Praise be to
This advice is addressed to parents:
duty of parents is to hasten to arrange the marriages of the women who
are under their guardianship, if someone who is compatible proposes
marriage and the woman agrees to that. Whoever does not do that is going
against the command of the Prophet
(peace and blessings of Allaah be upon him). It was narrated from Abu
Hurayrah that the Messenger of Allaah
(peace and blessings of Allaah be upon him) said: “If there comes a
proposal of marriage from one with whose religious commitment and character
you are pleased, then marry [your female relative under your guardianship]
to him, for if you do not do that, there will be fitnah (temptation,
tribulation) on earth and much corruption.” (Narrated by al-Tirmidhi,
al-Nikaah, 1004; classed as hasan by al-Albaani in Saheeh
Sunan al-Tirmidhi, no. 865).
is not permissible to treat them with harshness [cf. al-Nisaa’ 4:19
– interpretation of the meaning] for any reason that has not been prescribed
by Allaah and His Messenger. “Harsh treatment”, as defined by Ibn Qudaamah,
means, “preventing a woman from getting married to someone who is compatible,
if she asks for that and if each of them wants to marry the other.”
(See al-Mughni, part 7, p. 24). Parents and guardians should
hasten to marry the women under their care because that will protect
them from falling into that which Allaah has forbidden, and so that
the guardian himself will not fall into that which Allaah has forbidden
of the sin of treating them harshly. The basic principle is that harsh
treatment on the part of the guardian by not letting her marry someone
compatible is haraam, because it is oppression and harming the woman
by depriving her of her right to marry someone she wants. That is because
Allaah forbade that when He said, addressing guardians:
do not prevent them from marrying their (former) husbands…” [al-Baqarah
2:232 – interpretation of the meaning].
The ruling on this matter may be one of two:
first is that if the closest relative or guardian of the woman was treating
her harshly by preventing her from getting married, then it is OK for
a more distant relative to act as her guardian in marriage, even
if the closer relative is present, because in this case he has no right
to be her guardian.
Al-Mirdaawi said: “The phrase ‘if the
closer relative is preventing her from getting married then the more
distant relative should act as her guardian in marriage’ is the correct
view in the madhhab; most of our companions share this view… Shaykh
Taqiy al-Deen (may Allaah have mercy on him) said: one of the forms
of ‘harsh treatment’ is when no one is proposing marriage to her, because
of the harshness of her guardian.”
part 5, p. 74)
Shaykh al-Islam Ibn Taymiyah said: If
she likes a man and he is compatible with her, then it is obligatory
for her brother or her (paternal) uncle to act as her guardian in her
marriage to him. If they treat her harshly and prevents her from marrying,
then a more-distantly related guardian may marry her to him.”
al-Kubra, part 3, p. 83)
Ibn Qudaamah said: “If her more-closely related guardian
treats her harshly (by not letting her get married), then the guardianship
passes to one who is more distantly related. This was stated by Ahmad…”
by Ibn Qudaamah, part 7, p. 24)
Shaykh Ibn ‘Uthaymeen said: If a father prevents his
daughter from marrying someone who is compatible, then guardianship
passes to a more distant relative, the closest then the closest.”
Islamiyyah, part 3, p. 149)
second is when a more distant relative has arranged the marriage when
the closer relative is present and was not treating her harshly (by
preventing her from getting married).
said: “If a more distant relative arranged the marriage for no reason,
or a non-relative arranged the marriage, then this is not valid.” (al-Insaaf,
part 8, p. 82).
said: “If a more distant relative arranged the marriage with no reason
why a closer relative could not have arranged it, then the marriage
is not valid… because the more distant relative has no right of guardianship
if a closer relative is present.”
al-Qinaa’, part 5, p. 56)
This issue may be examined further. If
the closer relative approves of this marriage, what is the ruling? And
if the closer relative approves of this marriage, does his approval
make the marriage valid or not?
scholars said: If someone arranges the marriage when there is someone
else who is more entitled to guardianship and he is present, and is
not treating her harshly (by preventing her from getting married), then
the marriage is invalid. This issue includes three rulings, the first
of which is that if the more distantly related guardian arranges the
marriage, when the more closely related guardian is present, and she
accepts the proposal of marriage without the permission of the closer
relative, then it is not valid.
was the view of al-Shaafa’i.
said: It is valid, because this is a guardian, so it is permissible
for him to arrange the marriage with her permission, as is the case
with a closer relative.
second ruling is that this marriage is null and void; it was not done
with permission or with proper permission, and it cannot be made valid
with the approval of the closer relative. Marriage in all such cases
is invalid, according to the more sound of the two reports. This was
stated by Ahmad in several places, and this is the view of al-Shaafa’i,
Abu ‘Ubayd and Abu Thawr.
report was narrated from Ahmad, in which he said that it depended on
approval, if approval was given it was permissible, and if approval
were not given, it was invalid.
to the terminology of the fuqaha’, the fudooli means one who
interferes in the rights of another without any permission from sharee’ah,
because his interfering is not based on any rights of ownership, trusteeship
al-Fiqhiyyah, part 32, p. 171)
fuqaha’ differed concerning the ruling on a marriage arranged by a fudooli
without any rights of guardianship or proxy:
Hanbalis and al-Shaafa’i in al-Jadeed said that the marriage
arranged by a fudooli is invalid and the approval of the guardian has
no effect (i.e., the marriage contract must be repeated).
The second view is that of Ahmad, according
to one report narrated from him, and of Abu Yoosuf, which is that the
marriage arranged by a fudooli is valid, but it depends on the approval
of the guardian. If he gives approval then it is OK, but if he disapproves,
it is not valid.
al-Fiqhiyyah, part 32, p. 175)
conclusion: some of the scholars have said that the marriage contract
is valid if the guardian approves – as you have seen – and if you want
to have more peace of mind and avoid an area concerning which there
are differences of opinion among the scholars, then do the marriage
contract again. All that is needed is the proposal from your guardian
– your father – and acceptance from the husband, and the witness of
two Muslim men, and repentance for what has happened.
ask Allaah to give you strength.