Fiqh, Evidence & Legal Reasoning: The court as a bride’s guardian for marriage contracts

One of my current projects is to give students of fiqh a taste of the evidence behind rulings and legal reasoning, as well as a few hints as to why one opinion is preferred over others. Here’s an example from the section concerning the court serving as a bride’s guardian in marriage contracts when the guardian is absent or refuses to marry her to a suitable groom.

The evidence for marriage contracts requiring a guardian include numerous reports attributed to the Prophet ﷺ. These reports include statements such as “There is no marriage except with a guardian,”1 and “A woman does not marry off another woman, nor marry off herself.”2 Legal texts give details about guardians, their duties, and the order of precedence amongst guardians.

The texts also cover what to do when guardians fall short in their duties or are absent.

If a [guardian who is a] relative rejects [her choice, repeatedly and without right]…

If a woman who is mature and of sound mind asks to be married to a suitable man, the guardian must comply. This is due to Allah Most High saying, “…Do not prevent them from remarrying their [former] husbands…,” [Q2:232], and the Prophet ﷺ said, “Three are not to be delayed: prayer when it is due… and [marriage] for the single woman when someone compatible is found.”3 There is no difference here between a virgin and non-virgin, and whether it is for a typical mahr or less (since it is her right and she can drop it if she so wishes).

…or has travelled beyond the distance for shortening prayers, the governor [ḥākim] marries her.

This is because the governor has general authority. The Prophet ﷺ said, “The sulṭān is the guardian of one who has no guardian.”4

Rulings like this are still put into practice in Islamic courts, as seen in this article in The National.

  1. Abū Dāwūd (2085), Al-Tirmidhī (1101). 
  2. Al-Dāraquṭnī (3536). 
  3. Al-Tirmidhī (1075). 
  4. Abū Dāwūd (2083), Al-Tirmidhī (1102).