Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > Freedom (hurriya) of the wali
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Updated on 27 September 2026 at 3:52 AM
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The jurists of the four schools set validity conditions around the wali (the guardian who contracts the marriage for the woman) and around the spouses themselves. The sheets below deal with freedom (hurriya), discernment (rushd), the Islam of the wali in its situations, equity ('adala), masculinity, ihram, absence of coercion and absence of illness, then two conditions specific to the husband: his Islam and not already having four wives.
Every opinion is rendered exactly as the sheet attributes it: school by school, scholar by scholar, with the references cited at the end of each point.
Starting point recalled by the sheet: guardianship is not established for the insane, while it is permitted for the prophets (peace be upon them); the one who suffers fits of madness from time to time keeps his guardianship, because the loss of his reason is not permanent: he is like the one who faints.
The fuqaha of the four schools have textually required the guardian to be free (hurriya): there is no guardianship for the slave, because he does not manage his own affairs, how then could he manage those of others? And guardianship points to ownership: how could one and the same person be owner and owned at once? This is a guardianship of deliberation and interest, and the interests of the nikah are only realized with reflection and examination; the slave, busy serving his master, cannot devote himself to that and does not know whether his act of marriage produces any benefit.
Main references: al-Mughni (7/16-17), Bada'i' as-Sana'i' (2/239), al-Ikhtiyar (3/120), Mukhtasar al-Waqi'a (1/356), al-Jawhara an-Nayyira (4/300), al-Lubab (2/30), at-Taj wa-l-Iklil (2/504), Mawahib al-Jalil (5/73), Sharh Mukhtasar Khalil (3/187), ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi (3/28), Tahrir al-Mukhtasar (2/567), al-Bayan (9/169), Rawdat at-Talibin (4/701), Kanz ar-Raghibin (3/557), an-Najm al-Wahhaj (7/85), Mughni al-Muhtaj (4/258), Kashshaf al-Qina' (5/56-57), Manar as-Sabil (2/559). Imam Ibn Qattan al-Fasi closes this chapter: if the woman's wali is a child, a slave or an unbeliever, the imam marries her off, and there is no dispute among the people of knowledge on this (al-Iqna' fi Masa'il al-Ijma', 3/1164, no. 2138).
The jurists disagreed: is the wali required to be rashid (of sound judgment), or is the guardianship of the safih (the spendthrift who squanders his property) valid?
The majority of the fuqaha, the Hanafis, the Malikis, the Shafi'is in one opinion and the Hanbalis in one report, do not require rushd: the guardianship of the safih is valid, because he is fully capable of deliberation in the matter of marriage; he can validly contract his own marriage, and he has only been interdicted in respect of his property (hajr) to preserve his money.
The Malikis specify: the safih endowed with judgment marries off his ward and others, with their consent, with the permission of their guardians, as a recommendation (istihbab) and not as a condition. If he marries his daughter, for example, without the permission of her wali, that wali examines the matter as a recommendation according to the interest: if it is right he keeps the marriage, otherwise he annuls it; if he does not examine it, the marriage stands. On the other hand, the safih who is feeble-minded (ma'tuh): his contract is not valid and is annulled, because he is assimilated to the insane.
Shafi'i as-Sawi rules: prodigality (safh) does not prevent guardianship; imbecility ('atah) does. The mention "endowed with judgment" is of little benefit, because the imbecile is not a safih, and that restriction aimed at excluding the imbecile was unnecessary. References: Hashiyat as-Sawi ala ash-Sharh as-Saghir (4/462), al-Ashbah wa-n-Nazair of Ibn Nujaym (1/278), Majma' ad-Damanat (2/901), Bada'i' as-Sana'i' (7/171), al-Ikhtiyar (2/115-116).
The Shafi'is and the Hanbalis require rushd: whoever does not manage his own affairs all the more does not manage those of others. The Shafi'is: no guardianship for one interdicted for prodigality, whether he was born without discernment or squandered his property after being sound and then interdicted; but if he is a safih who has not been interdicted, his guardianship is valid. The Hanbalis: the rushd required here is knowledge of the kafa'a (the matching of spouses) and of the interests of marriage, not the preservation of property, for each situation has its own rushd: this is the statement of ash-Shaykh (Ibn Qudama) and the meaning of what al-Wadih requires, being versed in the interests rather than an old man ignorant of them; al-Qadi and Ibn Aqil said the same. References: al-Fatawa al-Kubra (4/530), al-Insaf (8/74), Kashshaf al-Qina' (5/57), Matalib Uli an-Nuha (5/65), Manar as-Sabil (2/560).
As a general rule, the fuqaha require that the wali of the marriage contract of a Muslim woman be a Muslim. The wali stands in four situations: an unbeliever as wali of a Muslim woman; a Muslim as wali of an unbelieving woman; the Muslim who marries a dhimmi woman (a protected non-Muslim) whose unbelieving wali marries her off; an unbeliever as wali of an unbelieving woman. The sheets deal with the first three.
First situation: the people of knowledge agree that the wali of the Muslim woman must be a Muslim and that an unbeliever cannot be the wali of a Muslim woman. Proof: surah at-Tawba 71 and surah an-Nisa 141.
The believers, men and women, are allies of one another.
Surah at-Tawba, 71
Allah will never grant the unbelievers a way over the believers.
Surah an-Nisa, 141
The unbeliever is not a protector for her, because of the difference of religion, so he cannot be her wali. Ibn al-Mundhir writes in al-Ijma' (p. 352): they agreed that the unbeliever is not the wali of his Muslim daughter. In al-Ishraf ala Madhahib al-Ulama' (5/23) he adds: the mass of those reported from the people of knowledge agrees on this, Allah having cut off guardianship between Muslims and unbelievers: this is the madhhab of Malik, al-Shafi'i, Ahmad, Abu Ubayd, al-Nu'man and their companions.
The dhimmi has no right in the rulings of the Muslims, and the nikah is among their highest rulings: Allah denied him, on the tongue of His prophet, inheritance, retribution and the group solidarity ('aql); the marriage belongs to the woman's wali among the Muslims, otherwise the sultan is the wali of the one who has no wali.
The Hanafis: there is no guardianship of the unbeliever over the Muslim, because there is no inheritance between them; the Prophet said: "People of two religions do not inherit anything from each other"; and the unbeliever is not among the people of guardianship over the Muslim, the Law having cut off his guardianship: guardianship requires the word of the wali to prevail over the person concerned, and the word of the unbeliever does not prevail over the Muslim, as with testimony; an indefinite term in a negation is general, so the verse excludes every form of authority. And the Prophet said: "Islam prevails and is not prevailed over"; establishing the guardianship of the unbeliever over the Muslim would humiliate the Muslim before the unbeliever, which is not allowed: this is why the Muslim woman was protected from the nikah of the unbeliever. References: Bada'i' as-Sana'i' (2/239), al-Hidaya (1/199), al-Ikhtiyar (3/120), Sharh Fath al-Qadir (3/285), Durrar al-Hukkam (1/338), Mukhtasar al-Waqi'a (1/359), al-Jawhara an-Nayyira (4/300-301), al-Lubab (2/30), Majma' al-Anhar (1/497).
The Malikis: the unbelief of the wali prevents the validity of the contract of his Muslim ward; he does not contract the marriage of his Muslim daughter, because he has no guardianship over her, same verses; whether he is a dhimmi, an apostate or a harbi (a man of the land of war) makes no difference. Ibn Arafa: unbelief prevents guardianship over the Muslim woman by consensus. References: at-Taj wa-l-Iklil (2/505), Sharh Mukhtasar Khalil (3/188), ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi (3/29), Tahrir al-Mukhtasar (2/569).
Imam al-Shafi'i: a Muslim is not the wali of an unbelieving woman, not even his own daughter; there is no guardianship over an unbelieving woman except over his slave woman, for what she acquires by her marriage belongs to him; and the unbeliever is not the wali of a Muslim woman, not even his daughter. Proof from an event: Ibn Sa'id ibn al-As married Umm Habiba to the Prophet while Abu Sufyan was still an unbeliever, because she was a Muslim and Ibn Sa'id a Muslim, and no Muslim was closer to her; Abu Sufyan had no guardianship over her, Allah having cut off guardianship and inheritance between Muslims and polytheists. Reference: al-Umm (5/15).
Imam al-Mawardi: the basis is that agreement of religion is a condition for the establishment of guardianship over the bride: the unbeliever is not the wali of a Muslim woman, nor the Muslim the wali of an unbelieving woman, per an-Nisa 141 and al-Ma'ida 51; and at-Tawba 71 shows that the Muslim is not the wali of an unbelieving woman. When the Prophet wanted to marry Umm Habiba bint Abi Sufyan, whose father and brothers were unbelievers while she was a Muslim emigrant in Abyssinia, he had her married by the closest of her agnates (asaba) among the Muslims, Khalid ibn Sa'id ibn al-As: guardianship therefore passes, with unbelief, from the closer relative to the one who shares her religion even if more distant; Allah cut off alliance through difference of religion as He did for inheritance; guardianship was legislated only to protect the woman and ward off dishonor, which difference of religion prevents, as surah at-Tawba 10 says. Reference: al-Hawi al-Kabir (9/115-116).
It is reported that the Prophet, wanting to marry Umm Habiba bint Abi Sufyan (a Muslim, daughter of the unbeliever Abu Sufyan), entrusted Amraw ibn Umayya ad-Damri, who married her on behalf of her cousin Khalid ibn Sa'id ibn al-As, a Muslim (reported in al-Bayan, 9/173).
Ibn Qudama fixes the rule: an unbeliever never marries off a Muslim woman, nor a Muslim an unbelieving woman, unless the Muslim is the sultan or the master of a slave woman. The unbeliever has no guardianship whatsoever over a Muslim woman, by consensus of the people of knowledge, including Malik, al-Shafi'i, Abu Ubayd and the partisans of reasoned opinion; Ibn al-Mundhir: everyone whose statement is transmitted agrees on this.
Abu al-Khattab addresses the dhimmi whose umm walad (the slave mother of his child) embraces Islam: does he contract her marriage? Two opinions: yes, because she is his property: he contracts her marriage like the Muslim, and it is a contract concerning her, like her manumission; or no, per at-Tawba 71: she is a Muslim, so he does not contract her marriage as he would not contract that of his daughter; on this opinion the governor marries her off, and it is the sounder, given the consensus mentioned. References: al-Mughni (7/21), Kashshaf al-Qina' (5/56), Sharh Muntaha al-Iradat (5/134), Manar as-Sabil (2/552).
Ibn al-Qayyim devotes a chapter to the unbeliever who would be wali only of his unbelieving ward, not of the Muslim woman, per at-Tawba 71 and al-Anfal 73. Ahmad said: the Christian and the Jew do not marry and are not guardians; a Christian or a Jew contracts no marriage for a Muslim man or woman, and the wali can only be a Muslim. Asked about the Christian whose daughter has become a Muslim: the sultan is more entitled. Muhanna asked Abu Abdillah (Ahmad): a Christian or a Jew whose daughter has embraced Islam, does the father marry her off?
No. If he does marry her? The nikah is invalid, that is, refused. If she consents?
The marriage is redone. Does he travel with her? No, adding: he is not a mahram (a relative whom she may never marry). Ahmad also said: if she is a Muslim and in need, one likes that her Christian father maintain her, without saying that he is compelled to.
The text contains three points: the unbeliever cannot validly marry off his Muslim ward; he is not a mahram; he is not compelled to maintain her because of the difference of religion.
The sheet then reports the story of Hani' ibn Qabisa: he married his daughter to Urwa al-Bariqi for forty thousand (dirhams) while he was a Christian. Al-Qaqa' ibn Sawwar came and said: your father married you off while a Christian, his marriage is invalid, give yourself to me in marriage; he married her for eighty thousand. Urwa brought the case to Ali ibn Abi Talib: al-Qaqa' has married my wife. Ali: if you have married his wife, I will stone you.
Al-Qaqa': commander of the faithful, her father married her off while a Christian, his marriage is not lawful. Ali: who married you? She married me herself. Ali ratified her marriage, annulled the father's and told Urwa: take your dowry from her father.
Hanbal reports that Abu Abdillah justified it: the matter was returned to the woman because the Christian father has no valid authority over her; this last marriage must be renewed if she consents; the matter was left to her only with her agreement, and she cannot marry herself without a wali. Ali was then the sultan: the wali ratified the contract and said: take your dowry from her father, because Urwa had not consummated; had he consummated, the dowry would have been hers and she would have observed the waiting period ('idda). Harb asked Ahmad: a woman whose father is Christian and whose brother is Muslim, who marries her off? The brother.
Do the polytheists have any guardianship? No. Salih reports from his father: a woman with a dhimmi father and a Muslim brother: the dhimmi is not a wali. Reference: Ahkam Ahl adh-Dhimma (1/295-296).
Second situation: the fuqaha of the four schools, except a report from Ibn Wahb among the Malikis, agree that a Muslim is not the wali of an unbelieving woman.
The Hanafis: if the wali is a Muslim and the person concerned an unbeliever, he has no guardianship over him, because the Muslim does not inherit the unbeliever just as the unbeliever does not inherit the Muslim; the Prophet said: "The believer does not inherit the unbeliever, nor the unbeliever the believer". References: Bada'i' as-Sana'i' (2/239), al-Hidaya (1/199), al-Ikhtiyar (3/120), Sharh Fath al-Qadir (3/285), Durrar al-Hukkam (1/338), Mukhtasar al-Waqi'a (1/359), al-Lubab (2/30), Majma' al-Anhar (1/497).
The Malikis, on the mashhur (the most widespread opinion): a Muslim is not the wali of an unbelieving woman, relative or not, per surah al-Anfal 72; but if the Muslim has contracted her marriage: if he married her to a Muslim, the contract is annulled; if he married her to an unbeliever, it is left alone and not pursued, while holding that the Muslim wronged himself by helping the unbeliever with that contract. Ibn Wahb, however, said: he marries her to a Muslim, not to an unbeliever. Exception: his slave woman and a woman he has manumitted who is not among the women of men paying the jizya (poll tax): if the Muslim owns an unbelieving slave woman, or a woman he manumitted while he was a Muslim in the land of Islam, he may marry her off; if he manumitted her while an unbeliever before embracing Islam, he marries her only to unbelievers, unless she embraces Islam. References: at-Taj wa-l-Iklil (2/505), Sharh Mukhtasar Khalil (3/188), ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi (3/29-30), Tahrir al-Mukhtasar (2/569-570).
The Shafi'is: a Muslim is not the wali of an unbelieving woman except over his slave woman. If he has an unbelieving daughter: no guardianship over her, per al-Anfal 73; if she has an unbelieving wali, he marries her off; otherwise the governor marries her off, per the hadith: "The sultan is the wali of the one who has no wali", without distinction: his guardianship is general and covers the Muslim woman as well as the unbelieving one. If he owns an unbelieving slave woman, does he have guardianship over her marriage? Two opinions: the sounder is that he does, because this guardianship derives from ownership and difference of religion does not prevent it, just as wickedness does not prevent marrying off one's slave woman; the other opinion: he is not her wali, since he cannot marry his unbelieving daughter, all the more his unbelieving slave; the first is sounder.
And if the unbeliever owns a Muslim slave woman, may he marry her off? Ibn as-Sabbagh sees two opinions, as with the Muslim and his unbelieving slave. References: al-Bayan (9/174), Kifayat al-Akhyar (p. 409).
Ibn Hazm: the unbeliever is not the wali of the Muslim woman, nor the Muslim the wali of the unbelieving woman, father or anyone else; the unbeliever is the wali of the unbelieving woman who is his ward, and he marries her to a Muslim or an unbeliever. Proof: at-Tawba 71 and al-Anfal 73; this is the opinion of all whose statements have been preserved, except Ibn Wahb, the companion of Malik, who held that a Muslim is the wali of his unbelieving daughter to marry her to a Muslim or an unbeliever: that is an error. Reference: al-Muhalla (9/473).
Ibn Qudama details: a Muslim has no guardianship over an unbelieving woman, except the sultan, the master of the unbelieving slave woman and the wali of the master; for two people of different religions do not inherit from each other and do not manage each other's affairs, as if one were the slave of the other. The master of the unbelieving slave woman may marry her to an unbeliever, because she is not lawful to Muslims; and the wali of the master acts likewise, for it is a guardianship by property: the master being Muslim does not change it, as with other guardianships; she needs to be married and has no wali other than her master. As for the sultan: he has guardianship over the unprotected woman among the protected people (dhimma), for his guardianship is general over the people of the abode of Islam. As for the unbeliever: his guardianship is established over the people of his religion as was said for the Muslims, with the same conditions; his uprightness in his religion is disputed in two opinions, following the two narrations about its weight among Muslims.
References: al-Mughni (7/21), Kashshaf al-Qina' (5/56), Sharh Muntaha al-Iradat (5/134), Manar as-Sabil (2/552).
Ibn al-Qayyim: a Muslim does not contract the marriage of an unbelieving woman, given the severing of alliance between Muslims and unbelievers, unless he is the sultan or the master of a slave woman, the guardianship of the sultan being general. The master of the slave woman may marry her to an unbeliever although he cannot marry his unbelieving daughter to an unbeliever: the difference is that he marries her by virtue of ownership, as he would sell her to an unbeliever, whereas for his daughter he marries by virtue of guardianship, severed by difference of religion as inheritance and maintenance are. Reference: Ahkam Ahl adh-Dhimma (1/297).
Third situation: when a Muslim marries a dhimmi woman, does her unbelieving wali contract her marriage, or must it be a Muslim, or the judge of the Muslims?
The majority of the fuqaha, the Hanafis, the Malikis, the Shafi'is in the madhhab and the Hanbalis in the madhhab, hold that the unbeliever contracts the marriage of his unbelieving daughter, whether he marries her to a Muslim or to an unbeliever: he is a close relative who looks to the interest.
The Hanafis: the Islam of the wali is not a condition for the establishment of guardianship in general; the unbeliever is therefore the wali of the unbeliever, because unbelief does not impair the compassion that prompts concern for the right of the person concerned, nor inheritance: the unbeliever inherits the unbeliever and is therefore among the people of guardianship over himself, hence over others; per surah al-Anfal 73. References: Bada'i' as-Sana'i' (2/239), al-Hidaya (1/199), al-Ikhtiyar (3/120), Sharh Fath al-Qadir (3/285), Durrar al-Hukkam (1/338), Mukhtasar al-Waqi'a (1/359), al-Jawhara an-Nayyira (4/300-301), al-Lubab (2/30), Majma' al-Anhar (1/497).
The Malikis: the unbelieving wali may be the wali of his unbelieving ward and contract her marriage, whether he marries her to a Muslim or to an unbeliever. If he marries her to a Muslim and she has no other unbelieving wali, one turns to their family chiefs; if they refuse and she brings the matter to the sultan, he compels them to marry her off, this being part of lifting injustice; he does not compel them to marry her to a Muslim. References: at-Taj wa-l-Iklil (2/506), Sharh Mukhtasar Khalil (3/188), ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi (3/30), Tahrir al-Mukhtasar (2/570-571).
The Shafi'is: the original unbeliever contracts for the original unbelieving woman, whether he marries her to an unbeliever or to a Muslim, because he is a close relative who looks to the interest, per al-Anfal 73. Condition of his guardianship: that he commit nothing forbidden in his religion; if he does, he is like the wicked person in our view and does not marry off his ward; otherwise, if he is of correct appearance (mastur), he marries her off. His guardianship is distinguished from his testimony, which is not accepted even if he has committed nothing: testimony is pure authority over another, and the unbeliever is not qualified for it; the wali, in marrying, looks to the interest of his ward but also to his own, to protect her and ward off dishonor from the lineage. References: al-Bayan (9/174), Rawdat at-Talibin (4/704-705), an-Najm al-Wahhaj (7/91-92), Kanz ar-Raghibin (3/562), Mughni al-Muhtaj (4/261), Tuhfat al-Muhtaj (8/610-611), Nihayat al-Muhtaj (6/277), ad-Dibaj (3/207-208).
Ibn Qudama: if a Muslim marries a dhimmi woman, her unbelieving wali marries her to him; Abu al-Khattab mentioned it, and it is the opinion of Abu Hanifa and al-Shafi'i, because he is her wali.
The fuqaha of the four schools agree that the apostate (murtadd) has no guardianship at all: neither over a Muslim woman, nor over an apostate woman, nor over any other; he inherits no one, and he has no valid guardianship over himself, to the point that no one may marry him: not a Muslim, not an unbeliever, not an apostate like him; he therefore has no guardianship over others. References: Bada'i' as-Sana'i' (2/239), al-Fatawa al-Hindiyya (1/284), at-Taj wa-l-Iklil (2/506), Sharh Mukhtasar Khalil (3/188), ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi (3/30), Tahrir al-Mukhtasar (2/570-571), Asna al-Matalib (3/132), an-Najm al-Wahhaj (7/92), Mughni al-Muhtaj (4/261), al-Mughni (7/21), Kashshaf al-Qina' (5/56), Sharh Muntaha al-Iradat (5/134), Manar as-Sabil (2/552).
Sixth condition: is the wali required to be upright ('adala), or is the guardianship of the wicked (fasiq) valid?
The Hanafis, the Malikis, the Shafi'is in one opinion and the Hanbalis in one opinion do not require uprightness: the fasiq may marry off his daughter.
The Hanafis: uprightness is not a condition for the establishment of guardianship; the wicked man may marry off his young son and daughter, by the general scope of surah an-Nur 32:
Marry the singles among you, as well as the righteous among your male and female slaves.
Surah an-Nur, 32
and the hadith: "Marry off your wards to their matches (akfa')" without distinction; and the consensus of the community from the time of the Messenger of Allah to our day: no one objects, especially among the Arabs, the Kurds and the Turks; this is a guardianship of deliberation, and wickedness impairs neither the capacity for deliberation, nor its motive which is compassion, nor inheritance: therefore not guardianship; the fasiq is among the people of guardianship over himself, hence over others like the upright man, all the more as his testimony is accepted; and he belongs to one of the two types of guardianship, guardianship of ownership since he marries off his slave woman, hence all the more to the other type. Reference: Bada'i' as-Sana'i' (2/239).
The Malikis, on the mashhur: wickedness does not strip guardianship nor remove it; it does not pass to the more distant relative, because fisq does not strip guardianship on the more likely view, given the general scope of an-Nur 32; he is an agnate (asaba), free, Muslim, sane and adult; he owns the right to marry himself off, so he may be the wali of the contract like the upright man; fisq does not affect the purpose of the guardianship of marriage and is therefore no impediment to it. It does, however, strip the guardianship of its completeness: if an upright man of his degree is present, he is given precedence over the fasiq. References: al-Ishraf ala Nukat Masa'il al-Khilaf (3/295-296, no. 1129), at-Taj wa-l-Iklil (2/504), Sharh Mukhtasar Khalil (3/187), ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi (3/28), Tahrir al-Mukhtasar (2/567-568).
The Shafi'is in the madhhab and the Hanbalis in the madhhab require the wali to be upright, even in appearance: no guardianship for the fasiq, except the supreme imam, whose guardianship remains valid. Proof: the statement attributed to Ibn Abbas: "Any woman married off by an unworthy guardian, her marriage is invalid", reported by ad-Daraqutni (3521) and al-Bayhaqi in as-Sunan al-Kubra (13494); sahih as a statement, weak as words raised to the Prophet; and: "There is no marriage without a discerning wali (murshid) and two upright witnesses", reported by al-Bayhaqi (13428) and al-Baghawi in Sharh as-Sunna (2264), sahih as a statement. Al-murshid has the meaning of ar-rashid just as al-muslih has that of as-salih; the fasiq is not discerning; guardianship belongs to dignity and wickedness causes degradation, hence the rejection of his testimony; that defect prevents testimony, so it prevents guardianship like slavery; and guardianship of property is likewise denied him, as is the office of judge.
The guardianship of the fasiq being invalid, it passes to whoever is more distant from the woman; if he abandons his sin, it returns to him.
Most of the later Shafi'is nevertheless chose the validity of the contract concluded by the fasiq, without removal of his guardianship, as an-Nawawi textually stated in ar-Rawda; he reports a fatwa of al-Ghazali: if removing the guardianship would pass it to a judge who commits what makes him wicked, it is not removed, otherwise it is. An-Nawawi: this is well said and should be acted upon; Ibn as-Salah ruled so and as-Subki strengthened it; al-Adhra'i said: for years I have been answering that the marriage of a wicked guardian is valid. Later scholars chose it when wickedness had become widespread. A report from al-Shafi'i allows the contract with two wicked witnesses when wickedness is widespread and marriage is interrupted: the offspring, sought in its permanence, would be interrupted likewise, just as carrion is permitted to the compelled for survival.
As for the supreme imam, he is not deposed for wickedness: he marries off his daughters without another wali, and those of others by the general guardianship, even if wicked, to magnify his office. References: al-Umm (7/222), al-Hawi al-Kabir (9/62), al-Bayan (9/170-171), Rawdat at-Talibin (4/703), an-Najm al-Wahhaj (7/90), Kanz ar-Raghibin (3/560), Mughni al-Muhtaj (4/260), Tuhfat al-Muhtaj (8/608-609), Nihayat al-Muhtaj (6/276), ad-Dibaj (3/207).
The Hanbalis in the madhhab: uprightness is required, even apparent, except for the sultan: uprightness is not required of him, in marrying off by general guardianship the woman who has no wali, because of necessity. References: al-Mughni (7/17), al-Mubdi' (7/35), Kashshaf al-Qina' (5/57), Sharh Muntaha al-Iradat (5/134-135), Manar as-Sabil (2/557).
Ibn Qudama presents two narrations on this condition. The first: uprightness is a condition. Ahmad said: if the judge is like Ibn al-Halabiyya and Ibn al-Ja'diyya, who accepted marriages, he appears to have corrupted the marriage, given the lack of uprightness of the one who contracted it: this is the opinion of al-Shafi'i, based on the statement of Ibn Abbas: "There is no marriage without a discerning wali and two upright witnesses", which Ahmad judged the soundest thing here; it is also reported from Ibn Abbas: "There is no marriage without a wali and two upright witnesses, and any woman married off by an unworthy guardian, her marriage is invalid"; and from Abu Bakr al-Barqani, from Jabir, that the Messenger of Allah said: "There is no marriage without a discerning wali and two upright witnesses"; and it is a guardianship of deliberation which the wicked man does not initiate, like the guardianship of property. The second narration: uprightness is not a condition: Muthanna ibn Jam' reports that he asked Ahmad: what if one marries with a wicked wali and non-upright witnesses?
He saw nothing in the marriage corrupted by it; this is the apparent meaning of the text of al-Khiraqi, who mentioned the child, the slave and the unbeliever without mentioning the fasiq; and it is the opinion of Malik, of Abu Hanifa and one of the two opinions of al-Shafi'i: he manages his own marriage, so his guardianship over others is established like that of the upright man; the cause of guardianship is kinship and its condition deliberation, and he is a close relative who deliberates. References: al-Mughni (7/17), al-Mubdi' (7/35), Kashshaf al-Qina' (5/57), Sharh Muntaha al-Iradat (5/134-135), Manar as-Sabil (2/557).
Seventh condition: must the wali be a man, or may a woman be a guardian?
Those who allow the woman to marry herself off, Imam Abu Hanifa, Zufar, al-Hasan and the apparent narration of Abu Yusuf, allow her to be a guardian and to contract marriage for herself and for others. Al-Mawsili (Hanafi): the woman's word carries weight in marriage, to the point that a free, sane, adult woman who marries herself off is valid; likewise if she marries off another by guardianship or by agency (wakala), or appoints someone to contract her marriage, or ratifies a contract concluded by another: this is the opinion of Abu Hanifa, Zufar, al-Hasan and the apparent view of Abu Yusuf. Muhammad (ash-Shaybani): the contract is only valid with the ratification of the wali; if the two spouses die before that ratification, they do not inherit from each other, no divorce takes place, nor zihar (the formula of prohibited comparison), and intercourse is forbidden.
If the wali refuses to ratify: at-Tahawi reports from Muhammad that the judge renews the contract between them; Hisham reports from Muhammad: I would ratify it myself, being then a judge: two narrations from him; it is also reported that he returned to the opinion of Abu Hanifa seven days before his death; the jurist Abu Ja'far al-Hinduwani reports that a woman came to Muhammad three days before his death to complain: my wali will not marry me except by taking much money from me; he told her: go and marry yourself, which supports that return. From Abu Yusuf, outside the narration of the usul, the opinion matches the first statement of Muhammad; in another narration: if she marries herself to a match (kuf'), the contract stands; to a non-match, it depends on the ratification of the wali. References: Mukhtasar Ikhtilaf al-Ulama' of at-Tahawi (2/350), al-'Inaya Sharh al-Hidaya (4/402-403), al-Jawhara an-Nayyira (4/284, 286), al-Ikhtiyar (3/112).
Those who forbid the woman to marry herself off, the majority: the Malikis (with an internal dispute), the Shafi'is, the Hanbalis, Abu Yusuf in a narration and Muhammad (with a difference of transmission), say she can be neither guardian nor agent for another, because she does not own her own marriage. References: Mukhtasar Ikhtilaf al-Ulama' (2/350), al-'Inaya (4/402-403), al-Jawhara an-Nayyira (4/284, 286), al-Istidhkar (5/297), al-Qawanin al-Fiqhiyya (p. 133), Sharh Mayyara (1/260), ash-Sharh al-Kabir (5/215-216), al-Bayan (6/403), Rawdat at-Talibin (3/495), Mughni al-Muhtaj (3/194), Nihayat al-Muhtaj (5/18), ad-Dibaj (2/303), I'anat at-Talibin (3/161), Asna al-Matalib (2/265), al-Mughni (5/51), al-Kafi (2/241).
Ibn Abd al-Barr: the woman does not contract her own marriage without her wali, nor contract the marriage of another; Malik, al-Shafi'i, Sufyan, ath-Thawri, Ibn Abi Layla, Ibn Shubrama, Ibn al-Mubarak, Ubaydullah ibn al-Hasan, Ahmad, Ishaq, Abu Thawr, Abu Ubayd and at-Tabari said so; it is reported from Umar, Ali, Ibn Mas'ud, Ibn Abbas and Abu Hurayra; it is the opinion of Sa'id ibn al-Musayyib, al-Hasan, Umar ibn Abd al-Aziz and Jabir ibn Zayd Abu ash-Sha'tha'; the partisans of reasoned opinion in Kufa and some of the tabi'in differed. Reference: at-Tamhid (19/84).
Al-Qadi Abd al-Wahhab (Maliki): the woman is not a valid guardian, neither for herself nor for others, per the texts: "There is no marriage without a wali"; "Any woman who marries without the permission of her wali, her marriage is invalid, said three times", which establishes a right of the wali in the contract; "A woman does not marry off a woman, nor marry herself"; the woman is incomplete by her femaleness like the slave woman; and the nature of women carries desire for marriage, inclination toward men and haste: if contracts were entrusted to them, they would rush without regard to the match or the outcome, with harm to them and to the guardians. Reference: al-Ishraf ala Nukat Masa'il al-Khilaf (3/283, 286, no. 1122).
The Shafi'is: the woman contracts neither the offer nor the acceptance, by guardianship or by agency: entering into it does not befit the good manners aimed at by modesty; surah an-Nisa 34 says of men that they watch over women, including the guardianship of their marriage. If the wali appoints his daughter, for example, to appoint a man to contract on his own behalf (not on hers), or releases her, it is valid: she is an ambassador between the wali and the agent, unlike the agency she would take for herself. Ash-Shirbini: if a calamity placed a woman at the head of the community, her decisions take effect by necessity, as Ibn Abd as-Salam said, and by analogy her power to conclude marriage would be valid. The woman's consent to the marriage of another is only taken into account for her own property, or for a safih or an insane person whose testamentary guardianship she holds.
References: al-Muhadhdhab (2/35), al-Hawi al-Kabir (9/41-42), al-Bayan (9/152, 157), Sharh Sahih Muslim (9/205), Rawdat at-Talibin (4/688-689), an-Najm al-Wahhaj (7/64, 66), Kanz ar-Raghibin (3/546-547), Mughni al-Muhtaj (4/247), ad-Dibaj (3/193), al-Iqna' (2/409).
Ibn Qudama: masculinity is a condition of guardianship by agreement of all: completeness is considered; the woman is incomplete and limited: guardianship is established over her for her insufficiency in deliberating for herself, all the more so not for others. References: al-Mughni (7/16), Kashshaf al-Qina' (5/56), Sharh Muntaha al-Iradat (5/133), Manar as-Sabil (2/556). Ash-Shawkani summarizes the majority opinion: the woman has no guardianship in marriage, neither for herself nor for others; her word carries no weight, in offer or in acceptance: she neither marries herself with the wali's permission nor without him, marries no one by guardianship or agency, and accepts no marriage by guardianship or agency: this is the opinion of the majority. Reference: Subul as-Salam (3/120).