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.
Terms on this page
Related
- Guardianship in marriage Who counts as a 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 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 Kafa'ah is whether a husband matches his wife's family in six respects, and what her guardians may do if he does not.