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"Does a Woman or Girl
Need the Permission of
Her Father to Marry?"
The following is a translated excerpt from the book Fiqh al-Imam Ja'far as-Sadiq by Sheikh Muhammad Jawad Mughniyah, author of many famous books on Islamic subjects, including the work The Five Schools of Islamic Jurisprudence. As is clear from the text, the Sheikh is of the opinion that a woman or mature girl is free to marry and divorce as she pleases, without it being obligatory that she obtain the permission of her father, as is held by many mujtahids. As most of us know, this conservative ruling makes it very difficult for the young to marry, and makes mut'a relationships impossible for the youth. We at the Nikah Foundation are strongly of the opinion that it is not obligatory for a woman or mature girl to seek the permission of her father to marry, and feel that it is of crucial importance that Muslims, especially the youth, be aware of the freedom that Allah (swt) has given them in this regard.
We have added, in footnote form, a commentary on this text by Hujjat al-Islam Sheikh 'Abd al-Hakeem Carney, who has sought to expand upon the argument presented here, and make the reader aware of the way that hadeeth and usul al-fiqh have been used to argue for the permissibility of marriage without the permission of the woman's father.
Wilayat in marriage is a kind of legal authority over an entrusted person (maula) to a person possessing all of their faculties (kamil). This entrusting will occur because of some sort of deficiency in the entrusted person, and for that person's best interest. The discussion on this involves several points.
The Mature Adult Girl (al-baligah ar-rashidah):
There is agreement that guardianship is established for the immature, under-aged child (sageer and sageerah), for the insane, and for the safih. There is consensus as well that a mature, adult male is independent in issues of marriage, and that no one has authority (wilayat) over such a person. There is, however, disagreement in the mature, adult woman: Is it correct for her to marry without a guardian (waly), and is independent in choosing whom she will as a marriage partner? Or is the independence entirely held by the guardian, and that she has no rights at all in this regard? Or is there some sort of mixture between these two stations, such that neither are independent of each other, and both must be consulted on this issue? Finally, is there a distinction to be made been the virgin and the non-virgin, and between the temporary and permanent wife?
The fuquha have five opinions on this issue. The most famous (mashur) opinion, by the testimony of Allamah Najafi in his Jawahir and Sheikh Ansari in his Makasib, is that no one has any authority over a mature, adult girl. She may, therefore, marry whoever she wishes without limit or condition. Allamah Najafi expresses this when he says that
It is famous...amongst both the early and later jurisprudents that there is no authority over such a girl. In fact, Shareef al-Murtada...reports complete consensus on this.
This is the sound opinion, and we do not challenge it. We can now present the evidences for it:
First Evidence
The concept of wilayat [in this case] conflicts a basic jurisprudential principle (asl), namely that every human being who is adult, sane, and mature is independent in the management of all of his affairs. There is no right to anybody to oppose him in these affairs, be they male or female, so long as the person's choices are not impinging upon the specific rights of others or the general rights of society as a whole. The supposition [underlying this freedom] is that a girl is acting in her own affairs and not the affairs of other than her, and that she possesses all of her faculties in every respect. All of the Muslims, all rational people, and all heavenly and established religions agree upon this principle.
As such, it is not permissible to depart from this principle without certain evidence (ad-daleel al-qaati'). This is because we have explicitly certain belief in this principle, and if we desire to conflict this principle, we can only do so if we have the same explicitly certain belief in a causal factor which would necessitate contravening this principle. This is because "Certainty (yaqeen) is not broken by doubt (shak)," nor by probability (zun). As such, whoever denies guardianship (wilayat) to such a girl does not have the burden of proof upon. Rather, the onus is on the person claiming such guardianship, by bringing forth special or general evidences for his position.
Second evidence
The marriage of a full-grown person is held, by the common understanding, to be a type of contract. It is therefore encompassed by the ayat of Qur'an which reads: "Fulfil your contracts." Rulings are defined by the names which are applied to things, and the fuquha have held to this. Allamah Najafi and Sheikh Ansar both argue, than, that if a girl seeks for marriage someone who is appropriate for her, her contract is correct, even if her guardian disapproved of it.
Third Evidence
The state of Allah the Exalted: "Marry whom you desire from woman." This ayat has generality ('umumat) and is categorical (mutlaq), and its apparent (zahir) meaning is the permissibility (ibaha) and correctness of marriage without making reference to the waly. We would exclude the insane, the immature, or the safihah from this, so everything else not explicitly excluded remains under the general ruling.
Fourth Evidence
We have numerous ahadeeth from the Ahl al-Bayt (as) which specifically give the mature, adult girl (al-baligah ar-rashidah) freedom in issues of marriage, and that she is left with the choice of deciding who she wishes to marry. These ahadeeth include:
1) The saying of Imam As-Sadiq (as): "There is no problem in marrying the virgin girl without her father's permission if she is happy with this."
This hadeeth is explicit in granting independence to the virgin girl in marrying who she wishes, and most certainly for the non-virgin girl. Sheikh Ansari says in Makasib: "This hadeeth does not accept any limitation."
2) Similar to this hadeeth is the narration of Al-Halbi from Imam As-Sadiq (as), when he asked him about mut'a with a virgin girl, to which he replied "No problem."
Sheikh Ansari says that this hadeeth indicates upon the permissibility of mut'a without permission of the wali, and this indicates upon permissibility in permanent marriage as well. He says: "The madhab of the Shi'a jurists have concluded that there can be no statement drawing a distinction between temporary and permanent marriage," meaning that if mut'a is permissible without a wali, than so is a permanent marriage.
3) Imam al-Baqir (as) is narrated to have said: "If a woman is in charge (malikah) of her affairs, she buys and sells, she gives her money out as she wishes, then she is entitled to marry without a wali. If she is not like this, than it is not permissible for her to marry without the permission of her wali."
This hadeeth is clear is denying any wilayat over the mature woman, and it is general in application, applying both to the virgin and the non-virgin, to both temporary and permanent marriage.
One might say: There have come from the Ahl al-Bayt (as) hadeeth which, by their apparent meaning, indicate that that the father has wilayat over the virgin girl. Some of them indicate upon wilayat in permanent marriage, and some indicate upon a sharing of wilayat between the father and the girl, meaning that neither is independent of each other in this regard.
We would say in response, firstly, that these ahadeeth have weak chains of narration, by the testimony of Allamah Najafi, when he says: "Most, if not all, of these ahadeeth are defective in their isnad, to the point where there is no amending (jabir) them." As such, these ahadeeth are not suitable to be used in opposition to the other ahadeeth. The author of Al-Masalik has given an even longer discussion of this problem than Allamah Najafi, and he has not relied upon any of these ahadeeth.
Second, if we suppose that these ahadeeth are saheeh, we can assume that they refer to something recommended (mustahab), and that even though it is best to that one approach the wali in these issues, the marriage is correct without reference to his consent. We can assume this meaning when we join together these ahadeeth and those that deny wilayat. Evidence for this is in the following hadeeth narrated by Ibn 'Abbas. A woman came to the Prophet (s), and said to him: "My father has married me to the son of his brother, and I dislike this." He said to her: "Give permission for what your father has arranged." She said: "I have no desire for what my father has arranged." The Prophet (s) then replied: "Leave me, and go marry whom you wish."
We see that the Prophet (s) has commanded her to give permission for what her father has done. Insofar as she has made known her dislike for what her father did, the Prophet (s) left her with the choice (khiyar). This indicates that the command he gave for her to accept what her father has done indicated upon the mustahab, not the obligatory.
Thirdly, we can suppose that there is no possibility of amalgamating the two sets of ahadeeth, and that the conflict between them remains. In this case, then the ahadeeth which indicate upon the independence of the virgin girl in marriage have prior place, since they are the more common [famous] ahadeeth. Sheikh Ansari says: "The narrations which indicate upon the independence of a virgin girl are rectified by the fatwa of the majority, and the claims of the ijma' [consensus]." Alongside of this, we can also say that the ahadeeth which deny wilayat are in accordance with the clear meaning of the Qur'an, and those that confirm wilayat are in conflict with the Qur'an, as has been stated by Allamah Najafi. It has been confirmed by the Ahl al-Bayt (as) that when there is contradiction between two hadeeth, we take the one that is more well-known, and if they are equally well-known, than take the one that is in accordance with the Qur'an, and abandon the other.
Fourth, if we assume that all of these ahadeeth have equal prevalence over each other in every respect, than in that case we must return to the root, which is the absence of wilayat. This is the case if argue that the two conflicting evidences contradict each other. However, if we say that we can choose between one or the other, than we would have to choose the ahadeeth which indicate upon the absence of wilayat.
We may close this issue with the conclusion given by Allamah Najafi. After he has finished disproving the evidences indicating wilayat over a mature girl, he says:
[size="3"]It is not suitable to anybody, who has even the lowest knowledge of the tendencies of jurisprudence and the practices contained with in its statements, to simply come to rest on this issue.Rather, it is recomennded that a girl prefer the choice of her father over her own, and that she not go ahead by herself in this regard. Similarly, it is recommended for the person who seeks to marry such a girl to not seek the permission of her father. Furthermore, she should take into consideration the opinion of her mother as well, and it is recommended that she bring this issue to the attention of her brother if her father and mother are no longer present, because the brother holds the same position as them in terms of respect.
http://www.mutah.com...age/wilayat.htm
Edited by nays, 11 November 2008 - 05:49 AM.
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