Islamic Fiqh > Marriage and family > Wilaya (marital guardianship) and kafa'a > Kafaa: craft, wealth and cases
Contents
Updated on 26 September 2026 at 7:12 PM
The chapter of kafaa, the requirement of compatibility between spouses in marriage, concludes here with the second part of the sheets of the al-Mawsu'a fiqh encyclopedia. Six sheets are compiled: trade and craft as a criterion of compatibility, wealth (al-yasar), freedom from the grave defects that warrant annulment, the legal consequences of the absence of kafaa, disagreement over the suitor's kafaa, and finally the impossibility of finding a kufu' for the betrothed woman together with the mother's objection to her daughter's marriage. Every school position is reported with its verses, hadiths, figures and classical references.
The sheet opens with the account of Barira, which closes the preceding discussion of free origin: if the option (khiyar) attaches to freedom that arises through manumission, it attaches with greater reason to prior freedom.
A'ishah, may Allah be pleased with her, said: "I bought Barira and her people stipulated her right of patronage (wala'). I mentioned it to the Prophet, peace and blessings be upon him, who said: 'Free her, for patronage belongs to the one who paid the money.' I freed her, then the Prophet, peace and blessings be upon him, summoned her and gave her the choice concerning her husband, who was a slave. She said: 'Even if he gave me such and such wealth, I would not stay with him' (in one narration: 'I would not spend the night with him'), and she chose her own person."Reported by al-Bukhari (6377) and Muslim (1504)
Trade (al-hirfa) is a craft from which one earns one's living; it bears this name because a person devotes himself to it in seeking a livelihood, considering its importance, or mostly so. It includes scholarship, the judiciary and their opposites, and it is broader than a craft (as-sin'a), because the latter covers only what is executed by means of an instrument, unlike trade. A lowly trade (al-hirfa ad-dani'a) is any trade whose very practice reveals the decline of the sense of honor (muru'a) or the abasement of the soul, such as handling filth ("Mughni al-Muhtaj", 4/278; "Tuhfat al-Muhtaj", 8/656-657; "ad-Dibaj", 3/226).
The jurists differ: does trade count among the traits of kafaa in marriage, or not? The Hanafis according to the opinion adopted among them, namely that of Abu Yusuf and Muhammad and of Abu Hanifa in one narration, together with the Shafi'is and the Hanbalis in the madhhab, hold that trade is a trait of kafaa: one who practices a lowly trade is not a kufu' of the daughter of one who practices a noble trade.
Their proof is the word of Allah:
"Allah has favored some of you over others in provision"
Surah An-Nahl, 16:71
that is, in its means: some attain it in dignity and ease, others in humiliation and hardship. And His word:
"Shall we believe you while the lowest of people follow you?" (111)
Surah Ash-Shu'ara, 26:111
The exegetes said: they were weavers, and this designation was not denied to them ("an-Najm al-Wahhaj", 7/128-129; "Mughni al-Muhtaj", 4/278-279; "Tuhfat al-Muhtaj", 8/656-657; "Nihayat al-Muhtaj", 6/299-300; "ad-Dibaj", 3/226).
The Hanafis say: kafaa in trades and crafts is taken into consideration according to Abu Yusuf and Muhammad, because people mock the lowly among them and boast of the nobility of the craft. Thus the weaver, the cupper, the tanner and the street sweeper are not kufu' of the jeweler or the money-changer, nor of similar trades; and some of them are kufu' of one another.
The disbelievers are kufu' of one another; for kafaa is considered in order to ward off disgrace, and no disgrace is greater than disbelief.
As for Abu Hanifa and Abu Yusuf in one narration, they hold that trade is not taken into consideration, and this is the apparent view, to the point that the veterinarian would be a kufu' of the perfumer; for trade is not a permanent attribute, and one may move from a lowly trade to a noble one ("Bada'i' as-Sana'i'", 2/320; "al-Hidaya", 1/202; "al-Ikhtiyar", 3/124; "al-Jawhara an-Nayyira", 4/309; "Mukhtasar al-Wiqaya", 1/363; "Sharh Fath al-Qadir", 3/301; "al-Bahr ar-Ra'iq", 3/134; "al-Lubab", 2/34).
The Shafi'is say: trade is among the traits of kafaa in marriage. One who practices in person, or one of whose forefathers practiced, a lowly trade, that is, a craft whose practice reveals the decline of honor and the abasement of the soul, such as handling filth, is not a kufu', neither he nor his son, of a man of higher standing; they argue by the two verses above, including the exegesis of the weavers. Thus the street sweeper, the cupper, the field guard, the shepherd, the bathhouse keeper and their likes, like the weaver, are not kufu' of the daughter of the tailor; the apparent view is that these are kufu' of one another. The tailor is not a kufu' of the daughter of the merchant or of the daughter of the cloth merchant, whereas the merchant and the cloth merchant are kufu' of each other; but neither of them is a kufu' of the daughter of the scholar or of the daughter of the judge, in consideration of the custom ('urf) in this matter.
It may be said: how does shepherding count among the lowly trades when it was the sunna of the prophets at the beginning of their mission? The answer: it does not follow that it is a quality of praise for anyone other than them; do you not see that the inability to write in the case of the Prophet, peace and blessings be upon him, was a miracle and therefore a quality of praise in his case, which is not so for anyone else. The soundest view is that anyone whose trade involves handling an impurity, such as slaughtering according to the soundest opinion, is not a kufu' of one whose trade does not involve it; the remaining trades, in which they mentioned no hierarchy, are equal, unless custom steadily establishes differences among them. This is supported by the saying of some of them: the butcher is not a kufu' of the daughter of the fishmonger.
Whoever has two trades, one lowly and one noble: the one for which he is known is considered, and most often the lowly one; indeed, to say that it prevails in every case would not be far-fetched, for he is never free of mockery on its account. Custom is taken into account in trades and crafts: in some lands agriculture takes precedence over commerce, and in others the reverse; it has been said that the consideration attaches to general custom. The land taken into consideration is that of the wife, not that of the contract; for what matters is whether she is humiliated or not, and this is only known by reference to the custom of her land, that is, the one she is in at the time of the contract ("Rawdat at-Talibin", 4/718-719; "an-Najm al-Wahhaj", 7/128-129; "Mughni al-Muhtaj", 4/278-279; "Tuhfat al-Muhtaj", 8/656-657; "Nihayat al-Muhtaj", 6/299-300; "ad-Dibaj", 3/226).
The Hanbalis in the madhhab say: craft is among the traits of kafaa in marriage. Whoever belongs to a lowly craft, such as the weaver, the cupper, the field guard, the stone-cutter, the tanner, the keeper and attendant of the bath, the garbage collector, is not a kufu' of the daughters of people of honor nor of practitioners of noble crafts, such as commerce and construction; for that constitutes a deficiency in the custom of people, resembling a deficiency of lineage. A text is reported:
"The Arabs are kufu' of one another, except the weaver and the cupper."Reported by al-Bayhaqi in as-Sunan al-Kubra (13547), a hadith judged fabricated
It was said to Ahmad, may Allah have mercy on him: how do you adopt it while you weaken it? He replied: it is acted upon, meaning that it has come in agreement with the people of custom ("al-Mughni", 7/29; "al-Mubdi'", 7/53; "Kashshaf al-Qina'", 5/73; "Sharh Muntaha al-Iradat", 5/153; "Matalib Uli an-Nuha", 5/86; "Manar as-Sabil", 2/569).
As for Imam Abu Hanifa in one narration, the Malikis, and Ahmad in one narration, they hold that this constitutes no deficiency; for it is not a deficiency in religion, and trade is not a permanent attribute: one may move from a lowly trade to a noble one. It therefore resembles weakness and sickness. Some said:
"Piety (taqwa), that is honor and generosity; and your love of this world, that is humiliation and sickness. No servant of piety bears any blemish, if he fulfills taqwa, even were he to weave or cup."
The Malikis consider kafaa only in three things: religion, free origin, and freedom from the defects that warrant annulment ("Bada'i' as-Sana'i'", 2/320; "al-Hidaya", 1/202; "al-Ikhtiyar", 3/124; "al-Jawhara an-Nayyira", 4/309; "Mukhtasar al-Wiqaya", 1/363; "al-Lubab", 2/34; "al-Ishraf 'ala nukt masail al-khilaf", 3/306-307, no. 1143; "al-Fawakih ad-Dawani", 2/9; "at-Taj wa-al-Iklil", 2/526; "Mawahib al-Jalil", 5/103; "Sharh Mukhtasar Khalil", 3/205; "ash-Sharh al-Kabir with the hashiya of ad-Dasuqi", 3/58; "Tahrir al-Mukhtasar", 2/598; "al-Mughni", 7/29; "al-Mubdi'", 7/53).
The jurists differ concerning wealth: does it count among the traits of kafaa in marriage, so that a poor man is not a kufu' of a wealthy woman, or is it not taken into account? The Hanafis, the Shafi'is against the soundest opinion, and the Hanbalis in the madhhab hold that wealth is among the traits of kafaa: a man in need is not a kufu' of a wealthy woman.
"Honor (hasab) is money, and generosity (karam) is piety (taqwa)."Authentic hadith, reported by at-Tirmidhi (3271), Ibn Majah (4219) and Ahmad (20114)
"The lineages of the people of this world are money."Good (hasan) hadith, reported by Ahmad (23109) and ad-Daraqutni (3805)
He also said to Fatima bint Qays, when she informed him that Mu'awiya had proposed to her:
"As for Mu'awiya, he is a destitute man who has no money."Reported by Muslim (1480)
Further reasons follow: boasting of money is the most widespread of customs, especially in our time; marriage is necessarily linked to the mahr and to maintenance, whereas it is not linked to lineage or free origin, so that since kafaa is taken into account for lineage and free origin, it applies here with greater reason; a wealthy woman suffers harm from her husband's poverty, as he fails to maintain her and meet the expenses of her children, which is why she obtains annulment for failure to maintain, and likewise when the poverty is concurrent; and it counts among the deficiencies in the custom of people, of which people boast as they boast of lineage, and more so. An-Nabigha ibn al-Hajjaj as-Sahmi said:
"She pressed me for divorce as soon as she saw me: my wealth had grown scanty, and she came to me in disgust. As if the man of a beloved lineage were cherished, while the poor man lives a life of misery."
Wealth was therefore among the conditions of kafaa, like lineage.
According to the Hanafis, the consideration given to money requires that he own the mahr and the maintenance. The mahr meant is the prompt mahr (mu'ajjal), the one whose amount is customarily paid in advance, while the remainder is not considered even if it falls due. As for maintenance, it suffices that he earn each day the amount of maintenance and of what he needs in clothing; he is not required to match her wealth: if the husband can pay a mahr like hers and her maintenance, he is her kufu', even if he does not match her in money.
As for Abu Yusuf, he did not take into account the capacity to pay the mahr, because waiver by mutual agreement often occurs in it, and one is deemed capable through the wealth of one's father; besides, money has no permanence: it is spent and renewed ("al-Hidaya", 1/202; "al-Ikhtiyar", 3/124; "Tabyin al-Haqa'iq", 2/130; "al-Jawhara an-Nayyira", 4/307-308; "Mukhtasar al-Wiqaya", 1/362; "al-Lubab", 2/33).
The Hanbalis say: the wealth taken into account is that by which he can spend on her according to what is due to her and pay her mahr. Ibn 'Aqil said: to the extent that her customary standard at her father's house does not change ("al-Mughni", 7/29; "al-Kafi", 3/32; "al-Mubdi'", 7/53; "Kashshaf al-Qina'", 5/73-74; "Sharh Muntaha al-Iradat", 5/153-154; "Matalib Uli an-Nuha", 5/86; "Manar as-Sabil", 2/569-570).
The Shafi'is, on this view, which is against the soundest opinion in the madhhab, distinguish two aspects in taking wealth into account:
The Malikis, the Shafi'is in the madhhab, and the Hanbalis in one narration hold that wealth does not count among the traits of kafaa: the poor man is a kufu' of the rich woman. Money is a passing shadow, a changing state, a fortune that tilts, going and coming; people of honor do not boast of it, it is people of trifles who boast of it, hence the poet said:
"We were at times wealthy, in destitution as in opulence: Time gave us to drink from both their cups. Our wealth never swelled our arrogance toward any kinsman, and our poverty never disgraced our lineages."
And because poverty is an honor in religion, the Prophet, peace and blessings be upon him, said:
"O Allah, let me live poor and die poor, and resurrect me in the company of the poor on the Day of Resurrection."Authentic hadith, reported by at-Tirmidhi (2352) and Ibn Majah (4126)
Sahl ibn Sa'd as-Sa'di, may Allah be pleased with him, reports:
A man passed before the Messenger of Allah, peace and blessings be upon him, who said to a man sitting with him: "What do you think of this one?" He said: "A man among the nobles; by Allah, this one, were he to propose, would deserve to be married, and were he to intercede, his intercession would be accepted." The Messenger of Allah, peace and blessings be upon him, kept silent. Then another man passed, and the Messenger of Allah, peace and blessings be upon him, said to him: "What do you think of this one?" He said: "Messenger of Allah, this one is a man among the poor of the Muslims: were he to propose, he would not be married; were he to intercede, his intercession would not be accepted; were he to speak, his word would not be heard." The Messenger of Allah, peace and blessings be upon him, said: "This one is better than an earth filled with the likes of that one."Reported by al-Bukhari (6082)
This statement, however, is not a binding command; it resembles health as against sickness ("Ahkam al-Qur'an" of Ibn al-'Arabi, 4/159; "Bidayat al-Mujtahid", 2/12-13; "al-Ishraf 'ala nukt masail al-khilaf", 3/306-307, no. 1143; "al-Fawakih ad-Dawani", 2/9; "at-Taj wa-al-Iklil", 2/526; "Mawahib al-Jalil", 5/103; "Sharh Mukhtasar Khalil", 3/205; "Rawdat at-Talibin", 4/719; "an-Najm al-Wahhaj", 7/129; "Mughni al-Muhtaj", 4/279; "Tuhfat al-Muhtaj", 8/661; "Nihayat al-Muhtaj", 6/300; "ad-Dibaj", 3/228; "al-Mughni", 7/29; "al-Kafi", 3/32; "al-Mubdi'", 7/53; "Kashshaf al-Qina'", 5/73-74; "Sharh Muntaha al-Iradat", 5/153-154; "Matalib Uli an-Nuha", 5/86; "Manar as-Sabil", 2/569-570).
The jurists differ concerning freedom from the grave defects that give the wife the option of dissolving the marriage: does it count among the traits of kafaa, or not? The Malikis, the Shafi'is and Ibn 'Aqil among the Hanbalis hold that freedom from the defects that open the option in marriage is among the traits of kafaa: whoever is afflicted with one of them, such as madness, leprosy or vitiligo, is not a kufu' of the woman free of them.
The Malikis say: kafaa is taken into consideration in marriage with regard to the state, that is, freedom from the defects that give the wife the option, such that he matches her in health. These defects are: madness, leprosy, vitiligo, urinary incontinence (jabb) and impotence ('unna); for it is a deficiency that opens the option ("al-Ishraf 'ala nukt masail al-khilaf", 3/306-307, no. 1143; "at-Taj wa-al-Iklil", 2/526; "Mawahib al-Jalil", 5/103; "Sharh Mukhtasar Khalil", 3/205; "ash-Sharh al-Kabir with the hashiya of ad-Dasuqi", 3/58; "Tahrir al-Mukhtasar", 2/598-599; "Hashiyat as-Sawi on ash-Sharh as-Saghir", 5/25).
The Shafi'is say: among the traits of kafaa taken into account in marriage is freedom from the defects that open the option; whoever is afflicted with madness, leprosy, vitiligo, incontinence or impotence is not a kufu' of the woman free of them; for the soul recoils from the company of one afflicted with them, and the purpose of marriage is thereby compromised. The same applies when both spouses have such defects: there is no kafaa, whether the two defects differ, such as imperforation (ratq) and hypospadias (majbub), or whether they are identical, as between two men with vitiligo or two lepers, even if her defects are more numerous and graver; for a person tolerates in another what he does not tolerate in himself.
This attribute is considered in the two spouses themselves, not in their parents. As for the defects that do not open the option, they have no effect: blindness, the amputation of limbs, a disfigured appearance, the lack of youth in a young woman, and everything that dashes expectation according to the soundest view. It has been said: these defects bar kafaa. Beauty and its opposite are not attributes taken into account, any more than stinginess, generosity, tallness or shortness.
The condition of freedom from these defects relates to the woman; as for the guardian (wali), madness, leprosy and vitiligo are considered in his case, not incontinence or impotence ("Rawdat at-Talibin", 4/716, 719; "an-Najm al-Wahhaj", 7/120-121; "Mughni al-Muhtaj", 4/275-276; "Tuhfat al-Muhtaj", 8/652; "Nihayat al-Muhtaj", 6/296; "ad-Dibaj", 3/223).
Ar-Ruhaybani, may Allah have mercy on him, said: it is preferable that freedom from the defects that open the option of annulment be required among the conditions of kafaa; our companions did not mention it, but according to Ibn 'Aqil and Abu Muhammad it is a condition. The shaykh Taqi ad-Din said: Ahmad alluded to it, in that a woman afflicted with defects is not married off even if she wishes. On this view, freedom from defects is among the traits of kafaa; if our companions did not mention kafaa here, it is because they mention the kafaa whose stipulation for the validity of marriage is disputed, the one that is a right of Allah or of whichever guardian comes after; whereas marriage is not void by its absence, with the consent of the woman and the guardians, by unanimous agreement. End of quotation.
That being established, a sound woman is not married to a leper, nor to one afflicted with vitiligo or madness (as will come in the chapter of defects in marriage), and this is the preferred view. These attributes, namely religion, rank, free origin and trade except shepherding (raziyya), together with wealth, are not considered in the woman; for the child takes honor from the honor of his father, not from that of his mother; kafaa is therefore not a condition upon her for the man ("Matalib Uli an-Nuha", 5/86-87).
The Hanafis and the Hanbalis in the madhhab hold that freedom from defects is not among the conditions of kafaa. Ibn Qudama, may Allah have mercy on him, said: as for freedom from defects, it is not among the conditions of kafaa; there is no disagreement that marriage is not void by its absence, but it gives the option to the woman, not to the guardians, for its harm is specific to her; and her guardian is barred from marrying her to a leper, a man with vitiligo or a madman; anything beyond this is not taken into account in kafaa ("al-Mughni", 7/29).
Ibn al-Humam the Hanafi, may Allah have mercy on him, said: kafaa is not taken into account among us with regard to freedom from the defects that warrant rescission of a sale, such as leprosy, madness, vitiligo, putrefaction (bakhar) and foul smell (dafar) ("Sharh Fath al-Qadir", 3/295; "al-Bahr ar-Ra'iq", 3/143). Imam Ibn al-Qayyim, may Allah have mercy on him, maintained for his part that kafaa exists only in religion alone.
He said: what the ruling of the Prophet, peace and blessings be upon him, requires is that religion be taken into account in kafaa at the root and in perfection: a Muslim woman is not married to a disbeliever, nor a chaste woman to a debauchee. The Qur'an and the Sunna took nothing else into account in kafaa: he forbade the Muslim woman marriage to the foul fornicator, without considering lineage, craft, wealth or free origin; he permitted a slave to marry the free woman of noble origin and wealth, if she is chaste and Muslim; he permitted the non-Qurashis to marry Qurashi women, the non-Hashimis to marry Hashimi women, and the poor to marry women of means ("Zad al-Ma'ad", 5/159-160).
Kafaa, as stated, varies from one school to another. When it is absent in the case of those who stipulate it for the validity of marriage, namely the Hanbalis according to a narration preferred in the madhhab, the marriage is void or corrupt. As for those who do not take it into account for the validity of marriage, namely the majority, the Hanafis, the Malikis, the Shafi'is and the Hanbalis in the madhhab, they hold that kafaa is a right of the woman and of the guardians: it may be waived if all consent to its waiver, and the marriage is then valid.
They nevertheless differ in the case where the guardian consents to the absence of kafaa while the woman does not: may she dissolve the marriage? And in the case where the woman consents to a non-kufu' and marries him while the guardian does not consent: does he have the right to dissolve the marriage? Each school treats this in detail.
The Hanafis, according to the apparent transmissions (zahir ar-riwaya), say: if a woman marries herself to a non-kufu', the guardians may separate them, in order to ward off disgrace from themselves; for the right established for her differs from the right established for the guardians: hers is to protect her person from the humiliation of the marital bed, theirs is to protect their lineage from being allied by marriage to one who is not their equal; the one is not the other, so the waiver of the one does not entail the waiver of the other. Do you not see that the option may be established for her where it is not established for the guardians? It makes no difference whether the guardian is a relative of a prohibited degree or not, such as the cousin. This separation takes place only before the judge, for he exercises judgment in it.
The guardian's silence about demanding separation does not annul his right of dissolution, even if time extends until pregnancy; if she gives birth from him, they may no longer separate, so that the child may not be lost to the one raising him; for silence about an established right does not annul it, delay being possible until a moment when one chooses litigation. As long as the judge has not ruled between them, the rules of divorce, zihar, ila' and inheritance remain in force; and the separation is an annulment, not a divorce; for divorce is an act of disposal over the marriage, whereas this is an annulment striking at the root of the marriage.
If the husband has not consummated the marriage, she is entitled to nothing; if he has consummated, or has been alone with her in a valid seclusion, everything named [the dower] becomes due, together with the maintenance of the waiting period ('idda), and she observes the 'idda. If she married herself to a non-kufu' and her guardian equipped her and received her mahr, he loses the right of dissolution thereafter; for that constitutes ratification of the ruling of the contract, just as when he marries her and lets the husband have access to her: she then no longer has the right of dissolution.
If the woman married a non-kufu' and one of the guardians consents, that is permitted; one who is equal in guardianship or farther may not annul it, unless he is nearer: he may then demand separation before the judge, according to Abu Hanifa and Muhammad. Abu Yusuf said: if one of the two guardians consents to a non-kufu', the guardian who is his equal may refuse consent. If some of the guardians waive their right of kafaa, the right of the rest falls if the woman consents, according to Abu Hanifa and Muhammad; Abu Yusuf said: the right of the one who does not consent does not fall. Al-Hasan narrated from Abu Hanifa: if she marries a non-kufu', it is not permitted; it has been said: this is the fatwa position. Shams al-A'imma as-Sarakhsi said: it is more precautionary, for not every guardian pleads well before the judge, and not every judge is just; the more precautionary course is therefore to close this door. Ibn al-Humam said: according to the narration adopted for the fatwa, the contract is not valid at all if she married herself to a non-kufu'.
May the woman who married herself to a non-kufu' withhold herself from her husband? The chosen view of the jurist Abu al-Layth: yes. He says in "at-Tajnis": this, even though it runs against the apparent sense of the answer; for the woman's argument is: I married you only in the hope that the guardian would approve; perhaps he will not consent, and they will be separated; this intercourse would then have occurred under an ambiguous situation (shubha) ("Sharh Fath al-Qadir", 3/294; see "al-Mabsut", 5/26-27; "al-Hidaya", 1/201; "al-Ikhtiyar", 3/125; "al-'Inaya", 4/442; "al-Jawhara an-Nayyira", 4/305-306; "al-Lubab", 2/32).
The Malikis say: the woman and the guardian together may waive kafaa and marry her to a debauchee, a drunkard, from whom she is safe from harm; for the right of kafaa belongs to both of them; if they waive it and marry her to a debauchee, the marriage is valid according to the relied-upon view. If they do not consent together, the view of the one of the two who refuses is followed; and the judge prevents the one of the two who consents, including her, in order to preserve the right of Allah and protect lives. It has been said: marrying a woman to a debauchee is not valid and its annulment is obligatory; a group preferred this.
Ad-Dasuqi, may Allah have mercy on him, said: the gist of the issue is that the apparent sense of what al-Hattab transmitted, and others, and which the shaykh Ibn Rahal supported, is the prohibition of marrying her to a debauchee from the outset, even if she is safe from his harm, and the prohibition for her as for her guardian of consenting to it; this is the apparent sense, for mixing with a debauchee is forbidden and abandoning him is legally obligatory: how then the intimacy of marriage?
If the marriage takes place and he consummates with her, three views emerge on the contract:
Our shaykh established that the relied-upon view is validity, as promoted by al-Fakhani ("Hashiyat ad-Dasuqi with ash-Sharh al-Kabir", 3/58-59; "Hashiyat as-Sawi on ash-Sharh as-Saghir", 5/27; "Manh al-Jalil", 3/324).
Al-Hattab, may Allah have mercy on him, said: Ibn Bashir said: what is required of the husband is to be a kufu' in his religion, without disagreement; if he is a debauchee, there is an undisputed text that the father's marrying a woman to a debauchee is not valid, and likewise that of the other guardians; if it occurs, annulment is due to the wife and to whoever stands for her. Some of our shaykhs shunned issuing a fatwa on this, considering that it leads to the annulment of many marriages. Ibn 'Abd as-Salam said: the words of Ibn Bashir "even if it occurs" may be understood as referring to what is not disputed, and this is the apparent sense, or as opening a discussion and founding an issue, without touching on the denial of disagreement. End of the quotation from "at-Tawdih". This is not the apparent sense of his first statement: "there is no disagreement that it is not valid"; if it were so, it would be corrupt.
Ibn Salmun said: Ibn Bashir said: there is no disputed text: the wife and whoever stands for her have the right to annul the marriage of a debauchee. Ibn Zarb was asked about a woman whose guardian married her to a man of notorious evil and corruption; her guardians objected and sought the annulment, although he had consummated the marriage. He said: there is no way to dissolve the marriage if he has consummated. He was told: and if he had not? He paused, then said: what admits no doubt is that if he has consummated, the marriage is not annulled; kafaa is a right of the wife and of the guardians: if they waive it, it is permitted.
It is recorded from Asbagh in "an-Nawadir" that if a father marries his virgin daughter to a drunkard and debauchee from whom she is not safe, it is not permitted; the imam is to send him back, even if she consents to him. Ibn Abi Zamanin transmitted from certain trustworthy jurists that kafaa must be established for the previously married woman (thayyib) just as for the virgin; Ibn Fathun reports it from him, and reports that the judge Abu al-Walid adopted this view and required kafaa to be established before him, saying: if she owns herself, when she calls to a non-kufu', I am not obliged to assist her in it. End. In the ahkam of Ibn Sahl are mentioned the fatwa of Ibn Zarb, dated Safar of the year 377, and the statement of Asbagh in "an-Nawadir", with an appendix on the matter of the testator and the like. End.
In the "Tafsir" of al-Qurtubi, at the beginning of Surah an-Nur, Ibn Khwayiz Mandadh said: whoever is known for fornication or any other manifest sin, and marries into a household of honor while deceiving them about himself, they have the option of remaining with him or parting from him; this resembles a defect. He argued by the word of the Prophet, peace and blessings be upon him:
"The flogged fornicator marries only his like."Authentic hadith, reported by Abu Dawud (2052) and al-Hakim in al-Mustadrak (2700)
Ibn Khwayiz Mandadh said: he mentioned the flogged one on account of the notoriety of his debauchery; he is the one who must be parted from others; as for one whose debauchery is not notorious, no. End.
In "al-Masail al-Maqlyta", Ibn Bashir said: there is no disputed text: the wife and whoever stands for her may annul the marriage of a debauchee, the debauchee meaning by his deeds; the father's marrying a woman to a debauchee is therefore not valid, nor that of the other guardians. In "at-Tabsira": if his earnings are unlawful, or he swears many oaths of divorce, the father may not marry his daughter to him; for such a man generally persists in baseness and perseverance in sin; if he does so, the authority separates them; the drunkard is barred from marrying her, for he calls her to drink. End of the quotation from "Tashil al-Ummahat".
Ibn al-Hajib said: al-Fakhani, in his commentary on the words of the Risala "let no one propose over his brother's proposal", mentioned that when the debauchee proposes, she inclines toward him; yet the upright man is entitled to propose, and has greater right. I say: this can only be understood on one of the two views, namely that the marriage of a debauchee is valid, which is the famous view; otherwise, if the other view were adopted, what befits between the two is the emphatic superlative form (af'al). Allah knows best. This concerns the debauchee in his deeds; as for the debauchee in belief, Ibn al-Hajib said: Malik does not marry to the Qadarites, nor are they married. Ibn 'Abd as-Salam said: it is annulled.
In "at-Tawdih": this is Malik's view in "al-Mudawwana", and it does not come about; here the earlier shaykh paused concerning the debauchee in his deeds, for it leads to the annulment of many marriages, and whoever equals the Qadarite in innovation shares his case. End. In "al-Masail al-Maqlyta": Malik said: women are not married to the Qadarites, meaning that a marriage concluded between the people of the Sunna and them is annulled; this is on the view of their disbelief; on the view that they are debauchees, they resemble the debauchee in his deeds and more gravely still, for he drags the woman toward his belief and school; no one is married from them, nor are they married to the women of the people of the Sunna. Malik's view concerning the Qadarites extends to whoever equals them in innovation. In some narrations, Malik recited the word of Allah:
"And a believing slave is better than a polytheist"
Surah Al-Baqarah, 2:221
and this indicates that he intended their disbelief. End, from "Tashil al-Ummahat".
Note: Ibn Farhun says in his "Tabsira", in the chapter explaining what requires the ruling of the authority and what does not: among the divorces that the authority enacts without the woman's authorization, even if she detests their enactment, is her marriage to a debauchee. End, in substance. Its apparent sense: this applies to the debauchee in his deeds as in his belief; and the apparent sense of their words is that the marriage is annulled in every case, after or before consummation. The apparent sense of Ibn Farhun's words is therefore that the marriage is annulled by divorce, for he ranked it among the divorces enacted by the authority. Allah knows best ("Mawahib al-Jalil", 5/103, 105).
The Shafi'is say: kafaa is a right of the woman and of the guardian, whether the guardian is one person or a group of equal rank; the consent of all the guardians is required when she consents to a non-kufu', not that of a single one; for they have a right in kafaa, and their consent to its waiver is like that of the woman. This differs from the case where one of them marries her to a kufu' without a mahr like hers, with her consent but without theirs: the marriage is then valid, for they have no right over the mahr, nor is any honor at stake. If the nearest guardian marries her to a non-kufu' with her consent, the farther guardians may not object; he then no longer has any right in the marriage.
If the father or the grandfather marries by compulsion the virgin, whether a minor or an adult, or the previously married woman with her permission, in absolute terms without restriction to a kufu' or otherwise, to a non-kufu', the marriage is not valid, for she does not consent to it. The marriage is void according to the most apparent view, for it runs against satisfaction (ghibta): just as the guardian of property may not dispose of it without the owner's satisfaction, the guardian of the body deserves this all the more. Against the most apparent view: the marriage is valid; the adult woman has the option at once, the young girl upon puberty. The disagreement extends to the marriage conducted by the one who does not use compulsion, if she authorizes the marriage in absolute terms, without restriction to a kufu' or otherwise. An exception to the foregoing is the case where the absence of kafaa lies in incontinence or impotence: her marriage to the man with hypospadias or the impotent man is valid with her consent, even if the guardian refuses.
If the woman who has no specific guardian asks the ruler or his deputy to marry her to a non-kufu', and he does so, the marriage is not valid according to the soundest opinion; for he is the deputy of the Muslims, who have a share in kafaa. Against the soundest opinion: the marriage is valid, like that of the specific guardian; but if the ruler marries her during the guardian's absence or delay, she may be married only to a kufu', definitively. If she has a guardian but the ruler marries her because of his absence, his delay or his interdiction, she may be married only to a kufu', definitively; for he is his deputy in the act, which is not valid without his authorization. If the guardian is present but prevented by some cause, such as debauchery or the like, and there is none after him but the ruler, who marries her to a non-kufu' with her consent, the apparent sense of their words, taken in absolute terms, rejects both views ("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 in the madhhab say: kafaa in marriage is a right of the woman and of all the guardians, near and far, down to those who come after the contract; for they are equal in the disgrace brought by the absence of kafaa. If the woman is married to a non-kufu', she may annul the marriage even after a long time; for it is a deficiency in the object of the contract, resembling the option for defect, so long as she has not consented by word or deed, such as letting him have access to her while knowing he is not a kufu'. Likewise her guardians may annul it, by virtue of their equality in disgrace. If the woman consents, or some of them consent, the annulment belongs to the one who did not consent: the farthest disposes of it with the consent of the nearest, for the marriage is not voided by the absence of kafaa, and the disgrace reaches every one of them.
If the father marries his daughter to a non-kufu' with her consent, the brothers may annul it explicitly; for the disgrace of marrying a non-kufu' reaches every one of them. If kafaa ceases after the contract, annulment belongs to the wife alone, not to her guardians, like her manumission from under a slave; for the right of the guardians lies at the start of the contract, not in its continuation. According to the other narration, the woman's marriage to a non-kufu' is void, it is not valid ("Kashshaf al-Qina'", 5/72-73; "Sharh Muntaha al-Iradat", 5/151; "Matalib Uli an-Nuha", 5/84; "Manar as-Sabil", 2/567).
The Shafi'is say: if a woman seeks marriage with a man and claims his kafaa, and the guardian denies it, the matter is referred to the judge: if his kafaa is established, he is compelled to marry her; if he refuses, the judge marries her to him; if his kafaa is not established, he is not compelled to marry her ("Rawdat at-Talibin", 4/722-723; "Asna al-Matalib", 3/140; "Mughni al-Muhtaj", 4/257).
If she married a non-kufu' and he then divorced her, may she marry him again without the consent of the guardians? The Hanafis say: the guardian's objection is renewed with the new marriage, just as if the guardian had married her with her consent to a non-kufu' who divorced her and she then married herself to him a second time: that guardian may separate them; for the first consent is not a consent to the second; for a man may well turn back from a base companionship. But if he divorced her revocably and took her back during the 'idda, the guardian may not object. Likewise if he married her himself to a non-kufu' who divorced her and she then married another non-kufu': he may object ("Sharh Fath al-Qadir", 3/294; "al-Jawhara an-Nayyira", 4/306; "Hashiyat Ibn 'Abidin", 3/56).
The Malikis say: a guardian who consented to marrying his ward to a non-kufu' and married her to him, whereupon the husband divorced her, irrevocably or revocably, her 'idda expired and he wishes to marry her while she consents to him: the guardian who married her the first time may not object to her marrying him again, provided no new defect has arisen in the husband after the first marriage warranting objection; for his right of kafaa lapsed through his first consent. If he objects, he is deemed an obstructionist ('adil). But if a defect has arisen, he may object on account of the new circumstance. If the divorce is revocable and the 'idda has not expired, she remains a wife: no word for her nor for her guardian ("at-Taj wa-al-Iklil", 2/529; "ash-Sharh al-Kabir with the hashiya of ad-Dasuqi", 3/59; "Hashiyat as-Sawi on ash-Sharh as-Saghir", 5/27; "Manh al-Jalil", 3/324; "Tahrir al-Mukhtasar", 2/599).
The Shafi'is say: if the guardians consented to marrying her to a non-kufu', then the husband released her by khul' (mukhala'a), and then one of them married her to him with her consent without the consent of the others, the marriage is valid; this is the exposition of the statement in the "Rawda", and Ibn al-Muqri affirmed it definitively, for they consented to him the first time; the author of the "Anwar" differed on this point. As for the meaning of the mutakhali', the one who divorced by mukhala'a, he resembles the one who annuls, the one who divorces revocably and takes back his wife after separation, and the one who divorces before consummation ("Asna al-Matalib", 3/139; "Mughni al-Muhtaj", 4/274; "Tuhfat al-Muhtaj", 8/646; "Nihayat al-Muhtaj", 6/294).
The Shafi'is also say: if the woman is in a situation where no kufu' can be found for her at all, the guardian may marry her to a non-kufu' out of necessity ("Hashiyat ar-Ramli on Asna al-Matalib", 3/137).
The mother's objection to her daughter's marriage
The Malikis say: if the father wants to marry his wealthy, sought-after daughter to his poor nephew or to another, the mother may voice her objection and refer the matter to the authority, so that it may examine what the father intends: is it proper or not? Whether the mother is divorced or still married. The equivalent of the poor man is whoever removes her from her mother by a distance of five days' journey.
The text of the "Mudawwana": a divorced woman came to Malik and said: I have a daughter in my custody, wealthy and sought after; her father wants to marry her to his poor nephew (in the "Ummahat": destitute, without property). Do you see that I may object? Malik said: yes, I see that you may object. The "Mudawwana" is also transmitted in a negative version, that is: I do not see that you may object. The correct version is the first; for she asked whether she might object and he said yes, then he repeated that he saw she had grounds to object; whoever transmits "so I do not see", in the negative version, stands in contradiction with his earlier word "yes": the meaning becomes muddled and one part of his statement cancels another.
Ibn al-Qasim then said: I hold that it stands, except in the case of evident harm: she then has the right to object. Ibn al-Qasim's statement was disputed: is it in opposition to Malik's word or in agreement? Some understood it as an opposition, and this is the madhhab of Suhnun, saying: I speak according to the word of Ibn al-Qasim, and he means by harm bodily harm, not poverty. Others said: it is an agreement; Ibn al-Qasim may not have objected to glaring, harmful poverty, but to the nephew's being poor relative to her wealth, given the breadth of her situation and the abundance of her comfort; or Ibn al-Qasim objected with regard to what comes after consummation, whereas Malik objected before it; he said she had grounds for objection, without saying that the marriage is annulled ("at-Taj wa-al-Iklil", 2/526-527; "Mawahib al-Jalil", 5/105-106; "Sharh Mukhtasar Khalil", 3/206; "ash-Sharh al-Kabir with the hashiya of ad-Dasuqi", 3/59-60; "Hashiyat as-Sawi", 5/29; "Tahrir al-Mukhtasar", 2/599-600).