Freedom of Marital Choice in Islam

Freedom of Marital Choice in the Light of the Qur’an and Ahadith and its Relevance to Muslim Civil Laws   

– Asiff Hussein

 This paper deals with a much disputed aspect of Islamic civil law, namely, the position of the wilayat (marriage guardianship) and the legal capacity of Muslim women to contract marriage in accordance with the rules laid down in the Qur’an and the Sunnah or the Prophetic Traditions. The purpose of this paper is to elucidate that Muslim women are conceded the right to contract a marriage at their own discretion even sans the consent of their awliya or agnatic guardians. It will take into consideration the views of the two main schools of Sunni Muslim jurisprudence, namely, the Hanafi and the Shafi’i in this matter and examine their respective positions from an Islamic standpoint.

Marriage in Islam could be defined as a civil contract entered into by a contract of offer or proposal (ijab) and acceptance (qabul) by the mutual consent of the bridegroom and the guardian or agent (wali) of the bride in the presence of two adult male witnesses. The wali or marriage guardian is, in the first instance, the father and in the second instance, the paternal grandfather, according to both the Hanafi and Shafi’i schools. This is followed by other close male relatives on the agnatic side, depending on the position of the madhhabs (schools of belief) regarding the matter. According to the Hanafis the right of jabr (i.e. the power to impose the status of marriage on a ward) applies to all minors, whether male or female, and no sooner they attain puberty (bulughiyyah), which in the absence of evidence to the contrary is fixed by law at 15 years, they are freed from their wali’s right of jabr and may validly enter into a marriage contract at their own discretion.

According to the Hanafi madhhab, the consent of an adult virgin, widow or divorcee is essential for the validity of the marriage. Consent may, however, not necessarily be expressed. In the case of virgins it may be implied, for silence may be taken as consent. Thus, once a girl attains puberty, the role of wali automatically changes to that of an agent, though he may still be known as wali. This is a nominal wilayat, the wali being provided for reasons of propriety and decorum, as is also necessary for arranging the terms of the marriage settlement as well as to act as a check against any rash or unsuitable choices that may be made by his ward, especially, if she is young and immature. However, it is agreed that the will of the woman shall prevail. In fact, a woman may appoint an agent (wakil) as her wali and so contract a marriage of her own liking. The consent of the wali (i.e. her natural guardian; her father. grandfather or brother as the case may be, as distinct from an appointed wali is by no means necessary either for a grown up virgin (bikr) or a previously married woman (thayyib). When the wali acts for her, it is presumed that he acts on the power granted to him by her. Under certain conditions, women who have been given in marriage during their minority, are given the option of unilaterally repudiating such marriage upon attaining majority but this will be dealt with later on.

The Shafi’i attitude is in sharp contrast to the Hanafi position. According to the Shafi’i jurists, the consent of a virgin, whether minor or adult, to a marriage, is not necessary. Such a girl remains entirely at the disposal of her wali and cannot enter into a valid marriage contract sans his consent. The consent of the previously married woman (i.e. a widow or divorcee) is essential for the marriage, but even then she is still bound to her wali, as his consent too is essential. In case the wali withholds his consent, however, unreasonable it may be, it is not possible for remarriage to take place

We shall now examine these respective positions regarding the wilayat from an Islamic standpoint. The Qur’an appears to be silent on the question of consent However, it implies that consent is necessary as it describes marriage as a covenant (mithaq), i.e. a covenant between husband and wife, as in the Surah al-Nisa (Verse 21):

And how could ye take it when ye have gone in unto each other, and they have taken from you a solemn covenant (mithaqan ghalizan).

As for the Sunnah, we have the following two traditions of the Prophet (peace be upon him)

1)      ‘Adi Ibn `Umayrah has narrated a saying of the Prophet (peace be upon him): “No woman who has been previously married (thayyib) should be remarried until she gives her permission; similarly a virgin (bikr) should not be married until her consent has been obtained”  ¹

2)      Abu Hurayrah has reported that the Prophet (peace be upon him) said: “A grown up girl shall be asked permission about herself. If she is silent, it is her permission; and if she declines, there shall be no compulsion on her”  .²

Thus it is evident from the above ahadith that the Prophet (peace be upon him) made it explicitly clear that the consent of both the virgin and the thayyib is an indispensable condition, a sine qua non, for a valid marriage. As to the question whether the consent of the agnatic wali is essential, we would have to deal with this at some length as this is an intricate matter that has been subject to much discussion and dispute. The widely circulated hadith attributed to the Prophet (peace be upon him), stating that the marriage of a female who gets married without the permission of her guardian (wali) is void ^{3 ,} appears to be either a fabricated or defective hadith. AI-Zuhri, who figures in the isnad (chain of transmitters) is said to have disclaimed any knowledge of the hadith^4, and considering the reputation of the other transmitters, it is possible that a forged isnad containing his name was surreptitiously introduced so as to give it authority. Not only this hadith’ contradicts the Islamic injunction that a woman may validly enter into a marriage at her own discretion as borne out by both the Our’^–an and Sunnah (as we shall shortly see) but it is also of a dubious character. Indeed, this hadith may be classed as munkar, a narration which in itself may not be authentic, and also contradicts other authentic narrations. Other ahadith or versions of the hadith mention mawla and mawali in place of wali ^{5  .}

The term mawla (pl. mawah) has a wide range of meaning and may denote slave, slave owner, freed slave or a former master of a slave who has emancipated the latter, but in the context of the relevant ahadith, it probably means slave owner or former master of a slave. This is possibly the reason why Abu Hanifah believed that the hadith pertains to the marriage of a slave girl ⁶ . It is accepted in Islam that the consent of the master is required for the marriage of a slave girl and finds sanction in the Qur’an (Surah al-Nisa, verse 25) where it is stated that “believing girls from among those whom your right hands possess” ⁷ should be wedded with the leave of their masters, clearly distinguishing them from free, believing women in whose case no such obstacles are laid, as will be seen later.

Even if we were to suppose the isnad of this hadith to be sound, there is no reason why we shouldn’t regard the ahadith or versions occurring with mawla or mawali as the correct one, which if interpreted as master of a slave, would in no way contradict the Qur’an or other ahadith, but rather complement them.

In fact, the term mawla in the plural form mawali is frequently used in the sense of ‘master of a slave’ in ahadith. Consider the hadith narrated by Abu Musa al­Ash’ari, where the Prophet (peace be upon him) is reported to have said that any slave who observes God’s right and his masters (mawali) right will get a double reward.⁸ However, it is also possible that the term refers to the former master of a manumitted slave who was responsible for the latter’s liberation. Consider the hadith:

“Whoever befriend (takes as patrons) other than his manumitters (mawali) without their permission, incurs the curse of God, the angels and all the people” ^9.

Thus it can be seen that the term mawla is also applied to the former master in his relation to his freed slave. Further, it is probable that the earlier mentioned ahadith with mawla and mawali are not merely different versions, but altogether separate traditions narrated by the Prophet (peace be upon him) at different times, in which case the occurrence of both the singular and plural forms would indicate that these ahadith relate to the master/ mistress or masters/mistresses of a slave-girl or of a manumitted slave girl to whose wala’ they were entitled to. Consider also the following hadith where the Prophet (peace be upon him) is reported to have told `Ayishah (R.A.) who wished to buy a slave girl in order to manumit her and whose masters stipulated that her wala’ would be for them: “What they stipulate should not stop you, for the wala’ is for the liberator” <sup>10</sup>. It could not have meant the woman’s agnatic guardian, for then the plural form mawali would indicate that she also had to obtain the consent of all her agnatic relatives, a condition not recognised in any of the schools. However, such a plural form pertaining to slave girls or freed slave girls is perfectly logical from an Islamic viewpoint, for as evident in the hadith concerning lady Ayishah (R.A.) cited earlier, joint-masters of slave girls were not unknown in those days. Indeed it may be that Zuhri rejected the version with wali due to the simple fact that he did not transmit it, but another version with mawla or mawali. Thus even though the transmitters of the relevant hadith may not have lied intentionally, it is possible that a shift to wali from an original mawla or mawali may have occurred some place in the chain of transmission due to confusion between the two on the part of one of the transmitters. This is all the more probable as the terms mawla and mawali are connected to the same root as wali (which is from the Arabic root wl ‘to be near’, ‘to be close to’, `to be connected with someone or something’), the difference being that the first two terms connote the relationship between master and slave or manumitter and freed slave. Such a hadith, where there is a discrepancy or interpolation (idraj) is known as mudraj. Such a hadith is also ma`lul (defective) where though it appears to be sound in its isnad or text (matn), thorough research reveals a disparaging factor.

Thus the relevant ‘hadith’ is either a fabricated or defective one and cannot be taken into consideration. In order to avoid any misgivings as to the interpretation of this hadith that may arise in the future, it is necessary to state here that all the three ahadith (whether occurring with wali, mawla or mawali) following the pronouncement that such a marriage is invalid, contain a statement to the effect that she (i.e. the girl whose marriage is invalid on account of her being married sans the consent of her wali/mawla/mawali was to receive a dower on account of the consummation of the union and that if a dispute were to arise between the parties concerned, the ruler (judge) is the wali for the party that is without one. The mention of wali in the last passage occurs in all the three ahadith. It is to be noted here that the mention of dower being due to such a woman on account of the consummation of the union may well apply to slave girls who are entitled to a dower as borne out by the Qur’anic verse (4:25) where it is stated:

“Wed them with the leave of their owners, and give them their dowers, according to what is reasonable“.

This may likewise be applicable in the case of freed slave girls. As to the last clause that the ruler is the wali of the party without one in the event of a dispute arising between the parties concerned, it is unclear as to what is exactly meant by this. However, considering the context in which it occurs, it probably refers to a slave girl or manumitted slave girl. What is probably meant by this is that the ruler was entitled to act as the marriage guardian in the case of a slave girl or manumitted slave girl whose ownership was a matter of dispute and who therefore had no rightful master to sanction her marriage. The very fact that the relevant ahadith state that the ruler is the wali for the party without one shows that wali was not a clearly defined term and was not solely applicable to a woman’s agnatic kin as will be seen later in this essay. Besides, considering the relevant ahadith where the mention of wali occurs in the final passage, it is possible in the context for the term mawla or mawali occurring in the first passage to have easily become wali, whereas it is hardly possible for the reverse to have taken place. This fact lends further weight to our contention that a shift from mawla or mawali to wali may have occurred someplace in the isnad. Indeed, the entire import of these ahadith suggests that it is with reference to the marriage of a slave girl or freed slave girl, and not to that of a free woman.

The hadith “There is no marriage without a wali’ narrated by Abu Musa al-Ash’ari ¹¹ is ambiguous. It is not a definite, but an indefinite article that precedes the term wali. If indeed an agnatic wilayat were recognised, there would have been no need to denote it by an indefinite article. On the contrary, the use of the indefinite article suggests that the wilayat envisaged in this hadith may not necessarily be confined to agnates. It appears that in this context, wali is employed in the sense of agent, for had the Prophet (peace be upon him) meant an agnatic wali, in the sense understood by later jurists. he could have said “the wali’ (al-wali) which could then have referred to the woman’s father, brother, or other male relatives as the case may be. This contention is further attested by the fact that the relevant hadith does not specifically refer to the consent of the wali but implies that his is a function, in this case acting as an agent to contract a marriage on behalf of a woman. If taken in the sense of a fixed agnatic wilayat, it would also contradict the Qur’an, which is implicitly in accord with the capacity of women to contract marriage at their own discretion, as well as the Sunnah, as we shall shortly see.

We should bear in mind that in the Qur’an itself, the term wali (pl. awliya) is employed in a number of senses. The term may roughly be translated as close friend’, ‘ally. `protector’. In Surah al-Baqarah (verse 257) God uses it to refer to Himself:

“God is the Protector (Wali) of those who have faith”.

It is also used to indicate closeness between men as in Surah AI-Imran (verse 28) :

Let not the believers take friends or helpers (awliya) unbelievers rather than believers”.

We also get the following verse in Surah, at- Tawba (Verse 71):

The believers, men and women are protectors (awliya) one of another: They enjoin what is just, and forbid what is evil”.

The term however also denotes ‘close relative’ as in the Surah Bani Isra’il (verse 33):

“And if anyone is slain wrongfully, we have given his heir (wali) authority (to demand qisas or to forgive)”.

 The last surah however is a Makkan surah that was revealed sometime between 610-622 A.C. while the rest are Madinan surahs revealed after 622 A.C., so that it is possible that in the early Islamic period (before the Islamic state came to be established in Madinah) the term wali was used with reference to a close relative and that in later times it may have also come to mean all those who were regarded as friends or protectors within the Islamic community. It is significant that the Qur’an says in a late surah that the believing men and women are awliya’ of one another. This designation pertains to the Islamic community as a whole and not to any specific relatives.

The term also finds expression in a number of traditions pertaining to events during the Prophet’s lifetime. The term occurs in the plural (awliya) where Umm Salamah gives as one of her reasons for refusing the Prophet’s (peace be upon him) proposal of marriage, the fact that none of her awliya’ were present ¹² . The use of the plural appears to indicate that she refers thus to members of her clan, who would have constituted her friends and protectors; and not to any specific relative who had the right to sanction her marriage (Note: The other reasons she cites are her jealousy and the fact that she had children, showing clearly that her hesitation due to the absence of any of her awliya’ was her personal idea). Another tradition mentions that Umm Salamah instructed her son `Umar, a young lad at the time, to marry her to the Prophet (peace be upon him) <sup>13</sup> and yet another tradition states that the Prophet (peace be upon him) mentioned his proposal to her nephew, or her son, and her wali and that Umm Salamah instructed her wali to accept the offer should the Prophet (peace be upon him) repeat it <sup>14</sup>. A stronger case is provided by the tradition concerning Maymunah bint al-Harith’s marriage to the Prophet (peace be upon him) where it is said that al-`Abbas was entrusted with arranging his sister-in-law Maymunah’s marriage to the Prophet (peace be upon him) – the verb waliya being used to express the function ¹⁵ and another tradition states that Maymunah (R.A.) entrusted her affairs (ja ‘ala amraha) to al-‘Abbas.¹⁶ According to yet another tradition, although Maymunah (R.A.) entrusted her affairs to the Prophet (Peace be upon him), he asked her hand in marriage from al Al Abbas ¹⁷ . All this would indicate that the arrangement of the marriage was a function al-Abbas acquired by being so appointed by Maymunah (R.A.) as her agent or representative (Note: The wilayat if conceived as an agnatic one, could not have devolved upon al-‘Abbas as he was Maymunah’s brother-in-law i.e. her sister Umm Fadl’s husband).¹⁸ .

(Note: The Prophet (peace be upon him) is said to have married Maymunah (R.A.) in 7 A.H. ¹⁹ (629 A.D.) when the Islamic state had been firmly established and the Prophet’s (peace be upon him) mission was drawing to a close. The Prophet (peace be upon him) passed away in Rabi` al-Awwal 11 A.H. (632 A.D.). Thus Maymunah (R.A.) was the last lady whom the Prophet (peace be upon him) espoused).

This is also supported by the tradition concerning Sawdah bint Zama’ah, who, following the Prophet’s (peace be upon him) proposal of marriage, said “My affair is in your hands”. The Prophet (peace be upon him) subsequently appointed a third party to represent her ²⁰ . We also have the tradition where it is stated that al-Mughirah bin Shu’bah asked for the hand of a lady in marriage and he was the nearest guardian to her, so he asked another man to marry her to him ²¹ (Note: AI-Mughirah was a contemporary of the Prophet (peace be upon him) who embraced Islam in 5 or 6 A.H.) ^{22 .} Abd ar-Rahman bin `Awf asked Umm Hakim, Qariz’s daughter Do you entrust the question of your marriage to me?”. She said “yes”. He said to her “I have married you”.²³ Also interesting is the hadith narrated by Sahl bin Sa’d where it is said that a woman presented herself to the Prophet (peace be upon him) (for marriage). A man said: “O Allah’s Messenger (peace be upon him)! Marry her to me”, and the Prophet (peace be upon him) married her to him ^24.

Also illustrative is the story of the Prophet’s marriage to Umm Habibah, a Muslim widow who had migrated to Abyssinia. Although her father Abu Sufyan lived in Mecca, he did not as much as consult him when he sent a companion named Amr Ibn Umayyah to the Negus, the Christian ruler of Abyssinia with a message to serve as his agent to contract the marriage on his behalf if the lady was agreeable. One day Abrahah, the maid-servant of the Negus came to Umm Habibah and said: “The Negus sends his greetings and says to you that Muhammad, the Messenger of God, wants you to marry him and that he has sent a letter in which he has appointed him as his agent to contract the marriage between you and him. If you agree, you are to appoint an agent to act on your behalf.” Umm Habibah cried to herself: “God has given you glad tidings”, took off her jewelry  and gifting them to Abrahah said: “I appoint Khalid ibn Said ibn al-Aas to act as agent on my behalf for he is the closest person to me.”   In the presence of some Muslim witnesses, the Negus addressed the gathering: “The Messenger of God, peace be on him, has requested me to conclude the marriage contract between him and Umm Habibah the daughter of Abu Sufyan. I agreed to do what he requested and on his behalf I give her a dower of four hundred gold dinars.” He handed over the amount to Khalid ibn Said who said: I have accepted the proposal of the Prophet (Peace and blessings be upon him) and married Umm Habibah bint Abu Sufyan to him. May God bless this marriage” 25.

All these only go to show that a woman could not give herself in marriage, but that she could appoint a third party as an agent to represent her and so contract a marriage of her choice.

Our contention that a woman may not give herself in marriage, but may appoint an agent to contract a marriage on her behalf is supported by yet another hadith, namely the hadith narrated by Abu Hurayrah where the Prophet (peace be upon him) is reported to have said: “No woman shall give a woman in marriage, nor a woman shall give herself in marriage” ²⁶ .

The first part of the hadith stating that no woman shall give a woman in marriage would imply that a fixed agnatic wilayat was not recognised in Islam. If it were, then there would have been no point in the Prophet’s (peace be upon him) saying that a woman may not give another in marriage. Does not this hadith presuppose the recognition of the institution of an appointed wilayat in the sense of an agency as distinct from a fixed agnatic one? The latter part of the hadith stating that no woman shall give herself in marriage possibly refers to the practice in the Prophet’s (peace be upon him) day when women gave themselves in marriage sans an agent or go-between who represented the woman, such as was the case of Umm Sharik’s marriage to the Prophet (peace be upon him) ²⁷ Khawla bint Hakim is also known to have presented herself in marriage to the Prophet (peace be upon him) ²⁸ . This practice appears to have been made lawful only for the Prophet (peace be upon him) and is specifically mentioned in the Qur’an (Surah al-Ahzab, verse 50) which states that any believing woman who offers herself to the Prophet (peace be upon him) and if the Prophet (peace be upon him) wishes to wed her, has been made lawful for him – a privilege for him only, and not for the rest of the believers. There is also the hadith narrated by Ibn ‘Abbas where it is stated that the fornicatresses are those who marry by themselves without witnesses ²⁹ . It is here evident that what is condemned is women marrying by themselves and not their marrying sans the consent of their guardians. It may now be asked why the wilayat even in the form of an agency should have been enjoined. This is not a difficult question to answer. It would have been deemed necessary to ensure propriety in the marriage contract and also to act as a safeguard for a woman liable to make a hasty move by giving herself to some man without some sort of intervention. Such a marriage, without witnesses, could have also led to much intrigue. The rationale here seems to be that there should be some form or order in contracting a marriage without prejudicing a woman’s free choice.

We shall now cite some Qur’anic verses revealed during the Madinan period in order to show the futility of those arguments in support of an agnatic wilayat from a Qur’anic standpoint. Says the Qur’an in Surah al-Nisa’ (verse 19):

“O ye who believe! Ye are forbidden to inherit women against their will“.

Although the inheriting of women as existed in pre- ­Islamic times where the widows of deceased men passed on to the latter’s relatives ³⁰ with or without their consent is illegal in Islam, this verse is relevant to our discussion here as it shows that the right to dispose of their persons has been given to the women themselves and not their guardians. If their guardians had any right over them, the right to decide would have been given to them, which is however not at all the case.

The Qur’an says of divorced women  in Surah al-Baqarah (verse 230):

“If he has divorced her, then she is not lawful to him until she marries another man”

The Qur’an further says in Surah al-Baqarah (verse 232):”When ye divorce women, and they fulfill the term of their (iddat), do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms” ³¹.

In the above verse, the Qur’an expressly forbids divorcees being prevented from remarrying their former husbands if they so chose.

It also says of widowed women in Surah al-Baqarah (verse 234):

“If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days: when they have fulfilled their term, there is no blame on you if they dispose of themselves in a just and reasonable manner, and God is well acquainted with what ye do“.

Here we are told that widows could dispose of themselves in a just and reasonable manner, implying that they could enter into a marriage contract at their own discretion. In the following verse (235) we are told:

“There is no blame on you if ye make an offer of betrothal or hold it in your hearts. God knows that ye cherish them in your hearts: But do not make a secret contract with them except in terms honourable, nor resolve on the tie of marriage till the term prescribed is fulfilled“.

Do not the above Qur’anic verses imply that the decision to wed is a matter for the men and women concerned and that none else has the right to interfere in such affairs? We here find that the act of marrying as in 2:30 which uses the verb tankiha in the feminine singular mode is specific to the woman and not her wali and is not even conjoined with that of her wali.

It may, however, be argued by some, that the above verses relate only to the marriages of thayyibs, i.e. divorced or widowed women, and not virgins. Be it as it may, the Quran, after specifying the forbidden degrees of marriage, whether due to consanguinity, fosterage or marital status, states in Surah al-Nisa’ (verse 24):

“Thus hath God ordained (prohibitions) against you: Except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property, desiring chastity, not lust”.

The following passage (verse 25) states:

“If any of you have not the means wherewith to wed free believing women, they may wed believing girls from among those whom your right hands possess: And God hath full knowledge about your faith. Ye are one from another: wed them with the leave of their owners, and give them their dowers, according to what is reasonable“.

As may be inferred from the above two verses, the Qur’an lays down the rule that slave girls should be wedded with the consent of their masters, clearly distinguishing them from free, believing women in whose case no such obstacles are laid. This in itself shows that there was a difference in the capacities of free women, whether previously married or virgins, and slave women to contract marriage, in that the latter had to be wedded with the consent of their masters. The absence of any such rule pertaining to the consent of the father or any other male guardians in the case of free women –whether previously married or virgin- only goes on to prove that such consent is not necessary. Further, it is not only female slaves who could not contract a marriage sans the consent of their masters. The rule is also applicable to male slaves as is evident in the following hadith: “Whoso of slaves gets married without permission of his master is a fornicator” 32 which is to say that such marriage is invalid. This shows that the consent of masters in the case of slaves did not have any sex bias. It was merely on account of their enslaved state. So just as the consent of their masters or mistresses was necessary for the marriage of slaves, whether male or female, it appears from the Qur’an that free persons, whether male or female, are free to contract marriage sans any third party sanction.

The Qur’anic verse (Surah al-Baqarah, verse 221):

” Do not marry idolatresses, until they believe: A slave woman who believes is better than a (free) idolatress, even though she allures you. Nor marry (believing women) to idolaters until they believe”

which has been cited as presupposing the recognition of an agnatic wilayat in Islam, is probably addressed to the Muslim community as a whole, as on so many other occasions, and not specifically to their agnatic guardians. This verse should be understood in a context where other verses clearly establish the permissibility of women to marry at their own discretion.

Besides, there also exists evidence in the Sunnah to support our contention, namely the hadith ³³ where Ibn Buraydah is reported to have said on his father’s authority that a young woman came to the Prophet (peace be upon him) and complained that her father had married his brother’s son in order to elevate his status through her. The Prophet (peace be upon him) is then said to have given her the option of accepting or rejecting the marriage upon which she said: “I declare lawful what my father did, but (by my action), I simply wanted  women to know that no authority is invested in their fathers”. This narration is very relevant to our discussion. Firstly, it shows that the legality of a marriage is dependent on the approval of the female party. Secondly, it shows that fathers have no authority over their daughters’ affairs such as enforcing, or the right to sanction their Marriages. The fact that the Prophet (peace be upon him) remained silent and did not reproach the girl for her bold words suggests that he tacitly approved of her statement.

Another hadith or perhaps a version of it has it that Khansa bint Khidam said:

” My father married me to his nephew and I did not like this match. So I complained to the Messenger of Allah. He said to me “Accept what your father has arranged”. I said” I do not wish to accept what my father has arranged”. He said: “Then this marriage is invalid, go and marry whomsoever you wish”. I said: I have accepted what my father has arranged, but I wanted women to know that fathers have no right in their daughters’ matters” ³⁴.

Yet another hadith has Umm Salama saying: “Subai’a al-Aslamiyya had delivered after her husband’s death by half a month. Two men asked to marry her. One was young and the other was old. She preferred the young man. The old man said: “You are not free yet (to marry). Her family was away, and he hoped that when her family would come, they may prefer him over the other man. She went to the Messenger of Allah, may Allah bless him and grant him Peace, and he said: “You are free to marry, so marry whomever you wish” 35.

We also have some evidence supporting this view from the early Islamic period. For instance it is narrated that Hazrat Ali (R.A) strongly discouraged marriage without the approval of a woman’s wali, but considered such a marriage valid nevertheless ³⁶.

Thus in the light of the evidence in both the Qur’an and Sunnah, it is evident that woman has been conceded the right to enter into a marriage contract at her own discretion, which however has to be accomplished by a guardian or agent acting on her behalf. Thus we may conc!ude that the Hanafi position as to the nature of the wilayat is fully in accordance with the Shari`ah.

 However three more aspects of the Hanafi law relating to the wilayat or freedom to contract ^.marriage, which contravene Islamic teachings are thought here necessary to be dealt with.

1)  The Hanafi position that a girl given in marriage as a minor has the option of repudiating such marriage upon attaining puberty (khiyar al­bulugh) is well and good. However, the early jurists of that madhhab had attached a condition, namely that if she were given in rlarriage by her father or paternal grandfather she shall have no such option. This ruling finds no support from either the Qur’an or the Sunnah and seems to have taken a precedent from the pre-Islamic Arab society. Hadith bears testimony ‘o the fact that when the Prophet (peace be upon him) married Umama, the minor daughter of Hamza to the son of Abu Salama, he stated that they had the option of repudiating the marriage upon attaining puberty. This was a general statement. As Maudoodi, a well known authority on Islamic law notes, the Prophet (peace be upon him) never stated that the girl had the option because he was her cousin and not her father ³⁷. This goes on to prove that when the Prophet (peace be upon him) departed from the necessity of obtaining consent from a virgin due to the fact that she was a minor, and therefore perhaps incapable of discretion in the matter, he attached a condition, namely, that the option of repudiation would become effective once she attained majority. This clearly establishes the right of the minor spouse to exercise option on attaining puberty, regardless of who the wali was. This provision has in fact found legal recognition in the Dissolution of Muslim Marriages Act (1939) which recognises the right of the girl to exercise the option of repudiation even in case she had been given in marriage by her father or paternal grandfather. It should however be noted that jurists are of the view that the option of annuling the marriage exists so long as it is exercised immediately. In the event of a girl not exercising her option upon attaining puberty, the marriage will be deemed to be binding as she may be taken to have acquiesced in it. However, ignorance regarding the right to annul the marriage, or even that of immediacy is a sufficient excuse.

2) Under the traditional Hanafi law, none has the right to object to a woman’s choice, provided she chooses one her equal and does not stipulate less than the proper dower (mahr al mithl) for the marriage. If she marries one who is not her equal, the person entitled to act as wali during her period of minority (i.e. her natural guardian) has the right to object and demand the annulment of the contract by the qadi. If she marries her equal for less than the proper dower he has the right to demand annulment if the husband does not agree to a proper dower. We will first deal with the doctrine of equality in marriage (al-kafa’ah). AI-kafa’ah means that the man has to be the equal of the woman in certain respects. Kafa’ah is required of men only, since it is not disapprovable for a man to marry a woman lower in status. The Hanafi, Shafi’i and Hanbali schools agree in requiring kafa’ah in religion (Islam), freedom (the state of not being a slave), profession and lineage. The Hanafi and Hanbali schools also require kafa’ah in wealth, whereas the Shafi’i school does not. The Maliki school, on the other hand, does not require kafa’ah save in religion. It is, however, our contention that kafa’ah can in no way be made a legal requisite, save in religion, which is mandatory. The danger of kafa’ah in other respects is that it could be easily manipulated by a woman’s agnatic wali so as to deny her the choice of a partner. Says the Qur’an in the Surah al-Nur (verse 32):

“Marry those among you who are single (i.e. a man who has no wife and a woman who has no husband) or the virtuous ones (salihun) among your slaves, male or female“.

This verse may be taken to have sounded the death-knell of status in marriage. In fact, a number of Hanafite jurists such as Sufyan Al l­Thawri, al-Hasan al-Basri and al-Kharki have disregarded the notion of kafa’ah as a condition in marriage. As to the provision pertaining to mahr al-mithl, it is our view that the amount of dower given should not be a ground for dissolution of a marriage already solemnised. How much dower a woman should be given may vary according to her social status etc. so that there is a very real danger that such a requirement may easily be manipulated by her agnatic wali who may not be keen on her choice of a marriage partner, especially if he be a destitute person.

3)  The Hanafite ruling that a marriage contracted under compulsion being valid is questionable. Such a ruling has no basis in Islam at all since consent implies free consent and not that obtained by force. Indeed, could consent obtained by compulsion be called consent at all? The Prophet (peace be upon him) said: “A grown-up girl shall be asked permission about herself … if she declines, there shall be no compulsion on her”. What more is necessary to debunk this ruling. Such marriages are simply void from an Islamic standpoint.

At the same time, however, we must stress that this freedom of choosing a marriage partner conceded by Islam is one that ought not to be abused. It has to be exercised with immense responsibility. Parents usually desire what is best for their children and are better qualified to judge the character of prospective partners for their daughters, especially if they are young and not too immersed in the ways of the world. Thus this right, we believe, should be exercised only in case a woman’s father or next of kin unreasonably withholds his consent when a suitable match is found. In fact, there are those Hanafi scholars who even go to the extent of pronouncing that such a marriage contracted sans the consent of a woman’s father though legal is not proper may even be considered sinful if contracted without valid reason

As seen earlier, Hadhrat Ali (R.A.) despite recognizing such marriages as valid strongly discouraged women marrying without the permission of their awliya and in more recent times we had the renowned Qur’anic scholar Abu Zahra conceding that although Qur’anic citations validate the conclusion of a marriage contract by a woman without her wali, it was preferable if the Wali contracted for her.

At the same time, however, a system which denies women such a basic human right and civil liberty as freedom in choosing one’s spouse is a vestige of a barbaric age and cannot be permitted to exist in a civilised Muslim society. Laws supportive of non-consensual marriage are still known to obtain in certain parts of the Muslim world, such as in certain states of Malaysia and in Singapore. In certain other states, although consent is essential, the agnatic wali’s right to sanction the marriage has not been dispensed with, such as for example in Saudi Arabia, Kuwait and Algeria. It is, however, fortunate that the great majority of Muslim states have chosen to follow the Hanafi ruling on the matter. This includes Iraq, Syria, Egypt, Tunisia, Palestine, Pakistan and Bangladesh. India too follows the Hanafi law while in Sri Lanka the Hanafi madhhab has been recognised alongside the dominant Shafi’i madhhab. Tunisia, traditionally a Malikite country (whose rules concerning the incapacity of women to contract marriage is similar to the Shafi) adopted the Hanafi rule concerning the capacity of women to enter into marriage contracts as far back as 1957 and more recently we saw the introduction of the New Moroccan Family Law of 2004 spearheaded by King Muhammad VI which also recognized the Hanafi ruling and conceded the women of the kingdom full legal capacity to contract their own marriages, thereby doing away with the earlier Maliki ruling that prevented them from doing so.

In Pakistan, a country where the Hanafi code has traditionally prevailed, there have been some unfortunate cases where attempts have been made to deny women a free hand in choosing their partners. Take the recent case (1996) where the marriage certificates of Ayesha Ijaz and Shabina Zafar were voided on the grounds that they married sans their fathers’ consent. The judgement was fortunately overturned in favour of the women concerned. However, the fact remains that a number of abuses can take place if freedom of marital choice is denied to women. For instance, in Sindh and the Punjab, wealthy landlords have been known to ‘marry’ their daughters to the Qur’an in order to avoid the division of their properties. In certain Gulf states, fathers of marriageable girls are known to demand exorbitant dowers from suitors, prompting the latter to marry foreign women.

It is, therefore, imperative that Muslim legal systems the world over adopt the Hanafite ruling with regard to consent and the legal capacity of women to contract marriage at their own discretion, which as we have shown above is in accordance with Islamic law. The implementation of such a law could be greatly facilitated if provision is made for the registration of the marriage including the signature of the bride as an expression of her consent. Of course, a marriage contracted sans registration cannot be deemed invalid. However, in cases of disputes regarding the matter of consent, unless there is evidence to the contrary, the female party’s position that she did not consent to the marriage ought to be given legal recognition so as to invalidate such marriage as she would be the party most affected in such an event ³⁸.

 Notes and References:

1.Ibn Majah, Kitabun Nikah, Vol. 1, Darul Rayyan Li’tturas, Beirut.

2.This hadith is cited by a number of authorities including  Tirmidhi, Abu Dawud and Nisai.

3. Ibn Hanbal, Musnad, Cairo,1313 (H).

4. Musnad. It is stated by Imam Zaylai in the Nasabur Raya that Ibn Juraij said regarding this “I met Zuhri and asked him about this hadith and he did not know this. Then I said to him: “Sulaiman narrates this to us from you”. He spoke well of Sulaiman and he said: “I fear he had an illusion about me”. We also know that Zuhri himself considered such a marriage as valid. Ma ‘mar has narrated: “I asked Zuhri about a woman marrying without a guardian and he said: “If they are suitable it is permitted” (Musannaf, Ibn Abi Shayba, Al- Sha ‘bi, Ibn Sirin, Qatadah). We also know that Hazrat Ayisha (R.A.) to whom the initial narration of the tradition: “If any woman marries without the consent of her guardian, then her marriage is void, her marriage is void, her marriage is void”  is attributed (Tirmidhi) herself does not seem to have adhered to this ruling as she solemnized her niece Hafsa’s marriage to Munzar Ibn Zubayr when her father Abdur-Rahman was away in Syria and without his approval (Sharh Ma ‘ani Al-Athar. Al Tahawi). We also know that this narration unlike the earlier one regarding marriage without a wali being invalid (which as we have shown above is defective) is Sahih or rigourously authentic as established by Ibn Hajar Asqalani in his Al-Diraya. It is hardly possible that Hazrat Ayisha (R.A.) would have acted contrary to the Sunnah. Thus we will see that both the original narrator Hazrat Ayisha (R.A.) and another important narrator in the chain of narration (isnad) Al-Zuhri, both acted contrary to what was attributed to them, further establishing our contention that the ‘hadith’ concerned is not authentic or at any rate is defective and cannot be taken into consideration.

5. Musnad.
   

6. Karim, Fazlul, Trans. and commentary of Mishkatul Masabih, second edition, Dacca, 1963
7. As noted in footnote 540 of the translation And commentary of the Qur’an by Abdullah Yusuf Ali (Lahore, 1975), this refers to captives taken in holy war (Jihad). “Your right hand” does not mean necessarily that she has been assigned to you, or is your property. All captures in war belong to the community, they are “yours” in that sense”.
8. Khan, Dr. Muhammad Muhsin, Sahih AI-Bukhari, Arabic- ­English, Lahore, 1979.

9. Ibid.

10. Ibid.
    

11. In Abu Dawud, Tirmidhi, Bayhaqi.

12.Ibn Sa’d, Kitabut-Tabaqat al-Kabir, Ed. E. Sachau, 9 vols., Leiden (1904-1940).

13. ibid

14.ibid

15. ibid
16. ibid
17. ibid

18.ibid

19. ibid
20. ibid
21. Bukhari
22. Ibn Hajar, AI-Isabah, Calcutta, 1856-1893.
23. Bukhari
24. ibid
25. Tabaqat Ibn Sa’d
26. Ibn Majah.
27. Tabaqat Ibn Sa’d.
28. Bukhari.
29. Tirmidhi.
30. Alluded to by Ibn ‘Abbas in Bukhari.
31. Ma’quil bin Yasir has narrated that this verse was revealed after he refused to give his sister in marriage to her former husband (Bukhari)

32. Transmitted by Tirmidhi, Abu Dawud, Darimi.

33. Sunan Ibn Majah.

34. Fath Al Bari, Ibn Majah

35. Muwatta, Malik

36. Kanz Al-Ummal
37.   Maudoodi, A., The Laws of Marriage and Divorce in Islam. Trans. Prof. Fazl Ahmed, Delhi, 1989.

38.This is supported by the hadith narrated by Khansa bint Khidam who states that her father gave her in marriage and she disliked the marriage. So she went to the Prophet (peace be upon him) and he declared the marriage invalid (Bukhari).