A Dictionary of Islam / Being a cyclopedia of the doctrines, rites, ceremonies, and customs, together with the technical and theological terms, of the Muhammadan religion.

by Thomas Patrick Hughes

“Among the Hanafis and the Shiahs, the capacity of a woman, who is adult and sane, to contract herself in marriage is absolute. The Shiah law is most explicit on this point. It expressly declares that, in the marriage of a discreet female (rashîdah) who is adult, no guardian is required. The Hidâya holds the same opinion. A woman (it says) who is adult and of sound mind, may be married by virtue of her own consent, although the contract may not have been made or acceded to by her guardians, and this whether she be a virgin or saibbah. Among the Shafais and the Malikis, although the consent of the adult virgin is an essential to the validity of a contract of marriage entered into on her behalf, as among the Hanafis and the Shiahs, she cannot contract herself in marriage without the intervention of a walî. (Hamilton’s Hidāyah, vol. i. p. 95.)

“Among the Shafais, a woman cannot personally consent to the marriage. The presence of the walî, or guardian, is essentially necessary to give validity to the contract. The walî’s intervention is required by the Shafais and the Malikis to supplement the presumed incapacity of the woman to understand the nature of the contract, to settle the terms and other matters of a similar import, and to guard the girl from being victimised by an unscrupulous adventurer, or from marrying a person morally or socially unfitted for her. It is owing to the importance and multifariousness of the duties with which a walî is charged, that the Sunni law is particular in ascertaining the order in which the right of guardianship is possessed by the different individuals who may be entitled to it. The schools are not in accord with reference to the order. The Hanafis entrust the office first to the agnates in the order of succession; then to the mother, the sister, the relatives on the mother’s side, and lastly to the Kazi. The Shafais adopt the following order: The father, the father’s father, the son (by a previous marriage), the full brother, the consanguineous brother, the nephew, the uncle, the cousin, the tutor, and lastly the Kazi; thus entirely excluding the female relations from the wilayet. The Malikis agree with the Shafais in confiding the office of guardian only to men, but they adopt an order slightly different. They assign the first rank to the sons of the woman (by a former marriage), the second to the father; and then successively to the full brother, nephew, paternal grandfather, paternal uncle, cousin, manumittor, and lastly to the Kazi. Among the Malikis and the Shafais, where the presence of the guardian at a marriage is always necessary, the question has given birth to two different systems. The first of these considers the guardian to derive his powers entirely from the law. It consequently insists not only on his presence at the marriage, but on his actual participation in giving the consent. According to this view, not only is a marriage contracted through a more distant guardian invalid, whilst one more nearly connected is present, but the latter cannot validate a marriage contracted at the time without his consent, by according his consent subsequently. This harsh doctrine, however, does not appear to be forced in any community following the Maliki or Shafai tenets. The second system is diametrically opposed to the first, and seems to have been enunciated by Shaikh Ziâd as the doctrine taught by Malik. According to this system the right of the guardian, though no doubt a creation of the law, is exercised only in virtue of the power or special authorisation granted by the woman; for the woman once emancipated from the patria potestas is mistress of her own actions. She is not only entitled to consult her own interests in matrimony, but can appoint whomsoever she chooses to represent her and protect her legitimate interests. If she think the nearer guardian inimically inclined towards her, she may appoint one more remote to act for her during her marriage. Under this view of the law, the guardian acts as an attorney on behalf of the woman, deriving all his powers from her and acting solely for her benefit. This doctrine has been adopted by Al-Karkhi, Ibn al-Kâsim, and Ibn-i-Salamun, and has been formally enunciated by the Algerian Kazis in several consecutive judgments. When the walî preferentially entitled to act is absent, and his whereabouts unknown, when he is a prisoner or has been reduced to slavery, or is absent more than ten days’ journey from the place where the woman is residing, or is insane or an infant, then the wilayet passes to the person next in order to him. The Hanafis hold that the woman is always entitled to give her consent without the intervention of a guardian. When a guardian is employed and found acting on her behalf, he is presumed to derive his power solely from her, so that he cannot act in any circumstances in contravention of his authority or instructions. When the woman has authorised her guardian to marry her to a particular individual, or has consented to a marriage proposed to her by a specific person, the guardian has no power to marry her to another. Under the Shiah law, a woman who is ‘adult and discreet,’ is herself competent to enter into a contract of marriage. She requires no representative or intermediary, through whom to give her consent. ‘If her guardians,’ says the Sharâya, ‘refuse to marry her to an equal when desired by her to do so, there is no doubt that she is entitled to contract herself, even against their wish.’ The Shiahs agree with the Hanafis in giving to females the power of representing others in matrimonial contracts. In a contract of marriage, full regard is to be paid to the words of a female who is adult and sane, that is, possessed of sound understanding; she is, accordingly, not only qualified to contract herself, but also to act as the agent of another in giving expression either to the declaration or to the consent. The Mafâtih and the Jama-ush-Shattât, also declare ‘that it is not requisite that the parties through whom a contract is entered into should both be males, since with us (the Shiahs) a contract made through (the agency or intermediation of) a female is valid.’ To recapitulate. Under the Maliki and Shafai law, the marriage of an adult girl is not valid unless her consent is obtained to it, but such consent must be given through a legally authorised walî, who would act as her representative. Under the Hanafi and Shiah law, the woman can consent to her own marriage, either with or without a guardian or agent.” (Personal Law of the Muhammadans, p. 233.)

II.—The Legal Disabilities to Marriage.

There are nine prohibitions to marriage, namely:—

1. Consanguinity, which includes mother, grandmother, sister, niece, aunt, &c.

2. Affinity, which includes mother-in-law, step-grandmother, daughter-in-law, step-granddaughter, &c.

3. Fosterage. A man cannot marry his foster mother, nor foster sister, unless the foster brother and sister were nursed by the same mother at intervals widely separated. But a man may marry the mother of his foster sister, or the foster mother of his sister.

4. A man may not marry his wife’s sister during his wife’s lifetime, unless she be divorced.

5. A man married to a free woman cannot marry a slave.

6. It is not lawful for a man to marry the wife or muʿtaddah of another, whether the ʿiddah be on account of repudiation or death. That is, he cannot marry until the expiration of the woman’s ʿiddah, or period of probation.