Do Muslim women need a guardian (wali) for a marriage contract according to the Qur’an?

And marry the unmarried among you and the righteous among your male slaves and female slaves. If they should be poor, Allah will enrich them from His bounty, and Allah is all-Encompassing and Knowing.” (Holy Qur’an 24:32)

“When you divorce women, and they have reached their term, do not forbid them from marrying (yankihna) their husbands, when they have agreed together honorably.” (Holy Qur’an 2:232).

He said, “Indeed, I wish to wed you one of these, my two daughters, on [the condition] that you serve me for eight years; but if you complete ten, it will be [as a favor] from you. And I do not wish to put you in difficulty. You will find me, if Allah wills, from among the righteous.” (Holy Qur’an 28:27)

Allah knows best (who are) your enemies. Allah is sufficient as a Guardian, and Allah is sufficient as a Supporter. (Holy Qur’an 4:45)

These verses will be used to support that a woman does not need a wali (guardian) in order to get married to any Muslim man she chooses to marry.

Now it should be noted here that in Islam marriage is a contract and not a sacrament.  So what we are asking here is does a Muslim woman have the right to contract her own marriage to a man according to the Holy Qur’an?

Contrary to the view held by some among the Muslims that if a Muslim woman gets married in any circumstance without a guardian (wali) than her marriage is not valid in Islam.

In particular after some thought and consideration it will be shown that the Hanafi school of jurisprudence is closer to the Holy Qur’an than the Maliki, Shafi’i & Hanbali schools of jurisprudence on this matter.

Since my position is not to take jurisprudence that clashes with the Holy Qur’an I feel that the Hanafi school of jurisprudence has the stronger evidence. It is also the position closest to the Holy Qur’an.

It also should be noted that even though the Hanafi school is closer to the Holy Qur’an they also discourage a woman marrying a man without the consent of her guardian (wali).  This is logical as anyone knows that the ideal behind marriage is a union between man and wife and also between families.

Of real interest here is the fact that places where the Hanafi school of jurisprudence holds sway namely: India, Bangladesh and Pakistan, there is allot of interference from family, culture, and customs that do more to impede a person’s choice of marital partner than any other region of the world currently. (Not only my opinion but that of Muslims who come from India, Bangladesh and Pakistan)

The Hanafi position is in keeping with what Allah has allowed in the Holy Qur’an.

From the oral traditions.

Yahya related to me from Malik from Malik from Abu Hazim ibn Dinar from Sahl ibn Sad as-Saidi that a woman came to the Messenger of Allah, may Allah bless him and grant him peace, and said, “Messenger of Allah! I have given myself to you.” She stood for a long time, and then a man got up and said, “Messenger of Allah, marry her to me if you have no need of her.” The Messenger of Allah, may Allah bless him and grant him peace, said, “Do you have anything to give her as a bride-price?” He said, “I possess only this lower garment of mine.” The Messenger of Allah, may Allah bless him and grant him peace, said, “If you give it to her you will not have a garment to wear so look for something else.” He said, “I have nothing else.” He said, “Look for something else, even if it is only an iron ring.” He looked, and found that he had nothing. The Messenger of Allah, may Allah bless him and grant him peace, said, “Do you know any of the Qur’an?” He said, “Yes. I know such-and-such a sura and such-and-such a sura,” which he named. The Messenger of Allah, may Allah bless him and grant him peace, said to him, “I have married her to you for what you know of the Qur’an.”

Now we can notice that the Messenger (upon whom be peace) did not object and inquire of the woman if she had permission from her guardian.  Now some people may counter that in this instance that the Blessed Messenger (upon whom be peace) was the guardian.  This cannot be deduced from this text and is simply speculation.

This oral tradition also flatly contradicts another popular oral tradition which is attributed to the Blessed Messenger (upon whom be peace).

‘la nikah ila biwali’  translated as ‘There is no nikah without wali’. (Sunan  of Abu Dawood 2080, Narrated Abu Musa)

Now when the Hanafi school of jurisprudence looks upon this they understand it to refer to those women who may have not reached an age of maturity, or those who may have some mental deficiency.

What point that occurred to me when analysing this oral tradition is the extra protection that it affords women. For example  all of the jurist (that I am familiar with) have determined that this oral tradition refers to women. Either a young man would not have the capacity (financially and so forth) to even think about marriage; or if he had a mental deficiency he may also not be considered as a candidate for marriage.

The point here is that Islam did not come to completely eradicate people’s culture and their customs.

Two schools of jurisprudence namely the Shafi’i and the Maliki believe that a girl whom is a virgin can be forced to marry someone even if it be against her wishes.  This to me seems more based upon local culture and customs than on anything mandated in the Holy Qur’an.

However, if we examine the Holy Qur’an in light of other text you could deduce the (of the Shafi’i & Maliki) from the following verse of the Holy Qur’an.

He said, “Indeed, I wish to wed you one of these, my two daughters, on [the condition] that you serve me for eight years; but if you complete ten, it will be [as a favor] from you. And I do not wish to put you in difficulty. You will find me, if Allah wills, from among the righteous.” (Holy Qur’an 28:27)

Though this verses does not state that the daughters were virgins or that they objected to the marriage one could deduce from this text that this was the case.

However, there are two other text that one should look at:

And marry the unmarried among you and the righteous among your male slaves and female slaves. If they should be poor, Allah will enrich them from His bounty, and Allah is all-Encompassing and Knowing.” (Holy Qur’an 24:32)

This text is general.If a man does not need a guardian the same is true for the woman. There is nothing in the mental capacity of a man that would make him more entitled than a woman to have his own marriage contract, without a guardian (wali).

This is a proof text that women can marry without a wali (male guardian).

“When you divorce women, and they have reached their term, do not forbid them from marrying (yankihna) their husbands, when they have agreed together honorably.” (Holy Qur’an 2:232).

When one looks at the context of this verse the immediate thought is that it refers only to women whom are divorced. It seems that this verse is general and applies such a prohibition to the ex-husband and to all people.

One may feel that I would readily embrace this point of view as it supports the position I have outlined in this entry. I would be inclined to support this position, however, I feel it ignores the context.  Such a permission it seems here is only given to women whom are divorced.

This is a proof text that divorced women can marry without a wali (male guardian).

Perhaps the hukm or the lesson here is that a woman whom has been through marriage is now more keen or savy in how to negotiate and deal with matters of marriage.  Thus, this woman will be able to contract her own marriage without the need of a guardian (wali).

For me the strongest proof is what is given in the (Holy Qur’an 24:32). as quoted above.

The following verse is also proof enough for me.

Allah knows best (who are) your enemies. Allah is sufficient as a Guardian, and Allah is sufficient as a Supporter. (Holy Qur’an 4:45)

This verse is general, and there never is a situation in life in which Allah would not be sufficient enough as the Guardian (wali).

Other thoughts to share with you.

The Holy Qur’an does not go into fleshed out details about how much dowry is to be given.  The Holy Qur’an does not go into fleshed out details about the amount of witnesses that are needed for the contract.

It is interesting to me that the Sunni Muslims say there has to be at least two witnesses for the marriage contract to take place but no witness for the divorce to take place.

The Shi’a Muslims say that there is no need for any witness for the marriage contract to take place but there needs to be two witnesses for the divorce to take place.

Though I digress from the topic I wanted to say that I feel the Sunni position is closer to Prima-Qur’an on the issue of marriage and the Shi’a position is closer to Prima-Qur’an on the issue of divorce.

Why do I say this?

The sunni position I believe is strong in having witness for marriage because of the following:

And for you is half of what your wives leave if they have no child. But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt. And for the wives is one fourth if you leave no child. But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt. And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one of them is a sixth. But if they are more than two, they share a third, after any bequest which was made or debt, as long as there is no detriment [caused]. [This is] an ordinance from Allah , and Allah is Knowing and Forbearing. (Holy Qur’an 4:11)

It would seem to me through inference that there would be witnesses to the marriage. If there is no public record of the marriage it could be problematic. Otherwise if there is no witness, no judge than how would one determine if these people even have children?

The shi’a position I believe is stronger for witness for divorce because of the following.

And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah . That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah – He will make for him a way out (Holy Qur’an 65:2)

Something to say to Western culture.

To the West (conservatives & progressives) I say it is still a culture and custom for many people to force their children to marry even against their wishes. It is not our business to interfere or to bring them ‘our freedoms’.   If you are so intent on doing this you may want to fight against forced prostitution that takes place in so many countries. This would seem more worthy of the bluster that comes from the West (conservatives & progressives) concerning women and rights.

Something to say to Eastern culture.

To the East I say that you should understand that a ‘love marriage’ is really not that different than an ‘arranged marriage’. If you truly believe that Allah has power over all things and with Allah is the decree, than in reality all marriages; even if they be ‘love marriages’ are ‘arranged’ by Allah!

Parents can never given blessings to their children’s marriages.  Parents can simply give consent. This is because blessings do not come from the parents, the blessings come from Allah!

I also want to take some time to refute a proposition given on this web site:

http://www.peopleofsunnah.com/fiqh/rulings/marriage/62.html

There is no such thing as a ‘ghair kufu’ (unsuitable) partner for a woman or man other than what Allah states in the Holy Qur’an.

#1) Muslims who have committed adultery/fornication can not marry Muslims who are chaste (virgins).

#2) Muslim women can only marry Muslim men.

#3) Muslim men can marry Muslim, Christian & Jewish women.

This idea of a ‘ghair kufu’ is simply a stipulation that some cultures will try to employ to over ride Allah’s ruling that a Muslim woman and a Muslim man can of their own volition marry whom they choose.

For example when it comes to the Hanafi school of jurisprudence it is usually grounded in places (India, Pakistan, Bangladesh) in which local culture, customs and tribal affiliations have a strong influence over an individual’s life.  So what you see is that the Hanafi scholars will go rushing to defend their culture by making this stipulation of ‘ghair kufu’.  So who do you think is going to decide who is good for their daughter?  So this is where it gets complicated. I personally have known and spoken to many sisters who’s lives were destroyed by this.

Also the idea of ‘ghair kufu’ is refuted by the following verses:

“And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you. And do not marry polytheistic men until they believe. And a believing slave is better than a polytheist, even though he might please you. Those invite you to the FIre, but Allah invites to Paradise and to forgiveness, by His permission. And He makes clear His verses to the people that perhaps they may remember.” (Holy Qur’an  2:221)

So here Allah (swt) is telling us that marrying a slave or someone who may have a lower social rank is definitely better than marrying a polytheist even though they may have high social standing.

May Allah (swt) heal their hearts and heal the wounds of the ummah. Amin!

Conclusion:

Based upon what Allah has stated:

And marry the unmarried among you and the righteous among your male slaves and female slaves. If they should be poor, Allah will enrich them from His bounty, and Allah is all-Encompassing and Knowing.” (Holy Qur’an 24:32)

Both men & women can marry whom they choose with out the need of a Wali (guardian).  The Hanafi position on this matter is closest to the Qur’an than the other schools of jurisprudence.  We live in a day and age in which many parents put too many restrictions upon their children to get married.

These parents will not let their children marry non-Arabs, Africans, Converts to Islam among other things. In my personal experience there is not a nationality or race among the Muslims that is spared from this.  These parents will also put restrictions upon their children marrying people whom do not share their particular view on Islam, or their particular political views.

These parents should be thankful that someone wants to marry their husband/daughter. There is a real issue among Muslim countries and communities of Muslim women whom are spinsters.

I point out the plight of Muslim women because of the juristic view points of most of the Muslims today. Namely that these women need guardians (and the men do not). So these women are under the mercy of their parents, whom may prevent them from marrying, whom the Holy Qur’an says they have the permission to marry.

I would say to those Muslim women that we should obey our parents, and we can still love our parents, and respectfully disagree with them.  We can disagree with them especially in matters of your relationship to the divine.

You may also be interested in reading about polygyny, and marriage to the people of the book here:  https://primaquran.wordpress.com/2017/11/06/imam-shafi-versus-gods-words-the-holy-quran/

You may also be interested in reading about divorce according to the Holy Qur’an here: https://primaquran.wordpress.com/2017/10/23/divorce-according-to-the-quran-imamiyyah-position-of-divorce-aligns-with-prima-quran/

May Allah (swt) open your eyes and your hearts.

“So have they not traveled through the earth and have hearts by which to reason and ears by which to hear? For Indeed, it is not eyes that are blinded, but blinded are the hearts which are within the breasts.” (Holy Qur’an 22:46)

2 Comments

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2 responses to “Do Muslim women need a guardian (wali) for a marriage contract according to the Qur’an?

  1. Mohumud

    Wouldn’t you also say that the Qur’an is more lenient towards the weighing of justice between wives as would seem more rigid in the Sunnah? The details, in my opinion for marriage is often culturally based and it is pretty much open to negotiation. What would you say?

    • Mohumud ,

      Yes I would agree with that. In fact if you read the Muwatta of Imam Malik what gets the very strong feeling that ‘Sunnah’ was an incorporation of local culture and customs (‘urf) and so forth that did not go against the injunctions of the Qur’an that were explicitly stated.

      Thus, a great deal is left to the diversity of human culture to develop its norms, and ethos as being a “collective sunnah”.

      I believe that when Muhammed (saw) was speaking about ‘his sunnah’ he was talking about 1) Being an Arab 2) Being an Arab of a particular tribe and 3) His insight of a person of great moral character. He could have decided by use of his own reason not to over burden camels, in the same way today we may be against keeping chickens in coops crowded together. etc…

      So yes I would say that.

      Thank you!

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