Marriage of the insane and of minors
Why an insane person or a child cannot contract their own marriage, and the right a minor gets back once grown.
A child, or a person who cannot think clearly, cannot arrange their own marriage. A guardian must do it for them, or agree to it afterwards.
If a child ever does try to arrange their own marriage without a guardian, the marriage is not automatically real; it waits until a guardian says yes or no. If there is truly no guardian at all, a young girl's own arrangement waits until she is a grown-up and can say for herself whether she wants to keep it.
Sometimes a marriage is arranged by someone who is not really a guardian at all, a family friend, for instance, without being asked. This kind of marriage also waits for the two people getting married to agree to it afterwards.
An insane person or a minor has no authority to contract their own marriage. If either does so anyway without a guardian's permission or presence, or if someone else conducts it on their behalf without authority, the marriage is suspended on the guardian's later approval, to keep or to annul. Where there is no guardian and no ruling authority at all, and a minor girl contracts her own marriage, it is not void outright, but remains suspended until she reaches maturity, at which point it becomes valid with her consent.
Khiyar al-bulugh is the right a minor holds over a marriage contracted for them before they were mature.
Khiyar al-bulugh
- A minor boy or girl has the right, on reaching maturity, to keep or annul a marriage that was arranged for them by anyone other than their father or grandfather, even if the marriage has already been consummated, unless the minor had already consented to it themselves before growing up.
- The right becomes available once the person realises they have reached maturity, or, if they were never told about the marriage, once they learn of it.
- It must be exercised immediately on becoming aware; if consent or refusal is not expressed straight away, the right is forfeited.
- Not knowing this ruling is no excuse: even silence caused by ignorance of the rule forfeits the right.
- A widowed or previously-married woman does not lose the right through silence alone, only by explicitly consenting or refusing, or by an act implying consent, such as asking for her dowry, seeking maintenance, or laughing.
- The same right applies equally to men, but a man's right is not lost merely through remaining silent.
To annul a marriage under khiyar al-bulugh, the disapproval must be expressed immediately on reaching maturity, and the annulment must then be sought through a judge.
A wakil (agent) is someone authorised by another to act on their behalf; the person giving that authority is the muwakkil (principal). Appointing an agent for marriage is permissible even without witnesses present at the appointment, and either party to a marriage, or a guardian on their behalf, may appoint one. If a person authorises an agent to marry them to whomever the agent chooses, the marriage the agent then arranges is valid, provided it does not contradict any dowry the principal specified; if it does, it is invalid.
A faduli is someone who conducts a marriage between two people while being neither a party to it, nor their guardian, agent, nor messenger. If a faduli conducts a marriage and then informs the people concerned, it becomes valid if they agree and invalid if they do not. An agent, unlike a faduli, may cancel a marriage they arranged, but only with the principal's prior permission; a faduli has no such authority at all.
A majnūn or a minor has no ahliyyah (capacity) to contract their own nikah. Where either does so without the walī's permission or presence, or a third party conducts it on their behalf without authority, the contract is mawqūf (suspended) on the walī's subsequent ijāzah, to affirm or annul. Absent any walī or ruling authority whatsoever, a minor girl's own contract is not void (bāṭil) but remains mawqūf, taking effect on her consent at bulūgh.
Khiyār al-bulūgh is the option retained by a minor over a marriage contracted on their behalf before bulūgh.
Khiyar al-bulugh
- A minor boy or girl retains the right, on reaching bulūgh, to affirm (ijāzah) or annul (fasḵh) a marriage contracted by any walī other than the father or grandfather, even where duhkūl (consummation) has occurred, unless the minor had already given consent to it before bulūgh.
- The right arises once the minor becomes aware of having reached bulūgh, or, where uninformed of the marriage, once informed of it.
- It must be exercised fawran (immediately) on that awareness; failure to express consent or refusal at once forfeits it (isqāṭ).
- Jahl (ignorance) of this very ruling is no excuse: silence from unawareness of the ruling still forfeits the right, even where the silence is brief.
- A thayyibah (previously-married, consummated) minor's right is not forfeited by silence alone, only by explicit ijāzah or radd, or by a fiʿl dāll (implying act) such as demanding her mahr, seeking nafaqah, or laughing.
- The same khiyār applies to men equally, save that a man's right is not forfeited by silence alone.
Fasḵh under khiyār al-bulūgh requires two conditions: that the disapproval be voiced immediately on reaching bulūgh, and that the annulment be sought through the qāḍī.
A wakīl is one authorised (bi-idhn wa amr) by another to act on their behalf, the grantor being the muwakkil. Appointing a wakīl for nikah is valid even without shuhūd present at the appointment itself, and this right extends to either ʿāqid or to a walī acting on their behalf. Where a principal authorises a wakīl to contract marriage with whomever the wakīl chooses, the resulting nikah is valid provided it does not conflict with any mahr the muwakkil specified; where it does, it is invalid.
A fuḍūlī is one who conducts a nikah between two parties while being neither ʿāqid, walī, wakīl, nor rasūl. Where a fuḍūlī's nikah is subsequently reported to the parties, it is valid upon their ijāzah and invalid upon their refusal. A wakīl, unlike a fuḍūlī, retains authority to rescind a nikah he has arranged, but only with the muwakkil's prior permission; a fuḍūlī has no such authority under any circumstance.
This is the English translation of Nisab Ahle Khidmaat Sharia, exactly as the book has it, for the passages this page was written from. About 1,071 words. Switch back to Guide for the rewritten version.
Order of Guardianship in Marriage Rulings Regarding the Insane and Minors
- An insane or minor boy or girl does not have the authority to conduct their own marriage.
- If an insane or minor boy or girl conducts their marriage without the permission or presence of their guardian, or if another person conducts the marriage on their behalf, then the marriage will remain conditional upon the guardian's approval, whether they choose to maintain or annul it.
- If there is no guardian or ruling authority, and a minor girl conducts her own marriage, the marriage will not be void but will remain conditional, and upon reaching maturity, it will be valid with her consent.
Right of Choice upon Reaching Maturity (Khiyar al-Bulugh):
- The option that a minor has regarding their marriage before reaching maturity is known as Khiyar al-Bulugh.
- Minor boys and girls have the right to choose whether to keep or annul their marriage upon reaching maturity, [even if the couple has reached the stage of complete union] provided that the marriage was conducted by someone other than their father or grandfather [or with the minor's consent before maturity].
- This right is available only when they become aware of their maturity or, if they were not previously informed of the marriage, once they learn about it.
- If they do not express their consent or dissent immediately upon realizing their maturity or learning of the marriage, the option is forfeited.
- Ignorance of this ruling does not serve as an excuse in this matter, meaning if a minor, upon reaching maturity, remains silent due to not knowing the ruling [this same ruling mentioned above, i.e., a minor has the right to continue or annul their previous Nikah upon reaching maturity; if they do not express consent or refusal immediately after reaching maturity, this right is forfeited, etc. even if the silence lasts only a short while] this silence will nullify the right to choose.
- However, the right of a widow non-virgin is not invalidated by silence. It will only be invalidated if she explicitly expresses consent or dissent or takes an action [such as asking for the dowry or seeking maintenance, or laughing] which implies consent.
- The right of choice applies equally to men, but for men, this right does not become invalid just because they remain silent and do not express explicit consent or dissent.
- If a person dislikes the marriage and wants to annul it, two conditions must be met:
- The disapproval must be expressed immediately upon reaching maturity.
- The annulment must be requested through the judge (the Muslim legal authority).
- Children cannot annul a marriage arranged by their father or grandfather, even if the marriage was conducted with clear harm (such as with an unequal partner or at a lower dowry), provided the father or grandfather is not known for moral corruption, carelessness, or vice.
- If an adult's marriage was arranged during their insanity by their guardian, the person can annul the marriage once they regain their sanity. However, a father cannot annul the marriage his son conducted.
Agent (Wakil):
- A person who has the authority, with the permission and instructions of another, to act on their behalf is called an agent (wakil), and the person who gives the authority is called the principal (muwakkil).
- Appointing an agent for marriage is permissible, even if it is not done in the presence of witnesses.
- Just as it is permissible for each party involved in the marriage (the two parties) to appoint an agent, similarly a guardian (wali) can also appoint an agent.
- If a man or woman appoints a person as their agent for marriage and gives them the authority to marry whomever they wish, the marriage carried out by the agent will be valid, provided it does not contradict the dowry that the principal had specified. Otherwise, the marriage will be invalid.
Acting without Authority (Faduli):
- A "Faduli" (unauthorized person) is someone who is neither a party to the marriage, nor a guardian, nor an agent, nor a messenger, but who, on their own, conducts a marriage between two people.
- If an unauthorized person conducts a marriage on behalf of another and then informs the concerned person of the marriage, if the person agrees, the marriage will be valid. If they do not agree, it will be invalid.
- After an agent has conducted a marriage, the agent can cancel the marriage with prior permission from the principal, but an unauthorized person (Faduli) has no such authority.
Note: It is sometimes observed that a mother, in the presence of the girl’s uncle or cousin, conducts the marriage of her daughter on her own authority. However, uncles, cousins, or any direct male relatives of the girl are the guardian (wali ‘asaba) by their own right. A mother does not have the right of guardianship unless no wali ‘asaba is available, even if she is present. Therefore, if the mother marries her daughter off to someone and a wali ‘asaba (even a distant relative) marries the daughter to someone else, then the marriage conducted by the mother will not be valid. Only the marriage of the wali will be valid. Therefore, the mother’s authority in matters of marriage is secondary to that of the wali ‘asaba.
Warning regarding hypothetical guardianship:
- Some people, particularly those who foster children, mistakenly consider themselves the guardian (wali) of the child due to their upbringing, treating them as their own property or slave. This is incorrect. A foster child is not a slave but a free individual who is simply cared for by someone. These individuals do not have the legitimate guardianship of the child. Therefore, they do not have the authority to conduct the child’s marriage while they are still a minor.
- Sometimes, due to a lack of offspring, some people take in a relative’s or another person’s child and raise them, calling the child an adopted or foster child (lutfī or muttabani). At times, such foster parents, while the child is still a minor, marry the child off by their own guardianship. In this case, if the foster parent is already the legitimate guardian of the child by lineage, the marriage will be valid. However, if the foster parent is not the legitimate guardian (wali ‘asaba) but merely has a nurturing relationship with the child, the marriage will not be valid, because the foster parent is considered a hypothetical guardian, and a hypothetical guardian does not have the authority to marry off a minor according to Islamic law.
Terms on this page
Related
- Guardianship in marriage Who counts as a guardian (wali), in what order they stand, and what a guardian can and cannot decide for someone else.
- Spouses' rights, and marriages that do not hold What a marriage contract owes each spouse, and the situations elsewhere in this section where a marriage (nikah) is invalid or left pending.
- Custody of children and maintenance after divorce Who has the right to care for young children after a divorce, and when a husband must keep providing his wife's food, clothing, and housing.
- Suitability (kafa'ah) between husband and wife Suitability (kafa'ah) is whether a husband matches his wife's family in six respects, and what her guardians may do if he does not.