Who is the Guardian of a Muslim Woman with no Muslim Relatives?

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There are 2 views on the marriage of a Muslim woman who has no Muslim guardians. The first view is that it is not permissible and she may act for herself. The second allows a non-Muslim to act as a guardian in her marriage.

Who is the Guardian of a Muslim Woman with no Muslim Relatives?

The Issue

A Muslim man may wish to marry a Muslim woman, but her parent or guardian is non-Muslim. Alternatively he may or may not be the follower of a divine religion. In this case, can she act for herself in her marriage?

Ruling

All scholars agree that the proper thing for a woman who is to be married is that her guardian should act for her in marriage. The question arises when her guardian is a non-Muslim: can he act for her? Scholars have two different views on this point:

The first view is that it is not permissible. The evidence for this view is from the Qur’an,

as God says:

‘Never will God allow the unbelievers a way over the believers.’

(4: 141)

Needless to say, a guardian has authority over a person in his care.

God also says:

‘The believers, men and women, are friends to one another: They enjoin what is right and forbid what is wrong; they attend to their prayers, and pay their zakat, and obey God and His Messenger. It is on these that God will have mercy. Surely, God is Almighty, Wise.’

(9: 71)

If the woman does not have a Muslim guardian, she may appoint someone to act for her in her marriage, or she may act for herself if she is known to be of sound mind. This last point is approved by some prominent scholars such as Abu Hanifah.

The second view allows a non-Muslim guardian to act for a woman in her marriage if she has no Muslim guardian. This is the view of the Permanent Committee for Research and Fatwa in Saudi Arabia. The Committee replied to a question about a Muslim who married a Christian woman without permission from her guardian. It said: ‘The marriage contract is not valid unless it is done in the presence of the woman’s guardian and two witnesses of integrity. A woman may not act for herself in her marriage contract.

The Prophet says:

“No marriage is valid without [the woman’s] guardian and two witnesses of integrity.”

He also says:

“A woman may not act for another woman in her marriage contract, and a woman may not act for herself.”

Therefore, the marriage contract referred to in the question is invalid and must be re-done by the woman’s guardian. A woman who follows a divine religion may be given in marriage by her father, and if he is unavailable or he refuses, then her next of kin. If she has no relatives, or they refuse, then a Muslim judge may act for her. If no such judge is available, then the Director of the Islamic centre in her area. Evidence from the Qur’an and the Sunnah confirm this.’

Fiqh Councils

The fourteenth session of the European Council for Fatwa and Research held in Dublin from 14–18 Muharram 1426 AH, 23–27 February 2005 discussed many topics, including ‘guardianship in marriage.’ Its discussions led to the adoption of the following decision:

‘Scholars have two different views with regard to guardianship in marriage. The first view considers the presence of the woman’s guardian a condition for the validity of the marriage. This view relies on the hadith reported by Abu Musa al-Ash[ari quoting

the Prophet as saying:

“No marriage is valid without a guardian.”

Al-Bukhari uses this hadith as a chapter heading in the section on marriage in his Sahih anthology. It is indeed the view of the majority of scholars of both hadith and Islamic jurisprudence. Some of them go further than that, saying that it is a condition of the contract. The second view suggests that it is not a condition, and a marriage contract without the presence of the woman’s guardian is considered valid, provided that she marries a man of acceptable social status. This is the view of some scholars, particularly the Hanafi school of Fiqh. They cite other evidence in support.

‘These views rely on good evidence. Having discussed the matter thoroughly, the Council decides that both from the religious and the social perspectives the consent of the woman’s guardian should be keenly sought. However, if circumstances make it necessary for the woman to be married without her guardian’s presence, either because he is unwilling or refuses to give his consent, then the marriage may go ahead. This is according to the views of scholars who do not make the guardian’s consent a condition for the validity of the marriage. If the marriage contract goes ahead without the presence or consent of the guardian it is a valid marriage contract, upholding this view.

‘The Council makes clear that not every relative is appropriate as a guardian to give a woman in marriage, there are certain conditions that need to be met. One of the most important of these is that his action should serve, not go against, her interests.’

IslamWeb published its fatwa No. 6,564 in answer to the following question: Is it permissible for a chaste Christian woman to act for herself in marrying a Muslim, without the consent of her Christian guardian?

Answer: It is not permissible for a chaste woman who follows a divine religion to marry a Muslim without the consent of her guardian, who also follows a divine religion. This is because

the Prophet’s hadith says,

‘No marriage is valid without a guardian,’

which is general in its import and applies in all cases. Ibn Qudamah said: ‘If a Muslim marries a woman who belongs to another divine religion, her guardian, who is an unbeliever, acts for her in this marriage. This is mentioned by Abu al-Khattab and it is the view of both Abu Hanifah and al-Shafi'i. He is her guardian and, and as such, he is the one to give her in marriage is valid, just as if he marries her to an unbeliever. As such a woman has a suitable guardian, no one else may act as her guardian.’