Guardianship in marriage

Who becomes the guardian, in order

1. 1The closest men in the family on the father's side: sons first, then the father and grandfather, then brothers, then uncles.
2. 2If none of them are available: the mother, then the grandmother.
3. 3If still none: the daughter, then other female relatives, in a set order.
4. 4If nobody in the family is available at all: the Islamic judge.

Preferred guardianship: for a sane, mature, free woman

1. 1A virgin (one who has never had lawful or unlawful intercourse, even if her hymen is not intact for another reason) or a previously-married woman who has had intercourse (thayyibah) has full authority over her own marriage.
2. 2She may marry or not marry, and may marry whomever she wishes, whether or not her guardian is informed or pleased; the marriage is valid regardless, even if the guardian objecting is her own son or father.
3. 3No guardian may compel such a woman to marry. But if she marries someone outside her family's usual match, or for less than the customary dowry, her guardian may object and have the marriage annulled through a judge.
4. 4If she marries within her family's usual match and for a customary dowry, the guardian has no right to object or annul it, though it is still recommended, to avoid dispute, that the guardian be present.

A nearer rank's right to arrange the marriage always takes priority over a further one, though a further guardian may proceed if the nearer one raises no objection. If a woman has no guardian at all, her marriage remains valid regardless of whether her husband is a suitable match for her family or not.

What a guardian may and may not do

1. 1A guardian (who must not be known for corrupt or negligent behaviour) may compel the marriage of a minor. A father or grandfather may do so even where the terms are plainly disadvantageous (a low dowry for the girl, a high one for the boy, or a match with someone of unequal social standing) and it remains valid; once grown, the child cannot annul it on that basis.
2. 2If the father or grandfather is himself openly corrupt, or arranges the marriage while drunk, to someone clearly disreputable (unable to afford the dowry and maintenance, or in a demeaning trade), the marriage is not valid.
3. 3If anyone other than the father or grandfather marries off a minor to someone of unequal standing, or on terms of plain disadvantage, that marriage is not valid, but the child may annul it on reaching maturity, whether the disadvantaged party was the boy or the girl.
4. 4No guardian, of any kind, may compel the marriage of a mature boy or girl. It is nonetheless preferable for a mature person to leave the matter to their guardian, which then functions as a form of representation rather than guardianship.
5. 5If a guardian marries off a mature girl without informing her or seeking her consent, the marriage is conditional on her later approval: valid if she agrees, void if she does not. The same applies to a mature boy.
6. 6An insane or otherwise mentally incapacitated adult, and a mature slave or servant, may still be married off by their guardian without their own consent.
7. 7Where a mature girl is married by her guardian to someone unequal, without her consent, her close relatives (even non-mahram ones, such as a brother or uncle) may have the marriage annulled through a judge, provided she has not become pregnant.
8. 8If a mature woman marries on her own for less than her worth without telling her guardian, the guardian may insist the dowry be completed, or, failing that, have the marriage annulled by a judge.
9. 9Where a woman has several guardians of equal standing, any one's consent suffices for all. Where one guardian is nearer than another, the nearer one's objection overrides the distant one's consent.
10. 10A distant guardian who marries off a woman while the nearer guardian is absent leaves the marriage conditional on the nearer guardian's later approval, unless the nearer guardian is unreachable on a journey of some length (some scholars specify three days), in which case the distant guardian's arrangement stands even once the nearer guardian returns.
11. 11A guardian's refusal to consent does not bind other guardians; a more distant one may still proceed.
12. 12Silence alone does not prove a guardian's consent, but accepting the dowry, arranging wedding gifts, or accepting a gift from the husband does; and silence maintained until a child is born forecloses any further objection.
13. 13If two equally-ranked guardians separately marry the same woman to two different men, whichever marriage happened first is valid and the other void; if it cannot be established which came first, both are void. If the guardians are not equally ranked, the nearer guardian's marriage is the valid one.
14. 14No guardian may block a marriage to a suitable match at a reasonable dowry purely for personal gain; a judge may step in to allow the marriage to proceed.

The consent of a mature woman

1. 1A mature woman's own consent is a condition of her marriage.
2. 2For a virgin, silence, an unmocking laugh, or quiet tears on being told of the marriage count as consent, but only where her father or grandfather arranged it.
3. 3Where a virgin's marriage is arranged instead by a stranger, or by her brother while her father is present, silence is not enough; she must give explicit verbal consent, and she must be told the man's name and the dowry, unless that stranger was sent by her father or grandfather to ask, in which case her silence is again enough.
4. 4A mature woman who has been married before must always give explicit verbal consent, however close the guardian arranging it; silence, laughter or tears are not sufficient for her.
5. 5Once a woman has rejected a proposed marriage outright, any consent she gives afterwards to that same proposal is not valid.
6. 6Where several guardians separately seek her consent to different marriages, her silence answers none of them; if she consents to more than one, all those marriages fail.

Walāyat al-mustaḥabbah: for a sane, mature, free woman

1. 1A bikr (virgin: one who has had no lawful or questionable intercourse, hymen aside, and including a woman divorced before consummation) or a thayyibah (previously married and consummated) possesses full istiqlāl over her own nikah.
2. 2She may marry or abstain, and marry whom she pleases, whether her walī is informed, pleased, displeased, or entirely unaware; the nikah is valid throughout, even where the objecting walī is her own son or father.
3. 3No walī may compel her marriage. Marrying outside kafāʾah, or for less than mahr al-mithl, gives the walī the right of iʿtirāḍ (objection) and to have the nikah annulled through the qāḍī.
4. 4Marrying within kafāʾah at a customary mahr leaves the walī no such right, though his presence is still recommended to avoid disagreement among the fuqahāʾ and to forestall any suspicion of impropriety.

A nearer ṭabaqah's right to arrange the marriage always overrides a further one, though a further walī may proceed where the nearer raises no objection. Where a woman has no walī whatsoever, her nikah is valid regardless of whether it is with a kufw partner or not.

What a walī may and may not do

1. 1A walī (who must not be known for fisq, negligence or impropriety) may compel (ijbār) the marriage of a minor. A father or grandfather may do so even on terms of plain ḍarar (harm), an excessive mahr against the boy, or a deficient one for the girl, or to a non-kufw partner, and the nikah stands; the minor gains no khiyār on reaching bulūgh.
2. 2Where the father or grandfather is openly fāsiq, or contracts while intoxicated, marrying the minor to someone plainly disreputable (unable to bear mahr and nafaqah, or of a demeaning trade), the nikah is invalid.
3. 3Any other walī marrying off a minor to a non-kufw partner, or on terms of plain ḍarar, contracts an invalid nikah, annullable by the minor on reaching bulūgh, whichever party bore the disadvantage.
4. 4No walī, of any degree, may compel the marriage of a bāligh boy or girl; it remains mustaḥabb for a mature person to entrust the matter to their walī, which then operates as wakālah rather than walāyah.
5. 5A walī who marries off a mature girl without her knowledge or consent leaves the nikah mawqūf (suspended) on her later approval (valid on her ijāzah, void on her refusal), and likewise for a mature boy.
6. 6A majnūn or otherwise incapacitated adult, and a bāligh slave or servant, may still be married off by their walī without their own consent.
7. 7Where a mature girl is married by her walī to a non-kufw partner without her consent, her close relatives, even non-maḥram ones such as a brother or uncle, may seek annulment through the qāḍī, provided she has not conceived.
8. 8A mature woman marrying herself off, without informing her walī, for less than mahr al-mithl leaves the walī the right to demand completion of the mahr or, failing that, annulment through the qāḍī.
9. 9Where several walīs are of equal rank, any one's consent binds; where ranks differ, the nearer walī's objection prevails over the farther walī's consent.
10. 10A farther walī marrying off a woman while a nearer walī is present leaves the nikah conditional on the nearer walī's approval, unless the nearer walī is absent on a journey of a defined distance (some scholars specify three days), in which case the farther walī's contract stands even on the nearer walī's return.
11. 11One walī's refusal to consent does not bind a farther walī, who may proceed regardless.
12. 12Mere silence does not establish a walī's consent, though accepting the mahr, arranging the wedding gifts, or accepting a gift from the husband does; silence maintained until a child is born forecloses objection thereafter.
13. 13Where two equally-ranked walīs each separately marry the woman to a different man, whichever contract preceded the other is valid and the other void; where precedence cannot be established, both are void. Where the walīs are unequally ranked, the nearer walī's contract is the valid one.
14. 14No walī may withhold a woman from a kufw marriage at a reasonable mahr for his own advantage; the qāḍī is empowered to see the marriage through regardless.
15. 15The qāḍī has no authority to marry off a minor who already has a walī, nor to marry her to a relative whose testimony in her favour would not be accepted.

The consent (riḍā) of a mature woman

1. 1A bāligh woman's own consent is a condition (sharṭ) of her marriage.
2. 2For a bikr, silence, unmocking laughter, or unvocalised tears on being informed of a proposed marriage stand as consent, but only where her father or grandfather arranged it.
3. 3Where a bikr's marriage is arranged instead by a stranger or by her brother in her father's presence, silence does not suffice; she must state her consent explicitly, and must be told the man's name and the mahr, unless that person was sent by her father or grandfather, in which case her silence again suffices.
4. 4A thayyibah must always give explicit verbal consent, however close her guardian, and however customary silent forms of consent might be, except where a well-established local custom substitutes another form of assent for explicit speech, in which case that custom is followed.
5. 5Once a woman has expressly rejected a proposal, any subsequent apparent consent to that same proposal is not valid.
6. 6Where several walīs separately seek her consent to different proposed marriages, her silence answers none of them; consenting to more than one invalidates all of them.