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THE BOOK OF MARRIAGE – Book Sample

Obligatory elements for the validity of marriage

A guardian – THE BOOK OF MARRIAGE

Marriage is not valid without a guardian (wali),

[There is no marriage contract except with a guardian. As Ibn ‘Arafa says, the guardian is either her owner (in the case of a slave), or her father or male relative, or an agent or guardian, or the authority(the ruler) or someone who is Muslim.

Preconditions for that are being Muslim, free, adult, sane and male. Integrity is not a precondition for the validity of the contract in the famous position, but part of its perfection, nor is common sense.

So the fool can make a contract for his daughter with the permissible of his guardian according to Ibn al-Qasim. This is a precondition of validity and the contract is not valid without a guardian by the statement of the Prophet, “A woman does not give herself or another woman in marriage. The woman who gives herself in marriage is a fornicatress.” (as-Daraqutni who said that it is sahih and Hasan.) If it occurs without a guardian, then the marriage is null and void both before and after consummation, even if she gives birth to several children. There are two transmissions about whether the nullification is a divorce or not.]

A dowry a dowry,

[The dowry is a precondition for the validity of consummation because of the words of the Almighty “Give women their dowry as an outright gift.”

(4:4)]

Two witnesses and two legally acceptable witnesses. [Having two witnesses is also a precondition for the validity of consummation, not for the contract. Itis a precondition that the two witnesses of the marriage be reputable, based on what Ibn Hibban

transmitted in his Sahih: the Prophet said, “There is no marriage except with a wali and two legally acceptable witnesses.” Marriage without those preconditions is invalid according to the hadith. If there are no legally acceptable witnesses, then there should be a lot of witnesses, like 30 or 40.

One of the preconditions of the validity of the contract is the form of the contract from the wali and husband or agent. The guardian must use an expression which would entail permanent transfer like “I have given to you in marriage”. The husband must use an expression which entails acceptance, like “I have accepted.” The order is not a precondition, but is recommended. If the husband speaks first and then the guardian speaks after him, the contract is sound as long as the two responses are immediate; a slight difference does not impair the contract as opposed to a major difference. This would be, for instance, if a man who is ill were to say, “If I die from this illness, I have given my daughter in marriage to so-and-so,” and then dies a month later, and the husband accepts the contract after his death. The marriage is not valid.

NOTE: A marriage is contracted by the acceptance and answer, even if it was intended a joke on both sides because marriage is a serious matter.]

32.1d.Witnesses must be present at the contract

If these two are not present to witness the actual making of the contract, it is not permissible for the couple to consummate their marriage until the witnessing has taken place.[i.e. the guardian and husband. In one text, it has the singular, meaning the husband. If it is consummated without witnessing, the marriage is invalidated with a final divorce and they receive the hadd-punishment if they did not make it known and do not have the excuse of ignorance and admit intercourse. If they make it known, there is no hadd, especially they have a feast, drums and one witness.]

32.1e. Minimum amount of dowry

The smallest acceptable amount for a dowry is a quarter of a dinar. [That by which the contract becomes valid. The dinar is of pure gold and in silver it is three dirhams of pure silver. It can be an equivalent value in goods. There is no maximum because the Almighty says “Give one of them a qintar.” (4:20)]

32.2 The authority of the guardian

32.2a. A father arranging the marriage of a virgin daughter

A father can arrange the marriage of his virgin daughter without her permission even if she is

beyond the age of puberty. It is up to him whether he consults her or not.

[To whomever he wants for the dowry he wishes, even for less than a suitable dowry. He can give her choice, and it states in al-Jawahir and elsewhere that it is recommended that he ask her permission.]

32.2b. Someone other than the father arranging the marriage of a virginHowever, if anyone other than the father is arranging the marriage of a virgin, such as a guardian appointed in the father’s will or anyone else, he cannot give her in marriage unless she is beyond the age of puberty and has given her consent. In this case her silence is taken as consent.

[It says in the Mudawwana that an orphan is not given in marriage by her guardian until she comes of age and gives permission. Ibn Naji said, “unless there is a will from the father to marry her to a certain person and then he acts in loco parentis. There is a text in the Mukhtasar which states that the guardian as the same position as the father in compulsion to marriage with two preconditions. One is that he the husband is specified and the other is that the father commands that. The shaykh states after this, “The girl is not married unless her father commanded that she be married.” What he mentioned about other relatives than the guardian, like the grandfather and brother, is known in the School.]

32.2c. A woman who has been married before

A woman who has already been married cannot be given in marriage, by her father or anyone else unless she herself agrees to it and gives verbal consent.

[When she is adult, sane and free and free has not lost her virginity through injury or fornication, be she sensible or foolish, by her father or anyone else. It is limited to the adult instead of the child who loses her virginity before becoming an adult. His marriage is not dependent on her consent. “Sane” excludes the mad woman. Her father can compel her, even if she has children. The judge can also compel the adult mad women if she has no father.

What is mentioned about asking her permission is by word, as Malik, ash- Shafi’i, and Muslim transmitted, “The widow is more entitled to herself than her guardian, and the virgin is asked for consent for herself, and her consent is her silence.” What is meant by the widow is the non-virgin.

The difference between the two is the shyness which is found more fully in the virgin rather than the non-virgin.

It is reported from Ibn al-Qassar that modesty has ten parts: nine in women and one in men.

When a woman marries, a third of it goes. When she gives birth, two- thirds is gone, and if she fornicates, it is all gone.]

32.2d. The necessity of the consent of the guardian

A woman can only be married if she has the consent of her guardian or someone suitably qualified from among her people, such as one of her male relations, or the governor.

[Or her agent since a guardian is a precondition for the validity of the contract – there is no disagreement about that with us – or with the permission of someone qualified, which means those who possess the preconditions of guardianship which are: being male, free, sane, adult, not in ihram, and not a unbeliever for a Muslim woman. The ruler acts in default of such a person.]

32.2e. Lowly women

There is a difference of opinion regarding lowly women (daniyya) as to whether they can have a guardian that is not related to them or not.

[This is the woman who has neither beauty, money nor position. When she has beauty, money or position, she is noble. Position is like lineage and descent, or a noble father. A guardian who is not related is a Muslim,

i.e. he is neither a guardian nor one qualified from her family nor a client nor a ruler when there is a particular guardian. Ibn al-Qasim said that she is permitted to appoint him even when there is a relative. Ash-hab said that that is not permitted unless there is no relative. So the two shaykhs agree on the validity but differ about when this can be done. Ibn al-Qasim says that it is valid although disliked, when is the reliable position, while Ash-hab said that it is not.]

32.2f. Order of precedence in matrimonial guardians

A woman’s son has more right to be her marriage guardian than her father and her father has more right than her brother. After this the nearer the relationship the greater the right.

[The son is a closer relative because he is the most entitled of her relatives after her father. The father is more entitled than the brother (full or half) because the brother is not as close as than the father and the father will debar him from inheritance.]

32.2g. The marriage is valid when the more distant acts as guardian However, if the more distant relative acts as guardian the marriage is nevertheless still valid.

[Even when a nearer relative exists, like the brother. The marriage is valid because the order between them is only about suitability. Differing from it is only disliked provided the marriage is with an equal.

If the husband is not an equal, then it is obliged for the closer relative to reject the marriage, even if the woman is pleased with it. If he does not reject it, it is presented to the ruler, i.e., it is obligatory to reject it and she is not permitted to consent. It is invalid.]

32.2h. A guardian appointed in a will

A guardian appointed in a will can arrange the marriage of a male child under his guardianship[i.e. he can compel him to marry, like the father, when that has benefit, like marrying him to a rich or noble woman.]

32.2i. The limitations of such a guardian but he cannot arrange the marriage of a female child unless the father has given him specific instructions to do so. [And if he has specified the husband, when he says “Marry her to so-and-so.” According to the Mukhtasar, it is enough that he commands her to compel her to marry that he can marry her to whomever he wishes.]

32.2j. Agnate relatives

Male relatives on the maternal side are not considered suitable as marriage guardians who should rather come from the paternal side. [To act in giving in marriage, whether they are heirs like the brothers by the mother or not, like the maternal uncle. The guardians come from the paternal side, the stronger being advanced first. So the full brother comes before the half-brother by the father. Ibn ‘Umar said, “It is clear from his words that the guardian is only one of the paternal relatives, and there is a contradiction when he says ‘someone suitably qualified from among her people, or the governor.’ The reply is that the what is meant here about the relative being only from the paternal relatives does not preclude the one who is not a paternal relative being a protector or ruler, and so it is relative.]……

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