation of the proofs used by the Hanafis to establish their madhhab, and the view of the other Imams and madhhabs.
Ibn Rushd said: The ulama differed over whether guardianship is a condition for the validity of marriage or not.
Malik held the view that there is no valid marriage except with a guardian, and that guardianship is a condition for validity according to the narration of Ashhab from him.
This is also the view of al Shafii. Abu Hanifah, Zufar, al Shabi, and al Zuhri said that if a woman concludes her own marriage without a guardian, and the man is suitable for her, then the marriage is valid. Dawud differentiated between a virgin and a previously married woman. He required a guardian for the virgin, but did not require it for the previously married woman.
From the narration of Ibn al Qasim from Malik regarding guardianship, a fourth view emerges, which is that requiring a guardian is a sunnah and not an obligation.
This is because it is reported from Malik that he held that inheritance applies between spouses even without a guardian, and that it is permissible for a woman who is not of noble lineage to appoint a man from among the people to marry her off.
He also considered it recommended that a previously married woman put forward her guardian to conclude the marriage on her behalf. It is as though, according to him, guardianship is a condition of completion, not a condition of validity.
This differs from the expression used by the Baghdadi companions of Malik, who say that guardianship is a condition of validity, not merely a condition of completion.
The reason for their disagreement is that no verse from the Quran nor any sunnah has come that is apparent in requiring guardianship for marriage, let alone a clear explicit text. Rather, the verses and narrations that are usually used as evidence by those who require guardianship are all open to more than one meaning.
Likewise, the verses and narrations used by those who do not require guardianship are also open to more than one meaning. As for the hadith, despite being open to interpretation in their wording, there is disagreement over their authenticity, except for the hadith of Ibn Abbas. Even so, those who drop the requirement of guardianship do not have a clear proof, because the original principle is freedom from obligation.
We will mention the well known evidences used by both sides and explain the areas of possible interpretation in them.
Among the clearest verses used by those who require guardianship is the saying of Allah: “And when you divorce women and they reach the end of their waiting period, do not prevent them from marrying their husbands” (al Baqarah 232). They say that this is a command addressed to guardians, and if they had no right of guardianship, they would not have been forbidden from preventing marriage.
They also use the saying of Allah: “And do not marry polytheist men until they believe” (al Baqarah 221). They say that this is also a command addressed to guardians.
Among the most well known hadith used by this group is what al Zuhri narrated from Urwah, from Aishah, who said that the Messenger of Allah ﷺ said: Any woman who marries without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid.
If the husband has consummated the marriage with her, then she is entitled to the dowry because of what he has taken from her. If they dispute, then the ruler is the guardian of the one who has no guardian. This was reported by al Tirmidhi, who said that it is a hasan hadith. (Reported by al Tirmidhi in al Sunan 3/407 number 1102. It was also reported by Abu Dawud 2/566 number 2083, Ibn Majah 1/605 number 1879, Ibn al Jarud number 700, al Tahawi in Sharh Maʿani al Athar 7/3, Ibn Hibban page 305 number 1247 in al Mawarid, al Daraqutni 3/221 number 10, al Hakim 2/168, al Bayhaqi 7/105, Abu Nuaym in al Hilyah 6/88, al Tayalisi page 206 number 1463, Ahmad 6/47 and 165, al Darimi 2/137, al Shafii in Tartib al Musnad 2/11, Abd al Razzaq in al Musannaf 6/195 number 10472, al Humaydi 1/112 number 228, Ibn Abi Shaybah in al Musannaf 4/128, al Baghawi in Sharh al Sunnah 9/39, and others. It has supporting narrations from several companions and is authentic. Al Bayhaqi discussed it in detail in al Sunan 7/105 to 1070, and Ibn Hajar discussed it in al Talkhis 3/156 to 157.)
As for those who do not require guardianship, they use evidence from the Quran and the sunnah.
From the Quran, they use the saying of Allah: “There is no blame upon you for what they do with themselves in a proper manner” (al Baqarah 240). They say this is proof that a woman is allowed to manage her own marriage contract.
They also say that Allah attributed the act of marriage to women in more than one verse, such as His saying: “That they marry their husbands” and His saying: “Until she marries another husband.”
From the sunnah, they use the hadith of Ibn Abbas, which is agreed upon as authentic, in which the Prophet ﷺ said: A previously married woman has more right over herself than her guardian, and a virgin must be asked for her permission, and her permission is her silence. Dawud used this hadith as evidence for his distinction between the virgin and the previously married woman in this matter.
This is the well known evidence used by both sides.
As for the saying of Allah: “When they reach the end of their waiting period, do not prevent them” it contains nothing more than a prohibition against a woman’s relatives and agnates preventing her from marriage.
Being forbidden from preventing her does not imply, either literally or figuratively, that their permission is a condition for the validity of the contract. Rather, it could even be understood to mean the opposite, namely that guardians have no authority over those under their care.
Likewise, the saying of Allah: “Do not marry polytheist men until they believe” may be a command directed to the rulers of the Muslims, or to all Muslims in general, or it may be directed to guardians. Overall, it is uncertain whether it is addressed to guardians or to those in authority. Whoever uses this verse as evidence must show that it is more clearly addressed to guardians than to those in authority.
If it is said that it is general and includes both rulers and guardians, it can be replied that this is a command of prohibition by the Sharia, and prohibition applies equally to guardians and others. A guardian being commanded to prevent something does not give him a specific authority in granting permission that an unrelated person does not have.
Even if it were accepted that it is addressed to guardians and that it requires their permission for the validity of marriage, it would still be ambiguous and could not be acted upon, because it does not mention the categories of guardians, their qualities, or their ranks. Clarification cannot be delayed beyond the time of need.
If this had been a known ruling of the Sharia, it would have been transmitted by widespread narration, or something close to that, because it is a matter that affects everyone. It is also known that there were people in Madinah who had no guardian, yet it is not reported that the Prophet ﷺ used to conclude their marriages, nor that he appointed someone to do so.
Furthermore, the purpose of the verse is not to establish a ruling about guardianship. Rather, its clear purpose is to forbid marriage to polytheists.
As for the hadith of Aishah, there is disagreement over whether acting upon it is obligatory. The stronger view is that there is no agreement on its authenticity such that acting upon it would be obligatory. Even if its authenticity is accepted, it only requires the permission of a guardian for a woman who has a guardian, meaning one who is under guardianship.
Even if it is taken as general for every woman, it does not state that a woman cannot conclude her own contract. What is more apparent from it is that if the guardian gives permission, she may conclude the contract herself, without requiring the guardian to be present as a witness.
As for the evidence of the other group from the saying of Allah: “There is no blame upon you for what they do with themselves in a proper manner” (Surah Al-Baqarah: 226) its meaning is a prohibition against interfering with women in what they independently do without their guardians.
There is nothing a woman can independently do without a guardian except concluding the marriage contract. The apparent meaning of this verse, and Allah knows best, is that she may conclude the marriage, while guardians have the right to annul it if it is not done in a proper manner. However, no one has held this view, and using part of the apparent meaning of the verse while ignoring another part is weak.
As for attributing marriage to women, this does not prove that they alone have the authority to conclude the contract. The original principle is authority, unless evidence shows otherwise.
As for the hadith of Ibn Abbas, it clearly supports distinguishing between a virgin and a previously married woman. If both must seek permission and the guardian concludes the contract for both, then what meaning remains in saying that the previously married woman has more right over herself than her guardian?
The narration of al Zuhri (d. 124AH) may be understood as agreeing with this hadith rather than contradicting it. It may be that the difference between them is only in silence and speech, with silence being sufficient for the contract.
Using the verse “There is no blame upon you for what they do with themselves in a proper manner” as evidence that a woman has authority over the contract is stronger than using the verse “Do not marry polytheist men until they believe” as evidence that the guardian has authority over the contract.
The Hanafis weakened the hadith of Aishah because it was narrated by a group from Ibn Jurayj (d. 150 AH) from al Zuhri. Ibn Ulayyah (d. 193 AH) reported from Ibn Jurayj (d. 150 AH) THAT he asked al Zuhri about it, and he did not recognise it. They also argued that al Zuhri himself did not require guardianship, and guardianship was not the view of Aishah.
They also used as evidence a hadith of Ibn Abbas which says: There is no marriage except with a wali (guardian) and two just witnesses.
However, there is disagreement over whether this hadith is raised to the Prophet ﷺ or stopped at Ibn Abbas(mawquf). (Reported by al Daraqutni 3/121 number 11 and al Bayhaqi 7/124 through Adi ibn al Fadl from Ubayd Allah ibn Uthman ibn Khuthaym from Said ibn Jubayr from Ibn Abbas. Al Daraqutni said that Adi raised it, while others did not. Al Bayhaqi said that Adi ibn al Fadl is weak and that the correct version is stopped.
It was also reported by al Tabarani in al Kabir 11/155 number 11343 through al Rabi ibn Badr, who is abandoned. It was reported by al Bayhaqi 7/125 to 126 and al Tirmidhi 3/411 number 1103 through Abd al Ala, who raised it in tafsir but stopped it in divorce.
The correct version is stopped (mawquf). There are narrations on this topic from Aishah, Imran ibn Husayn, Abu Hurayrah, Jabir, Abu Musa, Abu Said al Khudri, Ibn Masud, Ibn Umar, and Ali ibn Abi Talib. See the detailed discussion in the book Irshad al Ummah ila Fiqh al Kitab wa al Sunnah, section on marriage. The conclusion is that the hadith is authentic due to supporting narrations.)
Bidayat al Mujtahid wa Nihayat al Muqtasid by Ibn Rushd (3/20-25)
2262: Abd al Wahhab ibn Muhammad al Kaysai narrated to us. Abd al Aziz ibn Ahmad al Hallal narrated to us. Abu al Abbas al Assamm narrated to us. Al Rabi narrated to us. Al Shafii narrated to us. Said ibn Salim narrated to us, from Ibn Jurayj, from Sulayman ibn Musa, from Ibn Shihab, from Urwah, from Aishah, from the Prophet ﷺ, that he said: “Any woman who marries without the permission of her guardian, then her marriage is invalid” three times.
“If he has consummated with her, then she is entitled to the dowry because of what he made lawful from her private part. If they dispute, then the ruler is the guardian of the one who has no guardian.” (It was reported by Abu Dawud, in the Book of Marriage, chapter on the guardian, and by al Tirmidhi, in the Book of Marriage, chapter on what has come about “There is no marriage except with a guardian”, and by Ibn Majah, in the Book of Marriage, chapter on “There is no marriage except with a guardian”.
Al Tirmidhi graded it as hasan. Ibn Hibban authenticated it, and al Hakim also authenticated it. It is an authentic hadith. Al Bayhaqi discussed it in detail in his Sunan, and Ibn Hajar discussed it in al Talkhis.)
Where it is reported, and who authenticated it
The report “There is no marriage except with a guardian” is in Abu Dawud, in the Book of Marriage, chapter on the guardian, and in al Bayhaqi, and it was authenticated by Ibn Hibban and by al Hakim, who also went into length in tracing its routes.
There was disagreement over whether it is fully connected or sent. Al Hakim said that the narration in this subject is established from the wives of the Prophet ﷺ, Aishah, Umm Salamah, and Zaynab bint Jahsh.
He said that there are also narrations on this topic from Ali, Ibn Abbas, Muadhah, Abd Allah ibn Umar, Abu Dharr al Ghifari, al Miqdad ibn al Aswad, Abd Allah ibn Masud, Jabir, Abu Hurayrah, Imran ibn al Husayn, Abd Allah ibn Amr, al Miswar ibn Makhramah, and Anas ibn Malik, and he referred to Nasb al Rayah for further detail. (Reported in Abu Dawud number 2085, al Bayhaqi 7/107, authenticated by Ibn Hibban numbers 1243, 1244, and 1245, and by al Hakim 2/169. See also Nasb al Rayah 2/183 to 190.)
Al Tirmidhi’s comments on its routes and wording
Abu Isa said: This hadith is hasan. It was narrated by Yahya ibn Said al Ansari, Yahya ibn Ayyub, Sufyan al Thawri, Sufyan ibn Uyaynah, and more than one of the preservers, from Ibn Jurayj with wording like this.
It was also narrated by al Hajjaj ibn Artaah and Jafar ibn Rabiah, from Ibn Shihab, from Urwah, from Aishah. It is also narrated from Hisham ibn Urwah, from his father, from Aishah, from the Prophet ﷺ.
It is also narrated with the wording “without the permission of her patrons.” The word patron and the word guardian are one meaning here, and “the patrons” can also mean paternal cousins and the agnates.
He mentioned that this word is used in the Quran with this meaning. He also said that the word patron can also mean the one who freed a slave and the freed slave, and it can also mean helper, and he mentioned a Quran reference where it means helper.
His phrase “If they dispute” means that they differ and argue. He mentioned a Quran reference where “dispute” is used with this meaning.
The objection about Ibn Jurayj and Ibn Shihab, and the response
Some weakened this hadith because Ibn Jurayj said: “Then I met Ibn Shihab, so I asked him about it, and he rejected it.”
Yahya ibn Main said: No one mentioned this phrase from Ibn Jurayj except Ismail ibn Ibrahim, and Ismail ibn Ibrahim’s hearing from Ibn Jurayj is not strong.
The practice is upon the hadith of the Prophet ﷺ: “No marriage except with a guardian”, according to the majority of the people of knowledge.
This story about Ibn Jurayj was criticised by Ibn Hibban, Ibn Adi, Ibn Abd al Barr, al Hakim, and others. Even if the story were authentic, Ibn Hibban answered it in his Sahih, as al Hafiz al Zaylai, by saying that this story only misled someone who is not skilled in hadith.
He explained that a precise scholar may narrate a hadith, then forget it, and if he is asked later, he may not recognise it, and that this does not harm the authenticity of the hadith.
He gave an example from the Prophet ﷺ forgetting in prayer, and said that if forgetting can occur in that, then forgetting is even more possible for those below him from his ummah, since they are not protected from mistakes. (They criticised this story, and the response of Ibn Hibban is cited from his Sahih, al Hafiz al Zaylai 3/185.)
The view of many companions and later imams
This is the view of the people of knowledge among the companions and those after them. It is the view of Umar, Ali, Abd Allah ibn Masud, Abd Allah ibn Abbas, Abu Hurayrah, Aishah, and others. It is also the view of Said ibn al Musayyib, al Hasan al Basri, Shurayh, Ibrahim al Nakhai, Qatadah, Umar ibn Abd al Aziz, and others. It is also the view of Ibn Abi Layla, Ibn Shubrumah, Sufyan al Thawri, al Awzai, Abd Allah ibn al Mubarak, al Shafii, Ahmad, and Ishaq.
Umar ibn al Khattab رضي الله عنه said: A woman is not married off except with the permission of her guardian, or a person of sound judgement from her family, or the ruler. (Reported by Malik in al Muwatta 2/525, as a report without a full chain, from Said ibn al Musayyib.)
It is narrated from Abd al Rahman ibn al Qasim, from his father, that he said: Aishah would receive a proposal request for a woman from her family, and she would attend it.
Then when only the final binding part of the marriage remained, she would say to one of her family: “Marry her off,” because a woman does not take charge of the marriage contract.
Imam al Tahawi, in Maʻani al Athar, counted Abu Yusuf and Muhammad ibn al Hasan among those who say that it is not allowed for a woman to marry herself off except with the permission of her guardian. (Mentioned by al Tahawi in Maʻani al Athar 4/2.)
Al Shafii also reported a narration on this topic, and al Bayhaqi reported it from him, but its chain is weak because the narrator from Ibn Jurayj is not named, and because of Ibn Jurayj’s concealment of intermediaries. (Reported by al Shafii 2/318, and from him by al Bayhaqi 7/112. The chain is weak for the reasons mentioned.)
Those who allowed a woman to marry herself off, and some details
Some allowed a woman to marry herself off, and this is the view of the jurists of reasoning. Abu Thawr said: If she marries herself off with the permission of the guardian, the marriage is valid. If she marries without his permission, it is not valid, because of the hadith “Any woman who marries without the permission of her guardian.”
The meaning among the majority is that the guardian either concludes the contract for her, or he permits her to appoint a man to conclude the contract for her. If she appoints someone without the guardian’s permission, then it is invalid.
Malik said: If the woman is low in status, then she may marry herself off, or instruct someone to marry her off. If she is noble, then she may not. He said that the wording of the hadith is general in taking authority away from women, without any exception.
Legal points taken from the hadith
The Imam said: In the phrase “then her marriage is invalid” there is proof that the contract is not suspended waiting for the guardian’s later approval.
In the phrase “If he has consummated with her, then she has the dowry” there is proof that intercourse done under mistaken assumption makes an equivalent dowry binding, that the prescribed punishment is not carried out because of it, and that lineage is established.
The Imam Ash Shafi’i رحمه الله said: Whoever does this knowingly is punished, because of what is narrated from Ikrimah ibn Khalid, who said: I met a travelling group on the road, and among them was a previously married woman.
She placed her matter in the hands of a man among them, so he married her off to a man. Umar ibn al Khattab whipped the man who married and the man who conducted the marriage, and he cancelled her marriage. (Reported by al Shafii 2/319. The narrators are trustworthy, but it is disconnected because Ikrimah ibn Khalid did not reach that event.)
They argued by analogy with sale, because she is independent in it, and they interpreted the hadith that require a guardian as applying to a minor girl, and they used this analogy to restrict the general wording. This is an accepted method in legal theory, meaning that general wording can be restricted by analogy, but the hadith of Maqil ibn Yasar, which the author will mention later, removes this analogy.
“If they dispute, then the ruler is the guardian of the one who has no guardian”
The Imam said: This sentence supports what was mentioned, that the woman does not directly conduct the contract in any case. If her own contracting were valid, then it would have been left to her when guardians disagree, and it would not have been moved to the ruler. He explained that the dispute meant here is the dispute of wrongful preventing of marriage, not the dispute about who goes first.
He said: If the guardian wrongfully prevents marriage, and there is no other guardian at his level, then marrying her off goes to the ruler, not to a more distant guardian. Likewise, if the closest guardian is absent by the distance of travel shortening, then the ruler marries her off by deputy authority, according to al Shafii.
The jurists of reasoning held that a cut off absence transfers authority to a more distant guardian, similar to when the nearer one dies or becomes insane, in which case marrying her off goes to the more distant one by agreement.
Others differentiated by saying that death and insanity remove authority, while absence does not remove it, but since reaching him is not possible, the ruler takes his place, as in wrongful preventing.
If guardians are at the same level
If the woman has guardians at the same level, like brothers, sons of brothers, uncles, or sons of uncles, and they disagree about who conducts the contract, then if she gives permission to one of them, he is the guardian in this matter. If she does not name one, and they disagree, then a draw is made between them. If one of them goes ahead and marries her off with her approval to a suitable man without the permission of the rest, the marriage is valid and binding.
If he marries her off with her approval to a man who is not suitable, the rest may cancel it because of the shame that reaches them from a low status person entering their family line. If the closest guardian marries her off to a man who is not suitable with her approval, then the more distant guardian has no objection, because the more distant guardian does not have authority over her in that situation.
When the man is both a suitor and a guardian
If a man wants to marry a woman and he is also her guardian, or she has no guardian besides him, such as a paternal cousin or a freed slave woman, then the ruler marries her off to him. If the guardian marries her to himself with her approval, the people of knowledge differed. Some said it is not allowed, and this is the view of al Shafii. Others allowed it, and this is the view of the jurists of reasoning.
It was reported that al Mughirah ibn Shubah proposed to a woman for whom he was the closest in authority, and he instructed a man to marry her off.
It was also reported that Abd al Rahman ibn Awf said to Umm Hakim bint Qariz: “Will you place your matter with me?” She said yes, and he said: “I have married you.”
Al Shafii used as evidence that a woman does not conduct the contract by what follows.
Sharh As Sunnah by Al Baghawi (9/39-44)
Ibn Qudamah said: That marriage is not valid except with a wali. A woman does not have the authority to marry herself or anyone else, and she does not have the authority to appoint someone other than her wali to marry her.
If she does that, then the marriage is not valid. This was narrated from Umar, Ali, Ibn Masud, Ibn Abbas, Abu Hurayrah, and Aishah رضي الله عنهم.
It is the view of Said ibn al Musayyib, al Hasan, Umar ibn Abd al Aziz, Jabir ibn Zayd, al Thawri, Ibn Abi Layla, Ibn Shubrumah, Ibn al Mubarak, Ubayd Allah al Mudbari, al Shafii, Ishaq, and Abu Ubayd. It was narrated from Ibn Sirin, al Qasim ibn Muhammad, al Hasan ibn Salih, Abu Salih, and Abu Yusuf that she is not allowed to do that without the permission of the wali, and if she does it, then it remains suspended until he approves it.
Abu Hanifah said: She may marry herself and others, and she may appoint an agent in marriage. He argued that Allah Most High said: “So do not stop them from marrying their husbands” (al Baqarah: 232).
He said that Allah linked marriage to them, and forbade preventing them from it. He also argued that marriage is her exclusive right, and she is someone who can carry out matters herself, so it is valid from her, like selling her slave woman.
He also argued that if she owns the right to sell her slave woman, which is disposal over her person and all her benefits, then marriage, which is a contract over some of her benefits, is more fitting to be valid from her.
Our evidence is that the Prophet ﷺ said: “There is no marriage except with a wali.” It was narrated by Aishah, Abu Musa, and Ibn Abbas. Al Marwazi said: I asked Ahmad and Yahya about the hadith “There is no marriage except with a wali,” and they both said: It is authentic.
It is also narrated from Aishah رضي الله عنها that the Prophet ﷺ said: “Any woman who marries herself without the permission of her wali, then her marriage is invalid, invalid, invalid.
If he consummates with her, then she has the mahr for what he made lawful from her private part. If they dispute, then the ruler is the wali of the one who has no wali.” It was narrated by Imam Ahmad, Abu Dawud, and others.
If it is said: Al Zuhri narrated it, yet he denied it. Ibn Jurayj said: I asked al Zuhri about it and he did not recognise it. We say: No one reported this from Ibn Jurayj except Ibn Ulayyah. This is also what Imam Ahmad and Yahya said. And even if this were established, it would not be proof, because reliable narrators transmitted it from him.
So if al Zuhri later forgot it, that does not harm it, because no human being is protected from forgetfulness. The Prophet ﷺ said: “Adam forgot, so his offspring were made to forget.” Also, she is under guardianship in marriage, so she does not take charge of it, like a young girl.
As for the verse, then preventing her means refusing to marry her off, and this shows that her marriage belongs to the wali. This is also shown by the fact that it was revealed about Maqil ibn Yasar when he refused to marry off his sister. The Prophet ﷺ called him, and he married her off. Allah linked it to her because she is the place where it happens.
When this is established, then she is not allowed to marry anyone. It is also narrated from Ahmad that she may marry off her slave woman. This shows that her wording can be effective in marriage. From this, it would follow that she may marry herself with the permission of her wali, and marry off someone else through agency, and this is the view of Muhammad ibn al Hasan.
It should also be a view for Ibn Sirin and those with him, because the Prophet ﷺ said: “Any woman who marries herself without the permission of her wali, then her marriage is invalid.” Its meaning shows that it is valid with his permission.
Also, a woman was only prevented from acting independently in marriage because of weakness in her judgement, so it is feared that she may be deceived and that it may occur from her in a harmful way. This fear is removed when her wali permits it.
But the correct view is the first view, because of the general wording: “There is no marriage except with a wali.” This is given priority over an argument based on implication. Any claim of specifying it is based on what commonly happens, because most often a woman only marries herself without the permission of her wali.
The wisdom in preventing her is to protect her from directly doing what may point to boldness and lack of restraint, and from her leaning towards men, because that conflicts with the manner of people of protection and honour. And Allah knows best.
Al Mughni (7/7-8)
al-Mawsili the author of Al-Ikhtiyar li Ta’lil al-Mukhtar which has been an authoritative text among the Ahnaf for centuries says: The basis of Abu Hanifah’s view is the saying of Allah: “Until she marries another husband” (al Baqarah: 230). Allah also said: “There is no blame upon you for what they do with themselves in a lawful manner” (al Baqarah: 234).
In another verse He said: “In a lawful manner” (al Baqarah: 240). In these verses, Allah attributed marriage and action to the women themselves. This shows that their wording is valid and that it takes effect, because He attributed it to them independently, without mentioning anyone else alongside them.
If a woman marries herself to a suitable man with a mahr equal to that of her peers, then she has acted lawfully regarding herself, and there is no blame upon the guardians in that matter.
Ibn Abbas narrated that a young woman came to the Prophet ﷺ and said: O Prophet of Allah, my father married me to the son of his brother in order to raise his low status, and I dislike him.
The Prophet ﷺ said to her: Approve what your father has done. She said: I have no desire for what my father has done. He said: Then go and marry whom you wish. She said: O Messenger of Allah, I did not dislike what my father did, but I wanted women to know that fathers have no authority over the affairs of their daughters.
Evidence is taken from this narration in several ways. The first is his saying ﷺ: Then marry whom you wish. The second is that she said this and he did not object to her, which shows that it is established, because if it were not established he would not have remained silent.
The third is his saying: Approve what your father has done, which shows that his contract was not binding upon her. This is evidence for our companions that the contract is also dependent upon approval.
In al Bukhari it is narrated that Khansa bint Jidham was married off by her father while she disliked it, so the Prophet ﷺ annulled the marriage. It is also narrated that a woman married off her daughter with her consent. The guardians came and disputed the matter before Ali رضي الله عنه, and he approved the marriage.
This is evidence that marriage can be concluded through the wording of women, and that he approved a marriage without a wali because the guardians were absent. This is because she acted within her exclusive right, without causing harm to anyone else, so it takes effect just like her disposal of her wealth.
Guardianship in marriage is established more quickly than guardianship over wealth. For this reason, it is established for relatives other than the father and grandfather, while it is not established for them in wealth matters.
Marriage is her exclusive right, to the extent that the wali may be compelled to carry it out when she requests it and fulfils its requirements. She is qualified to take full possession of her rights. However, suitability is the right of the guardians, so she does not have the power to remove their right.
As for the hadiths mentioned, they are opposed by what we have narrated. Either the matter returns to qiyas (analogy), which supports our view, by comparing marriage to wealth and to men, or the two hadiths are reconciled. In that case, what we narrated is applied to a free, sane, adult woman, while what you narrated is applied to a slave woman.
This reconciliation is supported by narrations that say: Any slave woman who marries herself. Thus the unrestricted is carried upon the restricted, or preference is given. Preference lies with us, because what we have mentioned is free from criticism, while what they narrated has been criticised.
It has been reported from Abu al Abbas al Marwazi that he said: I heard Yahya ibn Maeen say: Three hadiths are not established from the Prophet ﷺ: Every intoxicant is forbidden, Whoever touches his private part must perform wudu, and There is no marriage except with a wali and two upright witnesses. Ahmad ibn Hanbal and Ishaq ibn Rahawayh agreed with him.
We also say that a woman is the wali of herself, so it is not a marriage without a wali. Why then do you say that she is not a wali. If you had said that, you would not have needed the hadith.
Likewise, the other hadith is from the narration of Sulayman ibn Yasar from al Zuhri, and it is weak. Al Bukhari weakened it and rejected his narration. It is also narrated that Malik and Ibn Jurayj asked al Zuhri about this hadith and he did not recognise it. When a narrator denies knowledge of a report, that indicates its invalidity, just as with principles and branches.
It is also from the madhhab of Aishah رضي الله عنها that marriage through the wording of women is allowed. She married the daughter of her brother Abd al Rahman while he was absent in Syria. This shows either that the hadith is not authentic, or that she did not narrate it, or that it was abrogated, or that what we have mentioned is stronger.
As for their claim that she has deficient judgement, we say that what is considered in the matter of guardianship is general soundness of mind and adulthood, without regard to increase or decrease.
People differ greatly in judgement and intellect, and this difference is not taken into account in the matter of guardianship. One who has complete intellect and judgement has authority over himself and his wealth just as one with less of it. How many women are more complete in intellect and firmer in judgement than many men.
Al-Ikhtiyar li Ta’lil al-Mukhtar by al-Mawsili (3/91-92)
