Fatwa: 424

Category: fatwas about marriage

The condition of guardianship upon the Muslim woman

The question:

I would like to get married with a Muslim Hungarian woman whose parents are Christians. So, who will be her guardian? And is the legal contract (which is according to the Sharia) enough, because making it official (in the concerned services) requires complicated procedures?

The answer:

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.

The Muslim woman gets married in any case (whether her parents are Muslims or not…), and among the conditions of the guardian is to be Muslim and that the person who takes him as a guardian should be Muslim too. Hereupon, it is not permissible that a non-Muslim be the guardian of a Muslim even if it is her father, in accordance with Allah’s saying:

﴿وَلَنْ يَجْعَلَ اللهُ لِلْكَافِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلاً﴾ [النساء: 141].

The meaning of the verse:

﴾And never will Allâh grant to the disbelievers a way (to triumph) over the believers.﴿ [An-Nissâ' (The Women): 141].

And the verse:

﴿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].

If she does not find a guardian, then she should resort to a Muslim judge if possible, in accordance with the Prophet’s صلَّى الله عليه وسلَّم saying: “If there is a dispute, the sultan (man in authority) is the guardian of the one who has none.”⁽¹⁾ If it is not possible to resort to the sultan, then if an official imam in any mosque can marry her, he could be her guardian in such case. Otherwise, any Muslim can marry her, as people need marriage. However, they (people) should seek the best possible guardian, and the Muslim who is her guardian and marries her – as there is no guardian -, his guardianship is considered by way of arbitration, and “The one we appoint as a judge is a substitute for the ruler” as it is reported about Ash-Shâfi`i.

Furthermore, the contract which is set according to the Sharia is not sufficient alone to assure the continuation of the conjugal life. It should be legalized and officialized in the concerned services so that all the rights of the husband and wife, currently and in the future, like inheritance, children and others will be preserved.

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, Rabî`Al-Awwal 9^th, 1427H.
Corresponding to: April 6^th, 2006.