Category: fatwas about marriage
The guardian preventing a guarded woman from marrying a suitable man
A man whose wife has died, has a daughter of marriageable age. Many suitors came to ask for her hand, but her father did not accept any of them, in order to let her at his service. His daughter fears that if she remains till a late age, she will not get married. So, does the guardianship move from the father to another, in order to remove the harm from her?
All praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon whom Allah sent as a mercy to the Worlds, upon his Family, his Companions and his Brothers till the Day of Resurrection.
We distinguish in the fact of a guardian refusing the marriage of his ward between two cases:
- If the guardian refuses to marry his ward for legal and acceptable reasons (in relation to Sharia) as if the suitor is not compatible with her, or because there is another suitor who is more suitable in view of his religious commitment and good character; his guardianship remains then valid and it is not transferred to another person.
- However, if the refusal is based upon reasons which contain injustice and infringement on her rights for marriage, like if a suitor whose religious commitment and character are good asks for her hand, but the guardian refuses to marry her, this is then preventing his ward from marriage. The guardian has not the right to do such thing and it is unanimously considered forbidden by the scholars, as it is reported by Al-Bukhâri and others: “That the sister of Ma`qil Ibn Yassâr was given in marriage to a man who later divorced her and kept away from her till her period of `Idda(1) expired. When he demanded her hand in marriage, Ma`qil got angry out of pride and haughtiness and said, “He kept away from her when he could still retain her, and now he demands her hand again?” So, Ma`qil disagreed to remarry her to him. Then Allah revealed:
﴿وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلاَ تَعْضُلُوهُنَّ ...﴾ [البقرة: 232].
The meaning of the verse:
﴾And when you have divorced women and they have fulfilled the term of their prescribed period, do not prevent them…﴿ [Al-Baqara (The Cow): 232], until the end of the verse.(2)
So, the Prophet صلَّى الله عليه وسلَّم sent for Ma`qil and recited to him (Allah's order) and consequently Ma`qil gave up his pride and haughtiness and yielded to Allah's order.”(3)
As for the case of preventing the woman from marriage, the guardianship is transferred directly to the general authority, namely that of the Muslim judge if the matter is carried before him, and it will not be transferred to the one who comes after the main guardian among the legal guardians, since preventing from marriage is an injustice, and the authority of removing injustice is attributed to the Muslim judge.
However, if there is no Muslim judge, or it is difficult for the woman to reach him, then one of his guardians who come after the guardian who prevented her from marriage will marry her, and his guardianship will be considered in this case by way of arbitration, and “The one we appoint as a judge is a substitute for the ruler” as it is established by Ash-Shâfi`i.
As for the father, he can get married with a woman who will be at his service. If the woman does not find an official imam, then any believer can be her guardian and marry her, in accordance with Allah’s عزَّ وجلَّ saying:
﴿وَالْمُؤْمِنُونَ وَالْمُؤْمِنَاتُ بَعْضُهُمْ أَوْلِيَاءُ بَعْضٍ﴾ [التوبة: 71].
The meaning of the verse:
﴾The believers, men and women, are Auliyâ' (helpers, supporters, friends, protectors) of one another﴿ [At-Tauba (The Repentance): 71].
The perfect knowledge belongs to Allah عزَّ وجلَّ. Our last prayer is all praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon our Prophet, his Family, his Companions and Brothers till the Day of Resurrection.
Algiers, Dhu Al-Qa`da 2nd, 1417H.
Corresponding to: March 11th, 1997.
(1) Allah's prescribed waiting period for a woman after divorce or death of her husband, after the expiry of which she can remarry another person. (See the Qur’an, sura 65).
(2) The rest of the verse: “…from marrying their (former) husbands, if they mutually agree on reasonable basis. This (instruction) is an admonition for him among you who believes in Allâh and the Last Day. That is more virtuous and purer for you. Allâh knows and you know not.”
(3) Reported by Al-Bukhâri, chapter of “Divorce”, concerning the fact that “…their husbands have the better right to take them back” in that period, and how could one take his wife back within the prescribed period (of `Idda) if he divorced her once or twice (hadith 5331), on the authority of Ma`qil Ibn Yassâr رضي الله عنه.