Q.

Looking into the justification of Maliki and Shafi jurisprudence for conditioning the
consent of brides wali (guardian).
Introduction
Many a times one may come across issues, not explicitly stated in the Quran and Sunnah, on
which all the four major mazaahibs will be having conflicting and contradictory approach. The
case of essentials to a valid marriage contract is also as such. Marriage is a civil contract between
a man and a woman and whether it requires guardians consent or not remains a matter of dispute
between the different mazaahibs. Father is to be the wali of the bride as first preference; the
second preference is paternal grandfather according to both Hanfafi and Shafi schools. Further
people preferred as wali are the males from the agnatic side, depending on the position of
different mazaahibs. Maliki and Shafi Schools do not consider a marriage contract, without the
brides guardians (wali) consent, valid. While the Hanafi School considers such a marriage
contract valid given that it be with someone with an equivalent status i.e kuf. Another School i.e
Dawud al-Zahiri conditioned the consent of guardian in case of a virgin but not in the case of a
deflowered woman. However in the case of a minor bride the guardians consent is essential and
all jurists agree to this but the girl can rightfully repudiate the marriage contract on attaining
puberty. All the jurists agree on the fact that a deflowered woman does not require the guardians
consent, based on the following hadith:
The deflowered woman expresses her own consent.
Another Hadith says:
"The widow shall not be married until she is consulted, and the virgin shall not be married until
her consent is obtained."
According to Mahomedan Law the essentials of a valid marriage contract are offer and
acceptance (ijab o qabul) from both the parties, respectively, in the presence and hearing of two
or one male and two females as witnesses, who must be sane and adult Mahomedans
1
. This law
does not involve the consent of brides guardian.
The basic spirit behind the requirement of a guardian is that women necessitate a guardian for the
protection and security of their rights. It will be further discussed and argued whether a bride
requires the consent of her wali or not and why do Shafi and Maliki Schools support the former
statement. The jurists base their opinions on the texts of Quran and Sunnah. The problem arises
when the jurists disagree regarding the validity of the hadith or in the interpretation of the
Quranic text or hadith/ Sunnah.


1
Dr. M A Mannan, Mahomedan law, PLD Publishers LHR 2010
ARUGUMENTS
TEXTUAL ASPECT
Imam Malik and Imam Shafi have derived their opinion from the hadith stated as follows:
la nikah ila biwali meaning there is no nikah without wali.

Umar, Ali, Ibn Masud, Abu Hurraira and Hazrat Ayesha (RA) were of the same opinion.
Saeed bin Musaib, Hasan, Umar bin Abdul Aziz, Jabir bin Zaid Thawri, Ibn Abi Laila,
Ibn Shabirma, Ibn al-Mubarak, Shafii, Ishaq and Abu Ubaid also hold the same opinion.

Nikah without wali is not valid and a woman can neither do her own nikah nor do
someone elses nikah. A woman cannot make a non-wali her wali and if she does this
then such a nikah will be invalid
2
. Ibn Sireen, Qasim bin Muhammad, Hasan bin
Salih, Abu Salih and Abu Yusuf narrate that nikah without permission of wali is not
correct and if she does the nikah then the validity depends on the permission of the
wali. . . .And our evidence is the hadith where Prophet Muhammad has said la
nikah ila biwali There is no nikah without wali. Imam Ahmad and Yahya have
declared this hadith to be sahih.

Further textual evidence in support of Shafis and Malikis ruling:

Laa Nikaha illa bi waliyyin wa as-sultani waliyyu man la waliyaa lahaa
No marriage except with a guardian and the ruler is the guardian of she who has
no guardian. (Abu Dawud and others- Sahih Hadith)

If any woman marries without the permission of her guardian, then her marriage
is void, then her marriage is void, then her marriage is void. (Abu Dawud and others
Sahih Hadith)
Note: Prophet Muhammad PBUH repeated sentences or words to emphasize their significance.
BIGLOGICAL ASPECT
Secondly it is a known fact and scientifically proven that women are mentally less
capable than men. They are nave and mentally very emotional creatures thus they can
take wrong decisions in the heat of the moment or just out of emotions and later regret.
Therefore a walis approval matters to ensure whether the bride is taking the right or
wrong decision. Another reason for walis approval is that women are abused and fooled
by men. Their exposure and cleverness cannot be matched to that of the men. A guardian

2
Ibn Qudama, Al-Mughni vol.7 pg 5
shall protect the woman since he will have a better exposure in the society. It is not only
in this aspect that Allah has given man an upper hand but also in many other aspects as
well. Allah is the creator of mankind men and women both and indeed he knows his
creation the best.

As Allah has clearly mentioned in the Quran:
Men are the protectors and maintainers of women, because Allah has made one of
them to excel the other [al-Nisa 4:34]

Hadith from Musannaf Abi Sheeba which is as follows:

Qasim bin Muhammad says that Ayesha (raa) did the nikah of the daughter of
Abdur Rahman bin Abi Bakr with Mundhir bin al-Zubair. At that time Abdur
Rahman was not present. When he came, he became angry and said, O slaves of
Allah! Is it done to a person like me that his daughter is married without his
consultation? Ayesha got angry and asked, do you dislike Mundhir?
3

CUSTOMARY ASPECT
Furthermore, the injunctions of Islam are based on family values and it is the most
important social institution. Therefore, since the contract of marriage has also
customarily become a contract between not only the bride and groom but also between
their families, the guardians consent is imperative for the marriage to take place. The
consent and the well wishes of the families concerned are highly significant.
Disapproving this reality would amount to discouraging the infrastructure on which an
Islamic society rests.

Saeed ibn Musayib related that Sayyidina Umar bin Khattab stated: A woman
should not perform Nikah without the permission of her Wali or without the advice of an
understanding individual of her household or the Amir of that area.
4

COUNTER ARGUMENTS
The hadith that has been referred to by the Shafi and Maliki Schools is considered to be a
weak hadith since the chain of narrators is perceived to be broken.

Dr. Maulana Fadhal Ahmed has noted:

As for the hadith of Abu Musa (ra) it is not a worthy piece of evidence because there is a
contradiction in its reporting and connection. Imam Tirmidhi (rh) has himself confirmed

3
Ghulam Rasool Saeedi, in Sharh Muslim vol. 3 pg 828
4
Kanzul Aamal, vol 16, p530
this. Hence, the correct position is that this hadith is mursal, as Imam Tahawi also
confirms, while Ibn Hajr Asqalani (rh) said that it is not correct to deduce from it.
5


Imam Tahawi writes:

The people of the first opinion (la nikah ila biwali) consider as evidence that which has
been narrated from Abu Ishaq through Israel. He narrates from Abu Barda who narrates
from his father that the Prophet Muhammad said, no nikah without (consent of) the
wali.
So the evidence against them is that according to their rules it is not correct to use this
hadith as proof because those people who have stronger memory than Israel, like Sufyan
and Shubah, have narrated it munqatian (broken) from Abu Ishaq.
. . . .If they say Abu Awanah narrated this hadith marfuan like Israel, Abu Awanah
narrates from Ishaq who narrates from Abu Burdah who narrates from Abu Musa that,
the Prophet Muhammad said, no nikah without (consent of) wali.
Then we will say that this hadith has been narrated through Abu Awana like you have
said but we have checked the origin of the hadith and it is narrated from Abu Awana
from Israel and he narrates it from Abu Ishaq and thus the narration of Abu Awana also
returns to Israel.
Mualla bin Mansoor Razi says that Abu Awana narrated to me from Abu Ishaq through
Israel from his sanad similar to this.
Hence this negates that Abu Awana had anything from Abu Ishaq directly.
6


Allama Badruddin al-Ainee, comments on a similar hadith narrated from Abu Huraira:

As for the hadith of Abu Hurairah, al-Mugheerah ibn Musa is in the chain of narrators
about whom Bukhari said, munkar al-hadith and Ibn Hiban said, he narrates from
people of trust that which does not resemble confirmed hadith, so he is not taken as
hujjah anymore.
7


Another problem with the referred hadith is that if it is taken in the lateral meaning then it
shall negate Shafis own ruling on the grooms walis consent not needed. This hadith is
also vague and does not specify whether it is referring to the consent of brides guardian
or grooms or both of their guardians. Moreover the word wali is used many times by
Allah in the Holy Quran and each time in a different meaning e.g close friend, ally and
protector.


5
Commentary on the English translation of Jami Tirmidhi vol.1 pg 403
6
Sharh Maani al-Athar vol.3 pg 17-18
7
Umdatul Qari, vol.20 pg 165 [Publisher: Darul Kutub al-ilmiyyah; 2001]
Mufti Ahmed Yar Khan Naeemi writes:

This hadith is daeef and troubled..
8


Evidence from Sunnah as opposed to the ruling of Shafi and Maliki:

A woman presented herself to the Prophet with the intention of being married to him . On
this the Prophet remained silent. A companion of the Prophet who was present stated: O
Prophet of Allah, if you do not desire to marry her, I would like to do so. On the request
of this companion and the acceptance of the woman, the Prophet performed their Nikah.
The guardian of the woman was not present at this occasion.
9


Sayyidah Aisha (RA) relates: A mature woman who had not been married previously
complained with regards to her father to the Prophet SAW, who without her consent, got
her married. She stated: O
Prophet of Allah SAW, whatever my father has done (in relation to my Nikah), I am not
happy with. The Prophet SAW called her father into his company. The woman further
stated: O Prophet of Allah SAW, whatever my father has done is in the past now, what I
really wish to ask is that in this matter of Nikah, doesnt a woman have a right?! On the
questioning of this woman the Prophet SAW stayed silent showing approval of her
dispute giving a tacit approval.
10


Sayyidina Ibn Abaas (RA) relates that the Prophet SAW stated: A mature woman has
more right over her affair in regards to Nikah than her own guardian.
11


Other Example:
Sayyidina Ali (RA) used adviced the people to perform Nikah with the permission of
their guardians. However, if a Nikah had been performed without the guardians
permission, Sayyidina Ali (RA) would not annul the marriage. This further strengthens
the proof to the fact that Nikah without the wali is permissible.
12


Imam Maliks stance explained by Ibn Rushd:
Ibn Rushd commenting on Imam Maliks opinion stated that guardianship for Malik is one of the
most complementary demands and not a condition for validity of marriage. After going through
and citing many textual sources, he upholds his perception of guardianship only being a demand

8
Miratul Manajih vol. 5 pg 48
9
Sahih Bukhari vol 2, p767, Muwatta Imam Malik #9 , Sunan Nasai# 3255
10
Sunan Nasai vol 2, p77#3274/ Sunan Abu Dawood vol 1, p285/ Sunan Ibn Majah p135
11
Sahih Muslim vol 1, p455/ Sunan Nasai p276/ Sunan Abu Dawood p286/ Jami Tirmidhi vol 2, p164
12
Kanzul Aamal, vol 16, p531
for the perfection of the contract and not as a condition. Ibn Rushd is of the view that a woman
has the right to contract her own marriage and the hadith that are referred to by the opposing
schools only refer to guardian so he can communicate on behalf of the bride and not his consent.
Conclusion
After personally having gone through the justifications of Imam Malik and Imam Shafi for their
conditioning the brides walis consent, Im of the view that their justifications are not very strong.
Especially in the light of Hadith and Sunnah, the counter arguments are much more authentic and
strong comparatively. Even in the Pakistani law it is permissible for a woman to marry without a
guardian, although this law was made recently. However, Imam Hanifas position on this matter
seems the strongest and most authentic in light of the revealed texts.
The Prophet (PBUH) asked Mu`aazh, How are you going to judge between the people?
Mu`aazh answered, By the Book of God. The Prophet liked that, then he asked him, And
when you dont find the answer there? Mu`aazh answered, I consult the Hadeeth. The Prophet
liked that, then he asked him, And if you dont find the answer there? Mu`aazh answered,
Then I work hard with an opinion of mine. The Prophet (PBUH) smiled in approval.


BIBLIOGRAPHY
Books
Imran A Nayazee, Outlines of Islamic Jurisprudence, Federal Law House 2010
Dr. Tahir Mansoori, Family Laws in Islam, Shariah Academy IIUI 2009
Dr. M A Mannan, Mahomedan law, PLD Publishers LHR 2010
Article
Mufti Muhammad Yusuf bin Yaqoob Danka, The position of a guardian (Wali) in the Nikah of a
mature female (2009)