Islamic Fiqh > Marriage and family > Wilaya (marital guardianship) and kafa'a > Kafaa: equivalence criteria
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Updated on 26 September 2026 at 7:12 PM
Kafaa, the equivalence between spouses, is one of the major questions in the fiqh of marriage: jurists debated whether it is a condition of validity or of binding force of the contract, at what point it is assessed, who may invoke it and what its criteria are. This chapter presents the positions of the four schools with their Quranic and prophetic evidence and their classical references, including takhrij and citations. The six sheets below provide a faithful rendering, sheet by sheet.
The Prophet (peace and blessings of Allah be upon him) said:
"The Muslims are equivalent in their lives (their bloods)."Hadith cited in Matalib uli an-nuha, vol. 5, p. 84
That is, they are equal, so that the life of the humblest among them equals that of the noblest; equivalence is taken into account here in five matters.
Taking equivalence into account in marriage: the fuqaha agreed on taking kafaa into account in marriage; for interests are, as a rule, only ordered between equals; the noble woman refuses to be laid beneath a base man. It is taken into account only at the inception of the marriage, and its continuation afterward is not required: even if he marries her while her equivalent and then becomes a defiant sinner, the marriage is not annulled.
And because the intended purpose of the legality of marriage is the ordering of each spouse's interests with the other for the length of life; for it was laid down to establish marriage alliances, so that the distant becomes near, a support and a helper, delighted by what delights you and grieved by what grieves you; and this occurs only through concord and closeness, yet there is no closeness of souls when lineages are far apart.
And because marriage aims at good companionship: if the woman is of higher standing she turns away from the man, and the aim is not fulfilled by him.
Moreover, equivalence is taken into account only for the right of women, not for the right of men: when the noble man marries a woman of low condition, his guardians have no right to object; for he is the one who lies beneath, not she, and the baseness of the bed does not anger him. And because the texts came concerning it with regard to men specifically: the Prophet (peace and blessings of Allah be upon him) had no equal, yet he married from among the noblest of the Arabs.
The Prophet (peace and blessings of Allah be upon him) said:
"Three will be given their reward twice: a man who has a slave woman, teaches her and teaches her well, educates her and educates her well, then frees her and marries her: he has a double reward; a believer from among the People of the Book who was a believer and then believes in the Prophet (peace and blessings of Allah be upon him): he has a double reward; and a slave who performs Allah's due and sincerely advises his master."Narrated by al-Bukhari (2849)
And because the purpose for which kafaa was legislated entails that taking it into account is specific to their side (the women's): it is the woman who feels indignation, not the man; for she is the one laid beneath, while the husband is the one who lies on top, and disgust does not reach him from her side.
Al-Kasani (may Allah have mercy on him) said: "Some of our shaykhs said that equivalence on the women's side is also taken into account by Abu Yusuf and Muhammad, drawing on an issue mentioned in al-Jam' as-saghir, in the chapter on agency: an amir ordered a man to get him married, and he married him to another's slave woman. It was said: valid according to Abu Hanifa, invalid according to the two of them. There is no proof in this issue for what they claimed; for the prohibition according to the two of them may rest on another meaning: they hold as a principle that an unrestricted agency is qualified by custom and usage, so it applies to what is customary, as with an agent for an unrestricted sale." (Bada'i' as-sana'i', 2/320; al-Hidaya, 1/200; al-Ikhtiyar, 3/123; Sharh Fath al-Qadir, 3/293-294; al-Jawhara an-nayyira, 4/304-305; al-Lubab, 2/33; al-Bahr ar-ra'iq, 3/137; al-'Inaya, 4/441; Mukhtasar al-Wiqaya, 1/360-361; Majmu' al-fatawa, 19/28.)
The majority of the fuqaha holds that she may not be married to a non-equivalent without her consent, except for a report from Abu Hanifa mentioned earlier; for that is harming her and bringing shame upon her. If she is married to a non-equivalent, the right of option is established for her according to most of the fuqaha; as narrated from Aisha (may Allah be pleased with her):
A girl came to the Messenger of Allah (peace and blessings of Allah be upon him) and said: O Messenger of Allah, my father married me to his nephew to raise his lowliness by me. The Prophet referred the matter back to her. She said: I have approved what my father did, but I wanted the women to know that fathers have no say in this.Weak hadith: narrated by An-Nasa'i (3269), Imam Ahmad (25043), Ishaq ibn Rahawayh in his Musnad (1359) and Ibn Abi Shayba in his Musannaf (16230)
And in al-Bukhari:
From al-Khansa bint Khidam al-Ansariyya: her father married her off while she was a previously married woman (thayyib), and she disliked it; she went to the Messenger of Allah (peace and blessings of Allah be upon him), who annulled her marriage.Narrated by al-Bukhari (4845)
Is kafaa a condition of the validity of marriage? Of its binding force? Or is it not a condition at all?
The fuqaha differed on kafaa in marriage: is it a condition of validity, so that marriage is valid only if equivalence is realized between the spouses? A condition of its binding force, so that the woman or her guardians may waive it? Or is it not a condition at all, with no right of option attached to it?
The majority of the fuqaha, namely the Hanafis, Malikis, Shafi'is and Hanbalis within the school, hold that kafaa in marriage is not a condition of validity but a condition of its binding force: if the woman and her guardians agree to waive equivalence and she is married to a man who falls short of her in equivalence, the marriage is valid; by the word of Allah, exalted be He:
"O mankind, We created you from a male and a female and made you peoples and tribes that you may know one another. Verily, the noblest of you in the sight of Allah is the most righteous of you."
Surah al-Hujurat, 13
He said, exalted be He:
"The believers are but brothers."
Surah al-Hujurat, 10
He said:
"The believing men and women are allies of one another."
Surah at-Tawba, 71
And He said, exalted be He:
"Their Lord responded to them: I never let the work of any worker among you go to waste, be it male or female: you are one of another."
Surah Al 'Imran, 195
And Allah, exalted be He, said:
"Virtuous women are for virtuous men, and virtuous men are for virtuous women."
Surah an-Nur, 26
And He said, exalted be He:
"Marry those that please you among the women."
Surah an-Nisa, 3
And the Prophet (peace and blessings of Allah be upon him) said:
"O people, your Lord is One and your father is one: know that there is no superiority of an Arab over a non-Arab, nor of a non-Arab over an Arab, nor of a white over a black, nor of a black over a white, except by piety."Sound hadith: narrated by Imam Ahmad in his Musnad (23536)
And he said (peace and blessings of Allah be upon him):
"Know that the family of so-and-so are not my allies; my allies are Allah and the righteous believers."Narrated by Muslim (215)
And the Prophet (peace and blessings of Allah be upon him) said:
"If there comes to you one whose religion and character you approve, marry him; if you do not, there will be discord on earth and great corruption." They said: O Messenger of Allah, even if there is (some shortcoming) in him? He said: If there comes to you one whose religion and character you approve, marry him, three times.Fair hadith: narrated by At-Tirmidhi (1085)
He did not single out the Arab as against the freedman (mawla), and carrying it upon the generality is more fitting.
In al-Bukhari, from Aisha, the wife of the Prophet (peace and blessings of Allah be upon him), and Umm Salama:
Abu Hudhayfa ibn Utba ibn Rabi'a ibn Abd Shams had adopted Salim and married him to his brother's daughter Hind bint al-Walid ibn Utba ibn Rabi'a, while he was the freedman of a woman of the Ansar.Narrated by al-Bukhari (4800), Abu Dawud (2061) and An-Nasa'i (3223)
No one of the people of that time disapproved of him for it or blamed him.
The Prophet (peace and blessings of Allah be upon him) ordered Fatima bint Qays, who was Qurayshi, to marry Usama ibn Zayd, who was among the freedmen, and she married him at his command:
He said to me: "Marry Usama." So I married him, Allah placed good in him, and I was pleased with him.Narrated by Muslim (1480)
Zaynab bint Jahsh, of Banu Asad ibn Khuzayma, whose mother was the paternal aunt of the Messenger of Allah (peace and blessings of Allah be upon him), was married by her father to Zayd ibn Haritha, who was among the freedmen; he married her until he divorced her, and the Messenger of Allah (peace and blessings of Allah be upon him) married her.
Dhuba'a bint az-Zubayr ibn Abd al-Muttalib was the wife of Miqdad ibn al-Aswad, who was an ally (halif) of Quraysh.
The sister of Abd ar-Rahman ibn Awf was married to Bilal.
From Abu Salama, from Abu Hurayra (may Allah be pleased with him): Abu Hind performed cupping on the Prophet (peace and blessings of Allah be upon him) in the palace of Yafukh. The Prophet (peace and blessings of Allah be upon him) said:
"O Banu Bayada, give (a wife) to Abu Hind and give to him."Fair hadith: narrated by Abu Dawud (2102) and Ibn Hibban in his Sahih (4067)
Ibn Mas'ud said to his sister:
"I adjure you by Allah not to marry anyone but a Muslim, even if he were a white Byzantine or a black Abyssinian."Weak hadith: narrated by Sa'id ibn Mansur in his Sunan (1/82); in its chain is Ibrahim at-Taymi, who was born about a year after the death of Ibn Mas'ud, so the chain is disconnected
All of this indicates that marriage to a non-equivalent is not unlawful when the guardian and the woman are content and she is of sound judgment (rashida).
And because the prohibition connected to equivalence aims at warding off shame: it is a right of hers and of the guardians to which no right of Allah, exalted be He, attaches; if they agree to waive it, it is permitted, like a reduction from the dower of the like (mahr al-mithl) or the warranty of freedom from defects. (Mukhtasar Ikhtilaf al-'ulama, 2/252-253; at-Tamhid, 19/162, 165; al-Ishraf 'ala nakt masail al-khilaf, 3/305-306, no. 1142; Tafsir al-Qurtubi, 16/347; ash-Sharh al-kabir with Hashiyat ad-Dasuqi, 3/58; Tathbir al-mukhtasar, 2/598; al-Bayan, 9/195-196; Rawdat at-talibin, 4/720; an-Najm al-wahhaj, 7/116-117; Mughni al-muhtaj, 4/273; Tuhfat al-muhtaj, 8/644-645; ad-Dibaj, 3/220; al-Mughni, 7/26-27; Sharh az-Zarkashi, 2/335-336; al-Insaf, 8/105-106; Kashshaf al-qina', 5/72-73; Matalib uli an-nuha, 5/84; Manar as-sabil, 2/566-567.)
Imam Ahmad, in a narration which is the view of most of the early scholars, holds that kafaa is a condition of the validity of marriage: if a woman, together with her guardians, accepts marriage to a non-equivalent, the marriage is not valid, its condition being absent; if the freedman marries an Arab woman, they are separated; for she was prevented from marrying herself so that she would not place herself with a non-equivalent, and the contract is therefore void out of fear of shame, all the more so here, and because of the right of Allah, exalted be He, in it.
And from Jabir, in words attributed to the Prophet (peace and blessings of Allah be upon him):
"Do not marry women except to equivalents, and let none marry them off except their guardians; and there is no dower below ten dirhams."Fabricated hadith: narrated by Ad-Darqutni (3601), who said: it contains Mubashshir ibn Ubayd, an abandoned narrator whose hadiths are not corroborated
And from Abu Ishaq al-Hamdani, from Abu Layla al-Kindi, who said: Salman set out with thirteen men of the companions of the Messenger of Allah (peace and blessings of Allah be upon him) on a journey. When the time of prayer came, they said: step forward, O Abu Abdillah, you are the most knowledgeable and the eldest of us. He said: Allah has favored you over us, O company of Arabs: you command us and we do not command you, and you marry our women while we do not marry yours. A man of the group stepped forward and led them in four rak'ahs. When he finished, Salman said to him:
"You prayed four rak'ahs; we were more in need of the concession."Weak hadith: narrated by Abd ar-Razzaq in al-Musannaf (10329), Sa'id ibn Mansur in his Sunan (593) and al-Bayhaqi in as-Sunan al-kubra (5224)
Omar (may Allah be pleased with him) said:
"I will most certainly prevent women of noble lineage from being given in marriage except to equivalents."Weak hadith: narrated by Ad-Darqutni (3785)
And because marriage aims at good companionship: if the woman is of higher standing she turns away from the man, and the aim is not fulfilled. (Al-Mughni, 7/26-27; Sharh az-Zarkashi, 2/335-336; al-Insaf, 8/105-106; Kashshaf al-qina', 5/72-73; Sharh Muntaha al-iradat, 5/150-151; Matalib uli an-nuha, 5/84; Manar as-sabil, 2/566-567; Majmu' al-fatawa, 19/28.)
Al-Karkhi among the Hanafis, and al-Kasani reports the same from Sufyan ath-Thawri and al-Hasan al-Basri, hold that kafaa is not a condition at all. They cite what is reported: Abu Tayba sought (a woman's) hand among Banu Bayada, who refused to marry her to him. The Messenger of Allah (peace and blessings of Allah be upon him) said:
"O Banu Bayada, give (a wife) to Abu Hind and give to him."Fair hadith: narrated by Abu Dawud (2102) and Ibn Hibban in his Sahih (4067)
It is reported that Bilal (may Allah be pleased with him) sought (a woman's) hand among a people of the Ansar, who refused to marry her to him. The Messenger of Allah (peace and blessings of Allah be upon him) said to him:
"Say to them: the Messenger of Allah (peace and blessings of Allah be upon him) orders you to marry me (to one of them)."Narration not found by the author
The Messenger of Allah (peace and blessings of Allah be upon him) commanded the marriage despite the absence of equivalence; had it been taken into account he would not have commanded it, for marriage to a non-equivalent is not a commanded act. And he said (peace and blessings of Allah be upon him):
"There is no superiority of an Arab over a non-Arab, nor of a non-Arab over an Arab, nor of a white over a black, nor of a black over a white, except by piety."Sound hadith: narrated by Imam Ahmad in his Musnad (23536)
This is an explicit text. And because, if equivalence were taken into account in the Law, it would be in the cases most deserving of it.
It is said: marriage to a defiant sinner is not valid and its annulment is obligatory; a group preferred this view.
Ad-Dasuqi (may Allah have mercy on him) said: the gist of the issue is that what al-Hattab and others transmitted, and what the shaykh Ibn Rahal endorsed, apparently indicates prohibiting her marriage to a sinner from the outset, even if one feels safe from him, and that neither she nor her guardian has the right to accept it; and this is the apparent view: for mixing with the sinner is forbidden and forsaking him is a legal obligation, so what of the mixing of marriage? (Hashiyat ad-Dasuqi with ash-Sharh al-kabir, 3/58-59; Hashiyat as-Sawi 'ala ash-Sharh as-saghir, 5/27; Minh aj-jalil, 3/324.)
The Shafi'is said: marrying her to a non-equivalent with her consent is disliked, unless there is a benefit; and marrying her to a sinner with her consent is disliked, as the shaykh Izz ad-Din said, unless one fears an outrage or a mischief arising from not marrying her to him: as when fornication is feared if he does not marry her, or the domination of a wicked man over her. (Mughni al-muhtaj, 4/274; ad-Dibaj, 3/220; Hashiyat al-'Umayra, 3/586.)
The time for taking equivalence into account: most of the fuqaha, in general terms, namely the Hanafis, Shafi'is and Hanbalis, hold that equivalence is taken into account at the inception of the marriage and its continuance is not required: if the husband met the criteria of equivalence at the time of the contract and then lost them after the contract, the contract is valid and is not annulled for that.
The Hanafis said: equivalence in marriage is taken into account at the inception of the marriage, and its continuation is not taken into account afterward; even if he marries her while her equivalent and then becomes a wicked destitute, the marriage is not annulled. (Al-Jawhara an-nayyira, 4/304; Mukhtasar al-Wiqaya, 1/360-361; Dirar al-hukkam, 4/102; ad-Durr al-mukhtar, 3/92.)
The Shafi'is said: what counts for the criteria of equivalence is the state at the time of the contract. Admittedly, abandoning the base occupation beforehand has no effect unless a year has passed, as many have stated; and this is clear if he has taken up something else so that its name has vanished and he is no longer ascribed to it at all; otherwise a period must pass that cuts off the attribution of the occupation, so that he is no longer reviled for it.
Ibn al-'Imad and az-Zarkashi discussed that a sinner who repents is not the equivalent of the chaste, virtuous woman; and Ibn al-'Imad stated elsewhere that the married adulterer, even if he repents and his repentance is good, does not become an equivalent again, just as his chasteness does not return; and that one barred for prodigality is not the equivalent of a woman of sound judgment.
Once it is established that the state at the time of the contract is decisive, it is known that the onset of the base occupation does not establish the right of option, and this is the sounder view; for the right of option in marriage, after its validity, arises only through the five causes mentioned in their chapter, and through manumission while she is owned by a slave; and the onset of the base occupation is none of these, nor of their meaning.
Ash-Shihab ar-Ramli (may Allah have mercy on him) said: as for the statement of al-Isnawi, "The right of option arises if sinfulness is renewed," it is rejected, as al-Adhra'i, Ibn al-'Imad and others said; indeed, the onset of slavery annuls the marriage; and al-Isnawi's statement, "she has the choice by it," is a misjudgment. (Nihayat al-muhtaj, 6/296; Tuhfat al-muhtaj, 8/650-651.)
The Hanbalis within the school said: if equivalence disappears after the contract, annulment belongs to the wife alone, not to her guardians, like her manumission while owned by a slave; for the guardians' right lies in the inception of the contract, not in its continuance.
Imam Ahmad was asked about one who drinks wine: are the two separated? He said: Allah forgive; what counts, according to this narration, is its existence at the time of the contract, not after it. (Kashshaf al-qina', 5/72-73; Sharh Muntaha al-iradat, 5/151; Matalib uli an-nuha, 5/84; Manar as-sabil, 2/567.)
The right in equivalence belongs to the woman and to the guardians: most of the fuqaha stated that equivalence is a right of the wife and of the guardians together, so that even if the wife accepts a non-equivalent, the guardians may object and have the marriage annulled.
The Hanafis said: equivalence is a right of the guardians and of the woman; if the woman marries herself to a non-equivalent, the guardians may separate them to ward off shame from themselves; for the right established for her is not the right established for the guardians: what is established for her is the preservation of her person from the humiliation of the bed, and what is established for the guardians is the preservation of their lineage from having ascribed to them by marriage one who is not their equivalent; the one is not the other, so the waiver of one does not entail the waiver of the other. Do you not see that the right of option may be established for her where it is not established for the guardians?
It is the same whether the guardian is a close relative within forbidden degrees or not, such as the paternal cousin; and this separation occurs only before the judge.
The guardian's silence in not demanding separation does not void his right of annulment, even if a long time passes until she conceives; if she bears a child by him, they can no longer separate them, so that the child is not lost from the one who raises him. So long as the judge has not ruled between them, the ruling of divorce, zihar, ila' (the vow of abstinence) and inheritance stands between them, and the separation is an annulment, not a divorce.
If the husband has not consummated the marriage, she gets nothing; if he has consummated it, or been alone with her in a valid seclusion, everything named (the dower and the like) is due, the maintenance of the waiting period is due, and she must observe the waiting period.
If she marries herself to a non-equivalent and her guardian gives her the dower and takes her mahr, he no longer has the right of annulment after that; for that is a ratification of the ruling of the contract.
If the woman marries a non-equivalent and one of the guardians accepts it, that is permitted; and one who is his like in guardianship or farther than he cannot annul it, unless he is closer to her: then he may demand separation, according to Abu Hanifa and Muhammad.
Abu Yusuf said: if one of the two guardians accepts a non-equivalent, the guardian who is his like may decline to accept it.
If some of the guardians waive their right in equivalence, the right of the rest falls away if the woman accepts that, according to Abu Hanifa and Muhammad.
Abu Yusuf said: the right of one who did not accept does not fall away. (Al-Mabsut, 5/26-27; al-Hidaya, 1/201; al-Ikhtiyar, 3/125; Sharh Fath al-Qadir, 3/294; al-'Inaya, 4/442; al-Jawhara an-nayyira, 4/305-306; al-Lubab, 2/32.)
The Malikis said: equivalence is a right of the woman and of the guardian together, and both may waive it together; if they do not accept together, the say is with whichever of the two refuses, and the judge must prevent whichever of the two accepts. (Hashiyat ad-Dasuqi with ash-Sharh al-kabir, 3/58-59; Hashiyat as-Sawi 'ala ash-Sharh as-saghir, 5/27; Minh aj-jalil, 3/324.)
The Shafi'is said: equivalence is a right of the woman and of the guardian, whether the guardian is one or several equal in degree; her acceptance of a non-equivalent therefore does not suffice: the acceptance of all the guardians is required, not that of one of them; for they have a right in equivalence, so their acceptance of waiving it is taken into account like that of the woman. This differs from the case where one of them marries her to an equivalent without the dower of the like, with her consent without theirs: the marriage is then valid; for they have no right in the dower and no shame to fear.
If the nearest guardian marries her to a non-equivalent with her consent, the more distant guardians may not object; for they no longer have any right in this marriage.
If the virgin is married by coercion, or the previously married woman (thayyib) with an authorization from her that is unrestricted, not limited to an equivalent or a non-equivalent, and she is married to a non-equivalent, the marriage is not valid, for lack of her consent.
Excepted from what precedes is the case where the lack of equivalence is blindness in one eye (jabb) or impotence ('unna): marriage to a one-eyed man or an impotent man is valid with her consent, even if the guardian does not accept.
If a woman with no particular guardian asks the ruler or his deputy to marry her to a non-equivalent and he does so, the marriage is not valid in the sounder view; for he is the deputy of the Muslims, who have a share in equivalence.
The opposite of the sounder view: the marriage is valid, like that of the particular guardian; but if the ruler marries her because of the guardian's absence or stubborn refusal, she may be married only to an equivalent beyond doubt.
Marrying to a non-equivalent with her consent is disliked, and marrying her to a sinner with her consent likewise, as the shaykh Izz ad-Din said, unless one fears an outrage or a mischief arising from not marrying her to him: as when fornication is feared if he does not marry her, or the domination of a wicked man over her. (Al-Bayan, 9/197; Rawdat at-talibin, 4/720-721; Asna al-matalib, 3/193; an-Najm al-wahhaj, 7/117-118; Mughni al-muhtaj, 4/273, 275; Tuhfat al-muhtaj, 8/645, 649; ad-Dibaj, 3/220.)
The Hanbalis said: equivalence in marriage is a right of the woman and of all the guardians, near and far, even one of them born after the contract; for they are equal in the shame that reaches them through the loss of equivalence.
If the woman is married to a non-equivalent, she may annul the marriage even after a delay; for it is a defect in the object of the contract, akin to the option for defect, so long as she has not accepted by word or deed, such as admitting him into her home knowingly, aware that he is not her equivalent.
Likewise her guardians have the right to annul it; for they are equal in the shame that reaches them through the loss of equivalence.
If the woman accepts, or some of them accept, annulment remains with whoever did not accept; the most distant holds it with the consent of the nearest; for the marriage is not binding for lack of equivalence, and the shame falls upon them all.
If the father marries his daughter to a non-equivalent with her consent, the brothers have the right of annulment by explicit statement; for the shame of marrying to a non-equivalent falls upon them all.
If equivalence disappears after the contract, annulment belongs to the wife alone, not to the guardians, like her manumission while owned by a slave; for the guardians' right lies in the inception of the contract, not in its continuance. (Kashshaf al-qina', 5/72-73; Sharh Muntaha al-iradat, 5/151; Matalib uli an-nuha, 5/84; Manar as-sabil, 2/567.)
The criteria of equivalence: these are the qualities taken into account in the husband so that he may be her equivalent. They are: religion, lineage (nasab, also called hasab), free status, occupation, wealth, and freedom from defects that give a right of option. Some of these criteria are agreed upon among the fuqaha of the four schools and some are disputed.
1. Religion: what is meant by religion is religiousness, that is, that he be religious and not a defiant sinner; not religion in the sense of Islam; for neither she nor her guardian can waive it and take a disbeliever. The debauchee and the sinner are therefore not the equivalent of a chaste, upright woman; for he is disqualified from testimony and narration, which is a defect in his humanity: he is not the equivalent of an upright man. Allah, exalted be He, said:
"Is he who believes like he who is defiantly disobedient? They are not equal."
Surah as-Sajda, 18
And the Prophet (peace and blessings of Allah be upon him) said:
"If there comes to you one whose religion and character you approve, marry him; if you do not, there will be discord on earth and great corruption." They said: O Messenger of Allah, even if there is (some shortcoming) in him? He said: If there comes to you one whose religion and character you approve, marry him, three times.Fair hadith: narrated by At-Tirmidhi (1085)
And because the sinner is despised, disqualified from testimony and narration, not to be trusted with life or property, stripped of guardianship, deficient before Allah and before His creation, with little share in this world and the next: he cannot be the equivalent of a chaste woman nor her equal; but he may be the equivalent of his like.
If the guardian marries a virtuous woman to a sinner or a debauchee without her consent, she may annul the marriage; likewise, if she is the daughter of a righteous father and marries herself to a sinner, her guardians have the right to object; for legitimate pride in religion is more rightful than pride in lineage, free status and wealth, and reproach for sinfulness is the severest form of reproach. The saying of the Prophet (peace and blessings of Allah be upon him):
"A woman is married for four things: her wealth, her lineage, her beauty and her religion. Choose the one with religion: may your hands be covered in dust."Narrated by al-Bukhari (4802) and Muslim (1466)
indicates that it best fulfills the intended aim. This is the view of the majority of the fuqaha: the Hanafis within the school, the Malikis, the Shafi'is and the Hanbalis.
Muhammad ibn al-Hasan said: equivalence is not taken into account in religion; for religion belongs to the matters of the hereafter, while equivalence belongs to the rulings of this world: sinfulness therefore does not impair it, unless it is something outrageous, as when the sinner is one who is mocked, laughed at and slapped. If he is one who is feared, as when he is a warlike amir, he may be an equivalent; for such sinfulness is not counted as disgrace in custom and therefore does not impair equivalence. According to Abu Yusuf, an open sinner is not an equivalent; if he is concealed, he is an equivalent. (Bada'i' as-sana'i', 2/320; al-Jawhara an-nayyira, 4/308; al-Ikhtiyar, 3/124; al-'Inaya, 4/449; Mukhtasar al-Wiqaya, 1/362; al-Lubab, 2/33; Tafsir al-Qurtubi, 16/347; al-Ishraf 'ala nakt masail al-khilaf, 3/306-307, no. 1143; al-Fawakih ad-dawani, 2/9; at-Taj wal-iklil, 2/526; Mawahib al-jalil, 5/103; Sharh Mukhtasar Khalil, 3/205; ash-Sharh al-kabir with Hashiyat ad-Dasuqi, 3/58; Tathbir al-mukhtasar, 2/598; Rawdat at-talibin, 4/718; Kunz ar-raghibin, 3/581; an-Najm al-wahhaj, 7/126-127; Mughni al-muhtaj, 4/277; Tuhfat al-muhtaj, 8/656; ad-Dibaj, 3/226; al-Ifsah, 2/134-135; al-Mughni, 7/27-28; Sharh az-Zarkashi, 2/338; Kashshaf al-qina', 5/73; Sharh Muntaha al-iradat, 5/152; Manar as-sabil, 2/569; Fath al-Bari, 9/132.)
The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: the fuqaha agreed on taking equivalence into account in religion and on the establishment of annulment upon the loss of this equivalence; they differed over the validity of marriage without it, and these are two famous positions in the madhhab of Ahmad and others. Whoever marries an adulteress while she commits adultery has consented to share with others in it and has accepted for himself the condition of the cuckold; and the adulterer who marries her while he commits adultery with others does not guard his water before depositing it in her; rather he casts it in her and among other prostitutes: she is like the adulteress who takes a lover; for the purpose of marriage is the guarding of water in the woman, and this man does not guard his water. Allah, glorified be He, stipulated for men that they be chaste, not fornicators, when He said:
"Lawful to you are all beyond those mentioned, that you seek them with your wealth, in chaste wedlock, not in fornication."
Surah an-Nisa, 24
He continues: this meaning is among what must not be neglected, for the Quran states it and explains it with obligatory clarity, as He said:
"A surah which We have sent down and which We have made obligatory."
Surah an-Nur, 1
(Majmu' al-fatawa, 15/317.)
Ibn al-Qayyim (may Allah have mercy on him) said: what the ruling of the Prophet (peace and blessings of Allah be upon him) entails is taking religion into account in equivalence, at the root and in perfection: a Muslim woman is not married to a disbeliever, nor a chaste woman to a debauchee. The Quran and the Sunna took nothing else into account in equivalence: they forbade the Muslim woman the marriage of the wicked adulterer, and took no account of lineage, occupation, wealth or free status; so they permitted the slave in partial ownership (qinn) to marry the free woman of noble lineage and wealth if he is chaste and a Muslim; permitted those other than Qurayshis to marry Qurayshi women, those other than Hashimites to marry Hashimite women, and the poor to marry the wealthy. (Zad al-ma'ad, 5/159-160.)
Ibn Rushd (may Allah have mercy on him) said: as for equivalence, they agreed that religion is taken into account in it, except for what is reported from Muhammad ibn al-Hasan about setting aside the consideration of religion. The school did not differ that if the father marries his virgin daughter to a wine drinker, or in general to a sinner, she has the right to refuse the marriage, and the judge looks into it and separates them; and likewise if he marries her to a man whose wealth is unlawful, or to a man who swears oaths of divorce repeatedly. (Bidayat al-mujtahid, 2/12.)
2. Lineage (nasab, also called hasab): the fuqaha differed over lineage: is it one of the criteria of equivalence or not?
Most of the fuqaha, namely the Hanafis, the Shafi'is and the Hanbalis, hold that lineage (hasab) is one of the criteria taken into account in equivalence.
The Hanafis said: lineage is that in which equivalence is taken into account; the foundation is the word of the Prophet (peace and blessings of Allah be upon him):
"The Arabs are equivalents one to another: tribe with tribe and man with man; and the freedmen (mawali) are equivalents one to another: tribe with tribe and man with man, except the weaver or the cupper."Fabricated hadith: narrated by al-Bayhaqi in as-Sunan al-kubra (13547)
And because boasting and reproach occur through lineages: the disgrace reaches her whose lineage is lowly, so equivalence is taken into account in it.
Thus the Qurayshis are equivalents one to another despite the difference of their tribes, so that the Qurayshi who is not a Hashimite, such as the Taymi, the Umawi, the Adawi and the like, can be the equivalent of the Hashimite; by his word (peace and blessings of Allah be upon him): "Quraysh: they are equivalents one to another," and Quraysh includes Banu Hashim; and the Arabs are equivalents one to another by explicit text. But the Arabs are not the equivalent of Quraysh, because of Quraysh's virtue over the rest of the Arabs through their nearness to the Messenger of Allah (peace and blessings of Allah be upon him); for that reason the imamate was restricted to them. The Prophet (peace and blessings of Allah be upon him) said: "The imams are of Quraysh." By contrast, the Qurayshi can be the equivalent of the Hashimite even if the Hashimite has a virtue the Qurayshi lacks; but the Law abolished the consideration of that virtue in marriage.
The freedmen are not the equivalents of the Arabs, because of the Arabs' precedence over the non-Arabs; and the freedmen are equivalents one to another by explicit text. The freedmen of the Arabs are the equivalents of the freedmen of Quraysh, by the generality of his word: "The freedmen are equivalents one to another, man with man." Then, the non-Arabs boast of Islam, not of lineage; and one who has only a single forefather in Islam is not the equivalent of one who has many; for full recognition is through the grandfather, and increase beyond that has no limit. It is said: this is when it is in a place where Islam is old and long established; but in a place where Islam is recent, such that one is not reviled for it and it is not counted a defect, some may be the equivalents of others; for if the reproach is not repaired by it and is not counted a defect, disgrace and humiliation do not attach, and harm is not realized. (Bada'i' as-sana'i', 2/319; al-Jawhara an-nayyira, 4/306-307; al-Ikhtiyar, 3/124; al-'Inaya, 4/449; Mukhtasar al-Wiqaya, 1/362; al-Lubab, 2/33.)
The Shafi'is said: lineage is one of the criteria of equivalence: the woman is ascribed to what gives her nobility, in view of what the husband is ascribed to; for the Arabs take the fullest pride in their lineages. The consideration of lineage is through fathers, not mothers: the non-Arab, his father counting, is not the equivalent of an Arab woman even if his mother is an Arab, whereas an Arab woman whose mother is a non-Arab remains an equivalent; for Allah chose the Arabs over others. And no Arab other than the Qurayshi is the equivalent of the Qurayshi woman, according to the report:
"O people, put Quraysh forward and do not put them back: learn from them and do not teach them. The strength of a man of Quraysh equals the strength of two men other than them, and the trustworthiness of a man of theirs equals that of two others. Were Quraysh not destitute, I would have told them what they have with Allah."Sound hadith: narrated by al-Bazzar (465) and Abu Nu'aym in Hilyat al-awliya (9/64)
And none other than the Hashimite and the Muttalibite is the equivalent of the Hashimite or Muttalibite woman; and the Arabs other than Quraysh are equivalents one to another.
The sounder view: nobility and lineage are taken into account among the non-Arabs as among the Arabs, by analogy with them: the Persians and the Banu Isra'il are nobler than the Copts, for their precedence and the multitude of prophets among them.
The opposite view: it is not taken into account among them; for they do not care to preserve lineages nor record them, unlike the Arabs.
One who embraced Islam, or one of whose nearest forefathers embraced Islam later in Islam, is not the equivalent of her whose Islam is earlier: one who embraced Islam himself is not the equivalent of one who has a father or more in Islam, and one who has two fathers in Islam is not the equivalent of one who has three fathers in it. (Rawdat at-talibin, 4/717; Kunz ar-raghibin, 3/581; an-Najm al-wahhaj, 7/125-126; Mughni al-muhtaj, 4/276-277; Tuhfat al-muhtaj, 8/653, 655; ad-Dibaj, 3/224-225.)
The Hanbalis said: standing (lineage) is one of the criteria of equivalence: the non-Arab, that is, one who is not an Arab, is not the equivalent of an Arab woman; by the word of Omar (may Allah be pleased with him):
"I will most certainly prevent women of noble lineage from being given in marriage except to equivalents."Weak hadith: narrated by Ad-Darqutni (3785)
And because marriage aims at good companionship: if the woman is of higher standing she turns away from the man, and the aim is not fulfilled.
And from Abu Ishaq al-Hamdani, from Abu Layla al-Kindi, who said: Salman set out with thirteen men of the companions of the Messenger of Allah (peace and blessings of Allah be upon him) on a journey. When the time of prayer came, they said: step forward, O Abu Abdillah, you are the most knowledgeable and the eldest of us. He said: Allah has favored you over us, O company of Arabs: you command us and we do not command you, and you marry our women while we do not marry yours. A man of the group stepped forward and led them in four rak'ahs. When he finished, Salman said to him:
"You prayed four rak'ahs; we were more in need of the concession."Weak hadith: narrated by Abd ar-Razzaq in al-Musannaf (10329), Sa'id ibn Mansur in his Sunan (593) and al-Bayhaqi in as-Sunan al-kubra (5224)
And because the Arabs take equivalence into account in lineage and feel indignation at the marriage of their women to freedmen, considering it a defect and a shame.
The Arabs are equivalents one to another, and the rest of mankind likewise; for Miqdad ibn al-Aswad al-Kindi married Dhuba'a, daughter of az-Zubayr, the paternal uncle of the Prophet (peace and blessings of Allah be upon him); Abu Bakr married his sister to al-Ash'ath ibn Qays al-Kindi; and Ali married his daughter Umm Kulthum to Omar ibn al-Khattab. (Al-Mughni, 7/26-27; Sharh az-Zarkashi, 2/338; Kashshaf al-qina', 5/72; Sharh Muntaha al-iradat, 5/152; Matalib uli an-nuha, 5/85; Manar as-sabil, 2/570.)
The Malikis hold that lineage is not one of the criteria of equivalence.
It is stated in al-Mudawwana al-kubra: (It was said) what do you think if she is a previously married woman (thayyib) and the suitor seeks her hand herself, but her father or guardian refuses to marry her, and she refers the matter to the ruler, who is below her in lineage and nobility yet her equivalent in religion, and she accepts him while the guardian refuses? (He replied) the ruler marries her and pays no heed to the word of the father and guardian if she accepts and he is sound in his religion. He said: and this is the view of Malik.
(It was said) what do you think if he is sound in religion but not her equivalent in wealth, and she accepts him while the guardian refuses to accept: does the ruler marry her to him or not? (He replied) I heard nothing from Malik on this, except that I asked Malik about the marriage of freedmen with Arab women and he said: there is no harm in it. Do you not see what Allah said in His book:
"O mankind, We created you from a male and a female and made you peoples and tribes that you may know one another. Verily, the noblest of you in the sight of Allah is the most righteous of you."
Surah al-Hujurat, 13
(It was said) what do you think if she accepts a slave while she is an Arab woman, and the father or guardian refuses to marry her while she is a previously married woman (thayyib): does the ruler marry her to him or not? (He replied) I heard nothing from Malik on this except what I have told you. And it was said to Malik: some of these people separated an Arab woman from a freedman, and he detested that most strongly: all the people of Islam are equivalents one to another, by the word of Allah in the Revelation:
"We created you from a male and a female and made you peoples and tribes that you may know one another. Verily, the noblest of you in the sight of Allah is the most righteous of you."
Surah al-Hujurat, 13
(Al-Mudawwana al-kubra, 4/163-164.)