Islamic Fiqh > Marriage and family > Wilaya (marital guardianship) and kafa'a > The wali: pillar or condition of marriage?
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Updated on 27 September 2026 at 3:52 AM
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The leaves on this page deal with the wali, the marriage guardian who concludes the nikah (the marriage contract) on behalf of the woman: his place in the contract (pillar, condition of validity or mere recommendation), the causes that establish his wilaya (guardianship), and the order in which the guardians succeed one another. Every opinion is reported as the leaf reports it, including the internal Hanafi differences between Abu Yusuf and Muhammad ibn al-Hasan.
Technical terms: jabr, the power to marry off without asking; kafa'a, marital equivalence; 'adl, the guardian's unjustified refusal; asaba, the relatives who inherit by ta'sib (on the father's side); thayyib, a previously married woman; bikr, a virgin; ayyim, a person who has no spouse.
The jurists differed over the wali: is he a pillar (rukn) of the nikah? A condition of its validity, without which it is not concluded? Or can a woman marry without her wali's authorization, concluding the contract herself or deputizing someone?
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis in the madhhab, plus an opinion reported from Muhammad ibn al-Hasan, hold that the nikah is not concluded without a wali: the woman does not conclude for herself or for others, whether a virgin or previously married. They rely on the Quran and the Sunna. Among the verses:
Do not prevent them from remarrying their husbands if they agree together on the proper way.
Sura al-Baqara, 232
The verse establishes the wilaya from two angles. First the 'adl: preventing remarriage. Allah forbade the guardians to hold the women back, as He forbade the guardians of orphans to hold them back out of greed; if women could conclude contracts themselves, the guardians' obstruction would not be a 'adl and the prohibition would not address them. Second, the revelation of the verse: Ma'qil ibn Yasar had refused to remarry his sister to her first husband, and the verse came down; the Prophet summoned him and he married her to him.
I had married my sister to a man, then he divorced her. When her 'idda had elapsed, he came asking for her hand. I said to him: I married you and honored you, then you divorced her, and now you come asking for her again? No, by Allah, she will never return to you.
He was a blameless man, and the woman wanted to return to him. Then Allah sent down this verse. I said: now I will do it, O Messenger of Allah. So he married her to him.
related by al-Bukhari (4837)
Allah rebuked Ma'qil for preventing his sister from returning to her husband; had she been able to marry herself, her brother would not have been rebuked, nor would the Prophet have ordered him to return her: the contract therefore belonged to the guardian, not to her. Al-Shafi'i comments in al-Umm (5/12) that this verse establishes the wali's right over the woman and the duty not to hold her back when she consents in the proper way, the Sunna confirming the Book.
Marry them with the permission of their families.
Sura an-Nisa, 25
That is, with the permission of their guardians: the guardians' permission is a condition of the nikah, hence its invalidity in their absence.
Marry the unmarried among you.
Sura an-Nur, 32
The address does not reach the women: had they the right to conclude, they would have been mentioned.
And do not marry polytheists until they believe.
Sura al-Baqara, 221
The verse addresses the guardians and forbids them to marry their Muslim wards to polytheists.
As for the Sunna, this hadith reported by a great number of Companions:
There is no marriage without a wali.
sahih hadith, related by Abu Dawud (2085), at-Tirmidhi (1101), Ibn Majah (1880) and Ahmad (19761)
It is a negation of reality: no valid marriage exists without a wali, which gives the wali a right in the contract, a right others do not have. Its scope is general: young or old, noble or humble, virgin or previously married.
Any woman who marries without the consent of her guardians, her marriage is void, three times. If he has consummated the marriage, she is entitled to the dower in return for what he has consumed of her. If they dispute, the sultan is the wali of the one who has no wali.
sahih hadith, related by Abu Dawud (2083), at-Tirmidhi (1102), Ahmad (25365) and Ibn Hibban (4074)
An explicit text on the invalidity of marriage without a wali, without restriction or distinction. At-Tabari derives from it the invalidity of the view of whoever allows the adult, self-possessed woman to marry without her wali: the Prophet, when Hafsa was widowed, did not leave her affair to herself but proposed to her father, then married her to Umar. As for the hadith "the woman without a husband has more right to herself than her wali", its meaning is that she has more right to herself in this: that no one marries her without her consent, not that she concludes the contract herself without a wali.
A woman does not arrange the marriage of another woman, and a woman does not arrange her own marriage: the fornicator is the one who arranges her own marriage.
sahih without the last phrase, related by Ibn Majah (1882), ad-Daruqutni (3535) and al-Bayhaqi (14005)
Al-Bukhari relates from Aisha that marriage in the Jahiliyya followed four ways, among them the marriage of people today: the man asks a man for the hand of his ward or daughter, pays the dower and marries her (4834), proof that the sunna of the contract is that it belongs to the guardians. Aisha also said, after having a marriage concluded by a man, that women have no share in concluding the nikah (related by at-Tahawi in Sharh Ma'ani al-Athar, 3/10). And 'Ikrima relates that a traveler entrusted her affair to a man who was not her wali and he married her; Umar flogged the husband and the one who concluded the contract and annulled their marriage (related by Abd al-Razzaq (10486) and al-Bayhaqi (13417), a weak hadith).
Arguments by analogy are added, all listed by the leaf: the contract that turns the woman into a wife does not belong to the one who is its object, like the slave girl; anything added to the contract is a condition, like the witnesses; the wali has two rights over the girl before puberty, demanding equivalence and concluding the contract, and if puberty does not remove his right to equivalence it does not remove his right to conclude; she is deficient through her femininity like the slave girl, and delegated in marriage like the minor; her nature drives her to marriage and toward men: if contracts were entrusted to her she would rush in without weighing equivalence or outcome, harming herself and her guardians; finally she cannot be trusted over her chastity, because of the weakness of her judgment and how quickly she is deceived, like the squanderer with his wealth: she is thus protected from what would reveal her wantonness, contrary to the state of people of modesty and noble conduct.
Malik, however, admits an exception: the freed woman of humble condition, or one living in a village without authority, may appoint a man to marry her. Ibn al-Qasim reports this rule from him, while the narration of Ashhab makes no difference between women of rank and others. Ibn Abd al-Barr sums up: Malik's doctrine is indeed "no marriage without a wali".
On the other side, Abu Hanifa, Zufar and al-Hasan (al-Basri), this position also being the apparent content (zahir al-riwaya) of the doctrine of Abu Yusuf, plus Ahmad in a narration, hold that the adult, sane woman may marry without a wali, virgin or previously married, even without equivalence according to the apparent content (one view then says it is not permitted without equivalence, and another that the fatwa is given on that point), on the basis of the hadith of Ibn Abbas:
The woman without a husband has more right to herself than her wali, and the virgin is consulted about herself, and her consent is her silence.
related by Muslim (1421)
The woman without a husband (ayyim) means any woman who has no husband, whether she has married before or not. Al-Nawawi reports the scholars' debate over the term: the jurists of the Hijaz take it for the previously married woman, the hadith being explained so in another version and the term used mostly for her; the Kufans and Zufar take it for any woman without a husband, as language requires: every adult woman has more right to herself than her wali and her contract is valid; this is also the view of al-Sha'bi and al-Zuhri, for whom the wali is not a pillar of validity but of completion; al-Awza'i, Abu Yusuf and Muhammad make validity depend on the wali's approval. The words "more right" indicate sharing: the woman has a right in her marriage and her wali has one too, but her right is stronger: if he wants to marry her to an equivalent and she refuses, she is not compelled; if she wants an equivalent and the wali refuses, he is compelled, and if he insists, the judge marries her.
The Hanafis also cite: the verse about the woman who gives herself to the Prophet (Sura al-Ahzab, 50), an explicit text of a contract by her own words; "until she marries another husband":
Until she marries another husband.
Sura al-Baqara, 230
Marriage is there attributed to the woman, and the end of the prohibition is placed at her own remarriage; likewise "so that they come back together" in the same verse, where marriage is attributed to the two spouses without mention of the wali; and "do not prevent them from remarrying" (Sura al-Baqara, 232), which attributes marriage to the women and forbids the guardians to obstruct; finally "no blame shall attach to them for what they do with themselves in a proper way" (Sura al-Baqara, 234), as "in a proper way" (Sura al-Baqara, 240), where the action is attributed to them exclusively: marrying herself to an equivalent with the equivalent dower, she deals with herself in the proper way.
As for the hadiths: that of the girl who said "I approved what my father did, but I wanted the women to know that fathers have no say" shows that the father's power is only a recommendation (related by Ahmad (25043), an-Nasa'i (3269) and others, a weak hadith); that of Khansa bint Khidham whose father married her while she was a widow, and the Prophet annulled the marriage (al-Bukhari, 4845); and that of Ibn Abbas:
The guardian has no say over the previously married woman; the orphan is consulted, and her silence is her consent.
sahih hadith, related by Abu Dawud (2100), an-Nasa'i (3263), Ahmad (3087) and Ibn Hibban (4089)
Once the woman is adult and free, she becomes her own waliyya in marriage, like the boy who reaches majority: the wilaya was only a delegation imposed by necessity (the minor's incapacity), and it falls away with it; freedom moreover is incompatible with establishing one free person's guardianship over another, except by necessity.
As for the verses invoked by the majority, the Hanafis answer that the address to the guardians indicates custom and recommendation, not obligation: women do not normally conclude, because they would have to go into gatherings of men, which exposes them to criticism; the hadith "only the guardians marry off the women" is therefore understood as recommendation. Abu Yusuf and Muhammad, in his second view, hold that the contract of the free, adult, sane woman who marries herself or deputizes a man, or whom an unauthorized interloper (fuduli) marries, remains suspended on the approval of the wali or the judge: the husband may not consummate before the approval, and if he does his consummation is unlawful; he has over her neither divorce nor ihlal nor zhihar; if one dies, the other does not inherit, whether she married an equivalent or not.
If she married an equivalent and the wali refuses, she raises the matter to the judge: Abu Yusuf has the judge approve the contract, while Muhammad orders the contract to be renewed, the first being void from the origin because it hung on a refused approval. Hisham reports from Muhammad that if the wali refuses, he (the judge) approves it: Muhammad had two views, and he is reported to have returned to the view of Abu Hanifa seven days before his death. Abu Ja'far al-Hinduwani reports that a woman came to Muhammad three days before his death complaining of a wali who demanded money before marrying her: "go and marry yourself", which confirms that return.
The view of Abu Yusuf is explained: by refusing, the wali becomes an unjustified refuser ('adil), for he has no right to refuse when she has married an equivalent; he therefore loses the wilaya to the judge. Muhammad is also reported to have said that if the woman has a wali her marriage requires his authorization, and that without a wali she may marry herself: the right was the wali's, not hers; without a wali the right is hers alone and her contract takes effect. Another narration from Abu Yusuf lets the contract take effect at the equivalent: the guardians' right is to protect the family's honor from a suitor who does not give the alliance in return; that meaning disappears with the equivalent, and if she finds an equivalent the mawla no longer may refuse, on pain of becoming an unjustified refuser: her contract then stands like the contract of the wali himself.
Ibn Rushd then sums up the debate: Malik holds it a condition of validity in the narration of Ashhab, and that is the view of al-Shafi'i; Abu Hanifa, Zufar, al-Sha'bi and al-Zuhri validate the woman's contract without a wali when the husband is an equivalent; Dawud (al-Zahiri) distinguishes the virgin, whose marriage requires the wali, from the previously married woman, whose marriage does not; a fourth view is inferred from the narration of Ibn al-Qasim from Malik: the existence of the wali is a sunna (a recommendation), not an obligation. The cause of the disagreement, he says, is that no verse or hadith is explicit on obligating the wali, and all the proofs of both parties are interpretable, except the hadith of Ibn Abbas; the one who removes the wali has no binding proof, the origin being innocence of liability.
He then examines the proofs: the verse of Sura al-Baqara 232 only forbids the woman's relatives to obstruct marriage, and one may understand from it the opposite, namely that the guardians have no hold over their wards; Sura al-Baqara 221 is rather an address to the holders of authority or to all Muslims than to the guardians, and its aim is to forbid marriage to polytheists; the hadith of Aisha is disputed as to the obligation of acting on it (it is not unanimously sahih), and even if sahih it does not establish that the woman does not conclude the contract, only the wali's authorization when he exists; the address of Suras al-Baqara 234 and 240 rather favors conclusion by the woman; the hadith of Ibn Abbas is, in his view, explicit on the distinction between the previously married woman and the virgin.
He concludes: had the Lawgiver wanted to obligate the wali, he would have specified the kinds, qualities and ranks of the guardians, and that specification would have been transmitted en masse; which allows one to believe either that the wilaya is not a condition of validity and the guardians hold only hisba (the right of oversight), or that if it is a condition, distinguishing ranks is no part of validity: which weakens the position of whoever invalidates the contract of the most distant guardian while the nearest is present. (al-Umm 5/12, Bidayat al-Mujtahid 2/6 and 9, al-Muhadhdhab 2/35, al-Mughni 7/5-7, Rawdat al-Talibin 4/688-689, Kashshaf al-Qina' 5/50-51, Sharh al-Zarkashi 2/318-319, hashiyat al-Sawi 4/430, Mawahib al-Jalil 5/48, al-InSaf 8/66, Manar al-Sabil 2/558-559)
What is the ruling of a judge who validates a nikah concluded without a wali? Abu Sa'id al-Istakhri, among the Shafi'is, and the Hanbalis in one view, hold that the ruling is reversed, being contrary to the text of the hadith of Aisha. The Shafi'is, on the sahih of their school, and the Hanbalis in the madhhab, validate it: the question is disputed among scholars and ijtihad is permitted in it, so the ruling is not reversed, as with the ruling granting preemption to the neighbor; as for the hadith, it is not an explicit text since it is interpretable, its authenticity is disputed and apparent texts contradict it, as with all invalid marriages according to the Hanbalis. If the husband consummated before the ruling of validity, no legal punishment (hadd) is due from him.
(al-Muhadhdhab 2/35, al-Bayan 9/157-158, al-Mughni 7/6-7, al-Fur' 5/130-131, Kashshaf al-Qina' 5/51, Mutalib Uli al-Nuha 5/59)
Al-Mawardi first cites from al-Shafi'i the report of Umar: a caravan included travelers among them a previously married woman; she delegated her affair to one of their men and he married her; Umar flogged the husband and the one who concluded the contract and annulled their marriage. He then sets out the ruling given by a Shafi'i or a Hanafi judge. The Shafi'i judge who annuls and separates the spouses, then sees them reunite, applies the legal punishment: the doubt of the contract has been removed by his ruling of separation. A Hanafi judge then seized of the matter cannot validate it, the annulment ruling having taken effect.
If the first ruling is that of a Hanafi judge who validates and permits the union, there is no punishment, the authorization ruling having taken effect; if the matter then comes up before a Shafi'i judge, two views: he annuls and reverses, since that contradicts the text "her marriage is void, three times"; or he cannot reverse a ruling made by ijtihad, the hadith being a report from a single Companion.
If the spouses have not taken the dispute before a judge: if they separated without uniting, no 'idda is due from her, no dower, no inheritance; if they united, three cases. They believe the marriage permitted, following Abu Hanifa: no punishment, for it is permitted by justifiable ijtihad; one objects with the case of the man who drinks nabidh believing it permitted and is punished; the answer rests on two differences: the doubt of marriage without a wali is stronger, for it wavers between two roots of prohibition (fornication and marriage) whereas the doubt of nabidh goes back to only one (wine); and marriage without a wali has a valid path through the wali, so the prohibition was content with a mere warning, whereas nabidh has no valid path and received a stronger deterrent.
They believe the marriage forbidden, following al-Shafi'i: contact is forbidden to them; if they unite and he consummates, the doctrine of al-Shafi'i and the majority of jurists imposes no punishment; Abu Bakr al-Sayrafi, with him al-Zuhri and Abu Thawr, makes it obligatory, on the report of Ibn Abbas that the Prophet said: "the fornicator is the woman who marries without a wali", and on the report of Umar who flogged the two men. The proof that the punishment falls away is that the hadith fixes the invalidity of the marriage and the dower, without the punishment: "ward off the legal punishments by doubts", and the strongest doubt is a contract disputed among the jurists. As for "the fornicator", she does not become one through marriage by consensus; whoever obliges the punishment says she becomes one through consummation, and the wording is understood as attributing some rules of fornication, like the hadith "whoever abandons the prayer has disbelieved".
Finally, if they are ignorant of the ruling: no punishment either, ignorance of the prohibition being the strongest doubt; one does not punish whoever was ignorant of the prohibition of fornication because of his recent Islam, and Umar said of a slave woman who confessed fornication with such ignorance: "I see her testifying as if she did not know; the punishment is only for the one who knows. The effects of the marriage then attach as for a valid marriage, except the punishment: the 'idda is due, descent attaches, the prohibition by affinity is established; on the attachment of the mahram there are two views: it attaches like the prohibition by affinity, so that the woman is not veiled before the husband's father and son, nor he before the wife's mother and daughter; or it does not attach, the prohibition by affinity having been established in the strong sense (taghliz), which excludes the mahram in the same way.
The causes of wilaya in the nikah are five: kinship (qaraba), ownership (milk), wala' (the patronage of manumission), wasiyya (the testament) and imama (authority).
On kinship there is no disagreement: it stirs compassion, which leads to looking into the right of the one under guardianship. (al-Istidhkar 5/415, Bada'i' al-Sana'i' 2/237, hashiyat al-Sawi 4/430-431, al-Bayan 9/186-217, Rawdat al-Talibin 4/698-701, al-Mughni 7/43, Kashshaf al-Qina' 5/56-60)
Ownership: the master is wali of his male or female slave. The slave himself has no wilaya, since he is owned. On the female slave there is no disagreement: the master may compel her to marry, minor or adult, previously married or virgin, even if her father exists, for she is part of his property which he may develop as he wills.
On the male slave there are two positions. The Malikis, Abu Hanifa according to the apparent content of the doctrine, and al-Shafi'i in the old, give the master the right to compel him: Allah ordered the masters to marry the slaves without any condition of consent (Sura an-Nur, 32); the slave's marriage is an act of the master over his own patrimony, for the child of his slave woman's marriage belongs to him, as does the child of the slave upon his slave woman, and warding off fornication preserves the slave's value; whoever acts over his own property for his own benefit, the act takes effect without the consent of the one who is its object, as in sale and hire. Abu Hanifa in another narration, the Shafi'is in the madhhab and the Hanbalis require his consent: the pleasures of the slave's member do not enter the master's property; the compelled marriage does not produce the aims sought since it does not last, the slave being able to undo it by divorce; the slave is accountable and owns divorce like the free man; the verse ties marriage to the request.
For the minor or insane slave, the majority of the schools (Hanafi, Maliki, Shafi'i on the sounder view, Hanbali) give the master the right to compel him, since he compels his minor son and the slave is part of his property; among the Shafi'is one view compares him to the adult (two views). (Bada'i' al-Sana'i' 2/237-238)
On both views, the slave cannot marry himself without his master's consent:
Any slave who marries without his master's consent is a fornicator.
related by Jabir, a hasan sahih hadith according to at-Tirmidhi (1112)
The name of slave covers males and females. Ibn Abd al-Barr adds: the scholars agreed that the slave's marriage without his master's consent is not concluded. (al-Istidhkar 5/415, al-Ishraf on the questions of disagreement 3/298-299 no. 1132)
Wala' is flesh like the flesh of lineage: it is neither sold nor given.
related by Ibn Umar, related by Ibn Hibban in his Sahih (4950)
Al-Mawardi cites al-Shafi'i: "no wilaya after lineage except for the one who manumits, then the closest of the manumitter's asaba." He approves it: the freed man, the mawla, stands in the place of the asaba when they do not exist, for the Prophet said that wala' is flesh like the flesh of lineage, as in the hadith of marriage without the guardians' consent; manumission gave the woman what free birth gives: ownership of herself, inheritance given and received. Then the manumitter's asaba take the wilaya of her marriage in the order of their wala' and inheritance: the mawla's son and his descendants before the father, then the father and the rest. (al-Hawi al-Kabir 9/97)
Al-Kasani treats wala' like kinship: two kinds, the wala' of manumission and the wala' of alliance (muwalat). The wala' of manumission is, with Abu Hanifa, a wilaya of obligation and recommendation, and, with Muhammad, a wilaya of exclusive or shared ownership, as was explained for the wilaya of kinship; its condition is the absence of asaba through kinship, the mawla of manumission being the last of the asaba; he marries the freed woman or the freed man, male or female alike. The mawla of alliance has, with Abu Hanifa, the wilaya of marriage when all the other conditions come together and all the heirs are absent, for he is the last of the heirs; with Abu Yusuf and Muhammad he has no wilaya of marriage at all, ta'sib being in their view a condition that does not exist here. (Bada'i' al-Sana'i' 2/252)
Ibn Qudama: when the kinship asaba die out, the woman has as wali the one who freed her, then his nearest asaba. Two conditions: the absence of asaba through kinship, who are closer and more entitled; and the wife's consent, for she is free and cannot be compelled by him, he being the farthest of the asaba; he does not however need the consent of her guardian, for she has neither wilaya nor ownership. (al-Mughni 7/19, al-Kafi 3/12)
Ibn al-Qattan al-Fasi: the freed woman who has asaba is married off by her wali among them; without asaba, the one who freed her marries her off, with no disagreement among the scholars. (al-Iqn' fi Masa'il al-Ijm' 3/1164, no. 2137)
The father's testament: among the Malikis and the Hanbalis in the madhhab, the father's testamentary appointee (wasiyy) receives the wilaya. The Malikis specify: at the father's absence, and he has the jabr in what the father has the jabr in. If the father named the husband ("marry her to so-and-so"), the wasiyy may compel only for that husband, with the equivalent dower (mahr al-mithl), unlike the father who compels without limit. If the father ordered him to compel, even conditionally ("marry her before and after puberty, in whatever state you wish"), he has the jabr.
If he ordered him to marry her without naming the husband or the jabr ("marry her to whomever you like, to whomever you approve"), he also has the jabr; the reverse formula ("you are my wasiyy over my daughter, my daughters, over her private parts or theirs") carries the jabr only on the more probable view for some, while others say the transmission rather suggests the absence of jabr, Abu al-Hasan contrasting "my wasiyy only, or my wasiyy over my daughters' private parts, or over marrying them", where there is no jabr; the analogy says he marries her only after puberty, others say he has the jabr.
In sum: "you are my wasiyy over my daughters' private parts, over their nikah, over marrying them, marry her to whomever you wish" gives the jabr on the more probable view; without mention of marriage ("over my daughters, over such a daughter"), the more probable view is the absence of jabr; "you are my wasiyy only, over my property, over selling my estate, over collecting my debt": no jabr by agreement; if he married without jabr in these forms, al-Jawhari accepts the contract, al-Nafrawi suspends; married without jabr: valid without disagreement. (hashiyat al-Sawi on al-Sharh al-Saghir 4/438-439, al-Istidhkar 5/393)
Al-Qadi Abd al-Wahhab: the father's testament to marry the virgin is valid and the wasiyy contracts with her consent, contrary to Abu Hanifa and al-Shafi'i, on the hadith of Qudama ibn Maz'un who said: "I am her uncle and her wasiyy", and to whom the Prophet answered:
She is an orphan: she is only married with her consent.
related by ad-Daruqutni in his Sunan (3546)
The long version of the report tells that Qudama had married the daughter of his brother Uthman, that Mughira ibn Shu'ba wanted her, and that the Prophet removed her from Qudama's hand saying the orphan is most entitled in her own affair, then married her to Mughira. The Prophet did not contest the wasiyy's power: he grounded the refusal in the woman's state (her orphanhood), and the wilaya had been the father's during his life, which he could transfer like the wilaya of property, or delegate like an agent.
The Hanbalis: the wasiyy of every guardian stands in his guardian's place, since he replaces him: the wilaya of marriage is derived from the testament when it mentions marriage, whether the guardian has the jabr (the father) or not (the paternal brother, the uncle, his son); the wilaya being established, the bequest holds like the wilaya of property, and the guardian may already delegate during his life, so after his death. The formula: "I bequeath to you the nikah of my daughters, or I make you wasiyy over the nikah of my daughters", as one says of property "I bequeath to you the oversight of my children's property". The wasiyy stands in the testator's place and precedes those the testator precedes: the father's wasiyy compels those the father compels, males and females; if the guardian is not one who compels (the father of a thayyib of nine full years, the brother, the uncle), his wasiyy likewise needs her consent, like his agent; and the one the wasiyy married has no option right (khiyar) at puberty, male or female, since the wasiyy replaces the testator like the agent.
As for the wasiyy of property, he may marry the slave woman of the property he manages, for she is part of it; if he was charged with the affairs of the minor children, he cannot marry them; it is also said that he has no jabr and marries only the one who consents. From Ahmad again: the wilaya of marriage is not derived from the wasiyya, for it is a wilaya that has its rightful holders: it is not transferred, like custody (hadana); and another report: it is not derived if the testator has asaba, but valid otherwise. (al-Mughni 7/39, al-Kafi 2/477-478, al-Mubdi' 7/40, al-InSaf 8/85-86, Kashshaf al-Qina' 5/62-63, Manar al-Sabil 2/562)
Ibn Qudama again: the narrations from Ahmad are divided; one derives the wilaya from the wasiyya, the choice of al-Khiraqi ("or he appointed him overseer of his marriage"), the view of al-Hasan, Hammad ibn Abi Sulayman and Malik; the other refuses it, like al-Thawri, al-Sha'bi, al-Nakha'i, al-Harith al-Akli, Abu Hanifa, al-Shafi'i and Ibn al-Mundhir: the wilaya passes by the Law to another and is not bequeathed, like custody; the wasiyy suffers no harm in letting it be wasted, so the wilaya is not established to him as to a stranger; and it is a wilaya of marriage, which is not bequeathed like the wilaya of the judge. Abu Abdillah ibn Hamid: with asaba, the bequest of the nikah is not permitted, for it would remove their right; without asaba, it is permitted. The Hanbali answer: the wilaya is established to the father, so his bequest holds like that of property; he may delegate during his life, so after his death; and their objections fall through the wilaya of property.
Consequence: the bequest for the nikah holds from every holder of wilaya, with jabr or without, and each one's wasiyy stands in his place. Malik specifies: if the father named the husband, the wasiyy compels, minor or adult; without naming, if the daughter is adult, the testament is valid and her consent is weighed; if minor, one waits for her puberty and her consent. The Hanbali answer: whoever receives the power to marry with the husband named has full power like the agent, and the one the father's agent married when she was a minor has no option at puberty, for the wasiyy replaces the testator like the agent. (al-Mughni 7/15-16)
The Hanafis, the Shafi'is and one Hanbali narration deny the wasiyy any wilaya.
The Hanafis: the Prophet said there is no marriage without a wali (hadith cited above), and the wasiyy is not a wali; he acts by order and does not go beyond the order, like the agent; and even a bequest of marriage takes no effect: the wilaya of marriage is not transferred during life or after death; its cause is kinship, which is not transferred; acts over property after death are not like acts over marriage, which is transferred only to the two spouses; the wasiyy during the father's life is not like the agent, for the order of the living persists, while the order of the dead is severed for what cannot be transferred; marriage belongs to the asaba, and the wasiyy who is not of the kinship is like strangers; if he is of the kinship (an uncle or other), he has the wilaya through kinship, not through the testament; if the testator named a man during his life and the wasiyy marries the woman to that man during the testator's life, he is an agent, not a wasiyy; after the death, the agency is severed and the wilaya passes to the judge in the absence of a relative, unless the wasiyy is a relative or the judge, in which case he marries by the wilaya if no one more entitled exists.
As-Sarakhsi adds: the minor boy and girl entrusted to a man who maintains them (who owes them support): his station is below the wasiyy's and he has no wilaya of marriage, for maintaining the minor grants only acts beneficial to the minor, such as custody or accepting a gift, and marriage has no such quality. (al-Mabsut 4/333, Ahkam al-Quran of al-Jassas 2/345, Bada'i' al-Sana'i' 2/252, hashiyat Ibn Abidin 3/54-55)
The Shafi'is: the wasiyy has no wilaya of marriage even if charged with it, for no kinship calls him to compassion and scrutiny, and he has no stake in the equivalence. (al-Wasit 6/75, al-Muhadhdhab 1/449)
Ibn Rushd: Malik makes the wasiyy a wali, al-Shafi'i denies it; the cause of the disagreement is the same as for agency (wakala) in marriage, which the majority permits, except Abu Thawr; there is no difference between agency and the testament, the wasiyy being an agent after death, and agency ending at death. (Bidayat al-Mujtahid 2/10)
There is no disagreement among the scholars of the community: the wilaya of marriage is established through authority, on the hadith:
The sultan is the wali of the one who has no wali.
sahih hadith, related by Abu Dawud (2083), at-Tirmidhi (1102), Ahmad (25365) and Ibn Hibban (4074)
Ibn Abd al-Barr: they agreed that the sultan is the wali of the one who has no wali, the wilaya passing after the extinction of the ta'sib to the one who stands over this foundation. (al-Istidhkar 5/393) Ibn Battal: they agreed that the sultan marries the woman who wants marriage and seeks an equivalent when her wali refuses. (Sharh Sahih al-Bukhari 7/249) Ibn al-Mundhir: all those whose words are preserved agreed; it is the doctrine of Malik, al-Thawri, al-Shafi'i, Ahmad, Ishaq, Abu Ubayd, Abu Thawr and the partisans of opinion, and it is also reported from Uthman, Shurayh and al-Nakha'i. (al-Ishraf 5/30) Ibn al-Qattan al-Fasi and Ibn Hazm report the same consensus: the sultan whose obedience is due marries the woman to the one she loves among those whose marriage to her is permitted.
(al-Iqn' fi Masa'il al-Ijm' 3/1164, no. 2140; Maratib al-Ijm', p. 65) Ibn Rushd: they agreed that the guardian may not hold back his ward who seeks an equivalent with the equivalent dower: she raises the matter to the sultan, who marries her, except the father, over whom the doctrine differs. (Bidayat al-Mujtahid 2/12)
Al-Kasani: the wilaya of authority has two types like that of kinship, with the same conditions, plus two more. The first covers both types: that no wali exists at all (the hadith cited). The second specifies the type of recommendation or sharing: the wali's unjustified refusal ('adl): the free, adult, sane woman who seeks an equivalent, the wali must marry her, for refusing is forbidden and the prohibition commands the opposite; in refusing he harms her, and the imam is appointed to repel harm: the wilaya passes to him. (Bada'i' al-Sana'i' 2/252)
If the wali is absent, his whereabouts unknown and his absence prolonged, or absent with a counted absence, does the wilaya pass to the next guardian or to the sultan? The Hanafis, the Malikis (with details) and the Hanbalis in the madhhab make it pass to the next guardian: the hadith says the sultan is the wali of the one who has no wali, and here the woman has a suitable guardian; the farther is preferred by nearness of the tie, the nearer by nearness of place: they are equal.
The Hanafis, contrary to Zufar: if the nearest guardian (the father) is absent with a cut-off absence (no news), the farther (the grandfather) may marry her: the wilaya is a right of scrutiny (nazariyya), and scrutiny is not delegated to one who does not benefit by it; the farther then precedes the sultan, as if the nearest had died; with his presence the sultan may not marry.
The reasoning: the wilaya is established to scrutinize the right of the one under guardianship, who cannot scrutinize for herself; the nearest precedes because his scrutiny is greater through closeness; yet scrutiny is not achieved by the nearest's opinion alone, but by a present and beneficial opinion: here his opinion is no longer so, he joins the one who has no opinion at all, like the minor; the farther's opinion is a substitute (khalaf) for the nearest's opinion, and the ruling belongs to the substitute whether the origin is absent or of no benefit: as pure earth is the substitute for water in purification, even if water exists but is impure, that is, unusable; likewise custody and upbringing prefer the nearest, and if the nearest marry or are occupied, the wilaya passes to the next, and support from the nearest's property passes to the next's property if the first property becomes inaccessible.
As for the case where the nearest marries her where he is, that is because she benefits from his opinion; that benefit has already occurred, and the ruling cannot be built on it: the farther has nearness of management and the nearer nearness of the tie, and the wilaya is established with both: they are like two guardians of one rank, and whichever of the two marries, his marriage is valid; the judge's wilaya applies only at need, and there is no need here.
The definition of the cut-off absence: being in a land the caravans reach only once a year (the choice of al-Quduri); it is said: the minimum travel duration; it is said: three days, and the fatwa is given on that; it is said: when the suitor of equivalence would be lost by waiting for his opinion, which is closest to jurisprudence and the fatwa of several later scholars. (al-Mabsut 4/220-221, al-Hidaya 1/200, al-'Anaya 4/437-438, al-Jawhara al-Nayyira 4/307-309, Mukhtasar al-Wiqaya 1/360, al-Ikhtiyar 3/120-121, al-Lubab 2/31)
Zufar: no one marries her until the nearest is present, the farther being screened by the nearest's wilaya, which remains after the absence: absence has no power to cut the wilaya, inheritance does not stop; the wilaya is the wali's right to seek the equivalence, and his rights do not fall through absence; the sultan cannot marry either, his wilaya coming after that of the farther; it is not like the unjustified refusal, where the wali is an oppressor withholding a due right: the sultan replaces him to repel injustice; here the nearest does not oppress by traveling, especially for the pilgrimage, and one waits for his presence. (same sources)
Among the Malikis, absence has three categories. The first: the father (or the master of the slave woman, or the father's wasiyy) absent with a near absence, some ten days, on safe roads: neither the judge nor the next guardian (brother, grandfather) may marry the woman under jabr, virgin or previously married, minor, adult or insane, during the father's absence: he is like one present, for news can reach him without great hardship; the hadith says the orphan is consulted about herself (related by Abu Dawud (2093), an-Nasa'i (3270) and Ahmad (19674)), and the father's daughter's case is other; his right of wilaya and jabr is established, and the near absence counts as presence: one does not bypass him as if he were there; if he refrained from marrying her, one bypasses him only after repetition and his knowledge of the unjustified refusal.
If he married, the marriage is revoked forever, even if children are born or the father approves, unless the harm the father suffered from it is proven; otherwise she is married and her wali becomes like a present unjustified refuser: she raises the matter to the imam, who marries her or compels him. If the roads are feared and loss or corruption is feared for her: like the far absence, only the judge marries her, otherwise revocation. The second category: the father (or the guardian with jabr) absent with a very far absence: only the judge may marry the absent man's daughter, if no speedy return is expected.
Likewise the judge may marry the woman whose nearest guardian, without jabr, is absent three nights' distance from her town or thereabouts, if she seeks an equivalent and proves the absence, the distance and the equivalence: the judge marries, not the farther, for the nearest's absence does not remove his right, and the judge is the absent one's agent; at less than three nights, he is written to: if he comes or delegates, otherwise the judge marries; if the farther marries in this state, the marriage is valid; beyond three nights the ruling is the same; below it, the right passes to the farther.
The third: the guardian's captivity or going missing (mafqud), with jabr or without, with no news and no known place: it is like death on the most widespread view (the captivity or loss of the nearest counting as his death, at which the wilaya passes to the farther): the farther marries her, not the judge, even if maintenance runs on the virgin without concealment; it is said: the captive and the missing one are like the far absent, only the judge marries and the right does not pass to the next. (al-Ishraf 3/299 no. 1134, al-Taj wa-l-Iklil 2/502-503, Mawahib al-Jalil 5/69-70, Sharh Mukhtasar Khalil 3/186-187, al-Sharh al-Kabir with hashiyat al-Dasuqi 3/27-28, al-Tahrir 2/564-566, hashiyat al-Sawi 4/454-457)
The Hanbalis: if the wali is absent in a place the mail does not reach, or reaches and he does not answer, the farther among her asaba marries her before the judge; with no nearer guardian, the judge marries: the hadith says the sultan is the wali of the one who has no wali, and this woman has a suitable guardian; the farther is preferred by the tie, the nearer by the place, and they are equal; the nearest's marriage has become impossible, so the wilaya is established to his next, as if he were insane or dead; and it is a state in which marriage by one other than the nearest is permitted, so it belongs to the farther as the base. The cut-off absence follows the same ruling: consulting him becomes altogether impossible. The qadi says the limit of the distance is that the caravans return only once in the year, for the suitor of equivalence waits a year and no more, and delay harms the woman.
Ahmad said in one place: if the father is far traveling, the brother marries; Abu al-Khattab comments that he probably meant the distance that shortens the prayer, that being the travel to which the rulings are tied; Abu Bakr sets the limit at what is reached only with hardship and effort, Ahmad having said: if no guardian is present among her asaba, they are written to for consent, unless the absence is cut-off and reached only at cost and hardship: then the sultan is the wali of the one who has no wali. Ibn Qudama: this view is, if Allah wills, the closest to the truth, for the quantified determinations are fixed by revelation, and there is none here: one returns to what people recognize among what custom does not wait for, where the woman suffers harm from being barred from marriage and the suitor is lost; the one whose mail does not leave is farther, and at the prayer-shortening distance writing is not burdensome: the middle is most fitting.
He then adds: the near one imprisoned or captive at a short distance where he cannot be consulted is like the far one, for distance is weighed only for the impossibility of reaching marriage through his scrutiny; and the one whose nearness or distance is unknown, or whose proximity is known but not his place, is like the far one. (al-Mughni 7/25-26, Sharh al-Zarkashi 2/334-335, al-Mubdi' 7/37-38, al-InSaf 8/76-77, Kashshaf al-Qina' 5/58)
The Shafi'is, and a narration among the Hanbalis: if the nearest guardian is absent two stages away with no agent present in the town, or less than the prayer-shortening distance, the wilaya passes to the sultan of her town or his deputy, not to the other guardians (the sounder view): the sultan secures her rights and manages her property upon the loss of her guardian, so he is most entitled to the marriage; the judge marries as in the case of unjustified refusal, the farther being screened and the wilaya remaining: the judge stands in his place, the absent one being wali and marriage his right, and the judge deputizing for him when obtaining it is impossible. It is, however, more fitting that the sultan authorize the farther guardian, or that he seek authorization, to leave the point of disagreement.
Below two stages he does not marry without authorization (the sounder view), the distance being short: he is consulted, he comes or delegates, as if resident; on the second view he marries, so the woman does not lose the willing suitor of equivalence, but that is at the prayer-shortening distance or for the missing one whose place, death or life is unknown: then the sultan marries, marriage from the absent one's side being impossible; if the judge ends by ruling his death and dividing his property among the heirs, the wilaya passes to the farther. It is recommended (mustahabb) for the sultan not to marry the one claiming her wali's absence until two witnesses testify that she has no guardian present and that she is free of any marriage and any 'idda; it is said to be obligatory. (al-Muhadhdhab 2/37, Rawdat al-Talibin 4/706-708, al-Najm al-Wahhaj 7/96-98, Mughni al-Muhtaj 4/262, Tuhfat al-Muhtaj 8/614-615)
Ibn Rushd: Malik says the nearest guardian's absence passes the wilaya to the farther, al-Shafi'i to the sultan; the cause of the disagreement is whether absence counts as death, on which there is no disagreement for the transfer. On the father's absence from his virgin daughter, the doctrine holds a detail: it all depends on the distance and length of the absence, or the nearness, or the unknown whereabouts, and on the daughter's need to marry: lack of support, fear for her honor, or both.
The doctrine agrees: if the absence is far, or the father of unknown whereabouts or captive, and the girl is protected and provided for, she marries only if she asks; if she asks, she marries during captivity and unknown whereabouts. They differ on the known far place: Malik says she marries, Abd al-Malik and Ibn Wahb say she does not. If support is lacking or she is unprotected, she marries in all three states, even without asking. There is no disagreement: at the near known absence she does not marry, consultation being possible; nor is the view far off that if time presses and the sultan fears corruption for her, she marries even if the place is near.
(Bidayat al-Mujtahid 2/10-11)