Islamic Fiqh > Marriage and family > Wilaya (marital guardianship) and kafa'a > Who is the wali meant by the hadith?
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Ibn Abd al-Barr: the scholars agreed that the wali meant in the hadith "there is no marriage without a wali" is the wali through kinship and ta'sib. They agreed that relatives who are not asaba (the maternal uncle, every relative through women) do not marry off in the presence of asaba. They differ over their right in the absence of asaba: the majority, namely Muhammad ibn al-Hasan among the Hanafis (reported also from Abu Yusuf), the Malikis, the Shafi'is and the Hanbalis, deny that they marry off. Ibn Hubayra: they agreed that the wilaya of marriage belongs only to the heir by ta'sib, except one narration from Abu Hanifa: every heir, whether his inheritance is by fixed share or by ta'sib.
(al-Ifsah 2/134)
Ibn Qudama: no wilaya for relatives outside the asaba, such as the maternal brother, the maternal uncle, the mother's uncle and the maternal grandfather: Ahmad stated it explicitly in several places; it is the view of al-Shafi'i and one of the two narrations from Abu Hanifa. (al-Mughni 7/13, Sharh al-Zarkashi 2/327, Kashshaf al-Qina' 5/54, Mutalib Uli al-Nuha 5/61, Manar al-Sabil 2/558) The second narration has every heir by fixed share or ta'sib marry off, for he is among her heirs: her guardian is like her asaba. The Hanbali proof is this word of Ali:
When the women reach the term fixed by the decree, the asaba are most entitled if they exist.
related by Abu Ubayd in Gharib al-Hadith (3/456-457) and al-Bayhaqi (13473), a sahih hadith
and the fact that he is not of her asaba: he is like a stranger.
Ibn Battal: Malik, al-Layth, al-Thawri and al-Shafi'i say the guardians are the inheriting asaba: the maternal uncle, the grandmother and the maternal brothers are not marriage guardians with Malik; Muhammad ibn al-Hasan differs: every man bearing the name of wali is a wali and concludes the nikah, and Abu Thawr follows him. Al-Abhari gives Malik's proof: the wali is the holder of ta'sib, to which the ties of the womb have no access; the marriage contract follows that same wilaya of ta'sib. Ibn al-Mundhir recalls that the verse "do not prevent them" came down about Ma'qil, who is an 'asib, proof that the guardians are among the asaba. (Sharh Sahih al-Bukhari 7/250, al-Ishraf 5/15)
The proof of Abu Yusuf and Muhammad is the hadith "the nikah belongs to the asaba" (the hafiz Ibn Hajar says in ad-Diraya, 2/62, that he did not find it): the definite article shows that all the wilaya of marriage belongs only to the asaba; besides, they hold no wilaya of managing property, and the mawla of manumission precedes them although he has no kinship: were kinship what established the wilaya, they would precede the mawla. The origin of the wilaya is the group of asaba: they are the ones who shield the tribe from disgrace, so they are the ones who scrutinize marriage; and the kinship of ta'sib precedes the kinship of the womb by consensus. (al-Mabsut 4/223, Bada'i' al-Sana'i' 2/240-241, al-Ikhtiyar 3/119, al-Jawhara al-Nayyira 4/301-302, Mukhtasar al-Wiqaya 1/359, al-Lubab 2/30)
Abu Hanifa, and Abu Yusuf in a narration, allow relatives outside the asaba to marry off in the absence of the asaba, males and females: the mother, the maternal uncle, the maternal aunt, the sister, every relative through women; each marries off the one who has not yet had a wet dream; the most entitled: the mother, then the grandmother, then the sister by both parents, then the paternal sister, then the maternal sister, then the nearest; and the relatives through women precede the judge.
Abu Hanifa's proof: the generality of the verse "marry the unmarried among you and the righteous" (Sura an-Nur, 32), without distinguishing asaba from others: the wilaya is established by generality except what a proof excludes; the cause of the wilaya is kinship itself, which carries compassion; the cause exists here, as does the condition of establishment (the ward's incapacity to contract herself); ta'sib and nearness are only conditions of precedence, not of establishment: the asaba precede the relative through women, and the nearest of the non-asaba precedes the farther, without harm. Then the wilaya of marriage follows the right of inheritance, the cause being the same (kinship): every heir marries off, as the enslaved father has no wilaya (the slave inherits no one), the disbelieving father over the Muslim child has none (he does not inherit), nor the Muslim father over the disbelieving child (no inheritance from him): the wilaya follows inheritance.
And the first cause is the compassion born of kinship: it is realized in every holder of the tie; the mother's compassion surpasses that of distant cousins, as does the grandmother's and the maternal uncles'; the mother is one of the two parents and receives the wilaya like the other: this is reported from Ali and Ibn Mas'ud, who approved his wife's marrying off the daughter she had from another man, by virtue of motherhood. The principle: every kinship that carries the heir carries the wilaya; the relatives through women are only delayed behind the asaba for the weakness of judgment and distance of tie, as in inheritance. As for the hadith "the nikah belongs to the asaba", it concerns their presence; in their absence it is silent: the right passes to those resembling them in compassion, and it argues for us, not against us. When the asaba and the relatives through women are absent, the judge marries her.
(same sources)
What is the ruling of marriage concluded by the most distant guardian while the nearest guardian, who is not a guardian with jabr, exists and can conclude? The Shafi'is and the Hanbalis: the farther's contract in the nearer's presence, without impediment, is invalid. The Malikis, on the sahih of their school: it is valid if the guardian is not one with jabr, that is, the father, the wasiyy and the owner of the slave woman; if the guardian is one of these, one does not bypass him. The Hanafis: the farther's marriage in the presence of the nearer who holds the wilaya is suspended on his approval, the farther being like a stranger in his presence; his silence is not an approval, even if he attends the contract, unless there is explicit consent or clear indication; and if the wilaya passed to him through the nearer's death or a cut-off absence, the contract remains suspended on his approval.
(al-Mabsut 4/219-220, hashiyat Ibn Abidin with ad-Durr al-Mukhtar 3/81)
Ibn Hubayra: al-Shafi'i and Ahmad: the marriage is not validated; Abu Hanifa: the farther's contract is annexed to the nearer's approval, or to the virgin, on reaching majority, choosing. (al-Ifsah 2/133-134 and the sources cited above)
Malik distinguishes two wilayas: that of jabr, without asking (the father over the minor), and that of permission, where the nearer is preferred to the next (the brother before the uncle); if the farther steps ahead without asking, the marriage is valid if they do not dispute. Ibn Abd al-Barr reports from Malik, in the Mudawwana, that marriage by the farther is valid if the suitor is pious and virtuous; Sahnun says most of the reporters deny marriage when a nearer exists, and that in that case the sultan examines it; others report that the nearer may approve or annul, unless the woman stays long with her husband and has children, which concerns women of rank and standing; Ibn Habib reports from al-Majshun that the marriage is in the hand of the one seated at the contract: he annuls or approves it, unless the husband has consummated; al-Mughira says marriage with a nearer existing is invalid and revoked. The reports of Malik and his companions on this point are many and unstable. (al-Istidhkar 5/394)
Al-Qadi Abd al-Wahhab: if the nearer and farther of the asaba are present and do not dispute, whichever of the two concludes, his contract is valid; al-Shafi'i invalidates it; the proof is that they are both asaba without jabr: each concludes like two equals in nearness. (al-Ishraf 3/304 no. 1140)
Ibn Rushd: Malik said at once that the farther's marriage in the nearer's presence is revoked, that it is valid, and that the nearer may approve or annul it; there is no disagreement in two cases: the virgin daughter's marriage by one other than the father, and the ward's by one other than the wasiyy: the marriage is revoked by all; al-Shafi'i rejects any contract in the father's presence, virgin or previously married. The cause of the dispute: is the ranking of guardians a religious ruling within the wilaya? If so, is it the guardian's right or Allah's? Whoever does not see a religious ruling validates the farther's marriage; whoever sees the guardian's right holds the contract concluded, approved or revoked; whoever sees Allah's right holds it not concluded; some even reject that it be dissolvable without being concluded.
(Bidayat al-Mujtahid 2/10-11)
Ibn Qudama examines three rulings. First: the farther guardian concludes the contract, the woman accepts, the nearer is present: invalid according to al-Shafi'i; Malik validates it, the farther being a wali with her consent like the nearer; the Hanbali answer: the farther is a holder of ta'sib, and he has no such right in the nearer's presence, as in inheritance: this is what distinguishes the near from the far. Second: the contract is corrupt (fasid) and is not repaired by approval, neither the nearer's nor anyone's; the same ruling for the stranger's contract, for the contract over the woman whose consent counts without that consent, and for the slave's without his master's consent: all of that is invalid on the sounder of the two narrations; Ahmad states it explicitly, as do al-Shafi'i, Abu Ubayd and Abu Thawr; another narration from Ahmad makes the contract hang on approval: it is validated or dissolved. (al-Mughni 7/21-22, Kashshaf al-Qina' 5/59)
The guardian is either one with jabr or not; the guardian with jabr takes precedence, with no disagreement among those who affirm it. The jurists then differ over several questions, among them: is the woman's son her wali, and does he precede the father among those who recognize him?
The majority (Hanafis, Malikis, Hanbalis, and al-Muzani among the Shafi'is) grant the wilaya of marriage to the woman's son: the son is a holder of ta'sib, and inheritance is a form of wilaya, the heir succeeding the deceased in ownership and management; the causes of inheritance are the fixed share (farida), ta'sib and kinship, and the strongest is ta'sib: the wilaya is therefore tied to the strongest cause of inheritance.
The leaf cites the long hadith of Umm Salama: after Abu Salama's death she recited the supplication "O Allah, reward me for my affliction and replace it with better", wondering who would be better than Abu Salama; Abu Bakr then Umar sought her hand without success; the Prophet sent Umar to ask for her on his behalf; she answered that she was jealous and afflicted, and that none of her guardians was present; the Prophet answered that none of her guardians, present or absent, would disapprove of that marriage; she then said to her son: "Rise, Umar, and marry the Messenger of Allah", and he did (related by an-Nasa'i (3254), Ibn Hibban (2949), al-Hakim (2734) and al-Bayhaqi (13530), a weak hadith).
The arguments: that meaning entails ta'sib in inheritance, so the wilaya of marriage, like brotherhood and fatherhood; sonship entails wilaya over whoever is one's child, originally the nephew; every rule established for the nephew's son is established for the son, originally inheritance; every male holder of ta'sib in inheritance holds it in the marriage contract, originally the brother and the uncle; the son parallels her asaba, so his wilaya is established like the brother's; the woman's son is her 'asib, so he is wali like the father; and the son's ta'sib is stronger than the father's, their being together making the father a fixed-share holder: the son is thus more entitled than the father to marry her; finally the wali is wanted to protect the wife from marriage with one who does not give equivalence and casts disgrace on her family, and the son is the one who repels disgrace most, through his fierce zeal: he is the most entitled. (al-Mabsut 4/220, Mukhtasar al-Wiqaya 1/359, al-Ishraf 3/302-303 no.
1137, al-Mughni 7/11-12, al-Ifsah 2/132, Sharh al-Zarkashi 2/324, Manar al-Sabil 2/557-578)
The Shafi'is deny it: no wilaya for the son over his mother, and no marriage through sonship unless he is her 'asib; the wilaya is established to guardians to repel disgrace from the lineage, and there is no lineage between son and mother: she is attributed to her father, he to his father (that one's husband); the husband has no wilaya over his wife, the mother does not marry herself, and the same holds for whoever presents her at the contract. Now the wilaya of marriage is instituted only to seek the woman's benefit and protect her, and the son reckons marrying his mother a disgrace: he does not seek her benefit nor protect her. Unless he has ta'sib, as the paternal nephew's son: they share the lineage back to the common ancestor, and he marries as the brother marries the paternal sister; likewise if he is her wali's agent or the judge: sonship is no cause of wilaya, but it does not block another cause.
Three answers to Umm Salama's marriage: first, her son married her because he was also her ally: Umar ibn Abi Salama ibn Abd al-Asad ibn Hilal ibn Abdillah ibn Umar ibn Makhzum was among the paternal cousins, thus the nearest of her present asaba: he married her by the ta'sib of lineage, not by sonship. Second, the words "rise and marry your mother" mean "bring the one who will marry her", all the more as she said she had no guardian present, which the Prophet confirmed; and her son was not of age: six or seven years old by some accounts, two or three by others (born in Abyssinia in year 2, the marriage taking place in year 4): the command was thus to bring whoever would conclude the contract. Third, the Prophet is singled out in his marriages: he may marry without a wali, and the order given to the son was to ease the matter for himself, not for the contract's validity; moreover the reporter of this version is known only through Umar ibn Abi Salama, who never met Umar ibn al-Khattab: the report is interrupted.
A fourth answer: the Prophet meant Umar ibn al-Khattab, whose lineage meets Umm Salama's at Ka'b; the son's name (Umar) matched his, and some reporters understood the son, reporting by meaning and forgetting the impossibility given his young age. Such is the error of some jurists who report "rise, boy, and marry your mother"; Abu al-Faraj Ibn al-Jawzi says this version is not known in the hadith, and that if it stands, it is a playful address to the three-year-old child; the Prophet's marriage, finally, needs no wali. (al-Hawi al-Kabir 9/94-96, al-Muhadhdhab 2/36, al-Bayan 9/168-169, Zad al-Ma'ad 1/108, Rawdat al-Talibin 4/699, al-Najm al-Wahhaj 7/78-79, Kanz al-Raghibin 3/553-554, Mughni al-Muhtaj 4/254, Tuhfat al-Muhtaj 8/594, al-Dibaj 3/200)
Among those who grant the wilaya to the son, three views on precedence. The first: the son precedes; the view of Abu Hanifa, Abu Yusuf, the Malikis on the widespread view and the Hanbalis in a narration: the son's ta'sib is stronger, the son's presence making the father a fixed-share holder (the sixth), like the full brother before the paternal brother. The second: the father precedes; the Hanbali doctrine, the view of Muhammad ibn al-Hasan and a Maliki view: the father's wilaya covers property and person, whereas the son has no wilaya of property; the father customarily watches over her, the son watches for himself; the wilaya is scrutiny for the ward's benefit, and the father's act is more scrutinizing as he is more compassionate, so he precedes over property too; the father is of the woman's people, the son is not, since he is attributed to his father; the child is a gift made to the father:
So We answered his prayer and We gave him Yahya.
Sura al-Anbiya, 90
My Lord, grant me from Yourself a pure offspring.
Sura Al 'Imran, 38
Grant me from Yourself a close heir.
Sura Maryam, 5
Praise be to Allah who has granted me Ismail and Ishaq in my old age.
Sura Ibrahim, 39
and the hadith "you and your property belong to your father" (a sahih hadith): the donee's wilaya over the gift takes precedence over the reverse; the father is more complete in scrutiny and stronger in compassion, as he precedes the grandfather; he manages his son's minority, prodigality and madness, hence his wilaya over him in everything else, unlike the son's wilaya: that is why he alone holds the wilaya of property and may buy for her from his property or from hers while she is a minor; and the wilaya is an arbitration (ihtikam), and the origin's arbitration over its branch is more fitting than the reverse, which distinguishes it from inheritance, where scrutiny does not enter: the minor and the insane inherit without wilaya over the inherited.
The third view: they are equal, toward which Ibn Taymiyya leans ("the son and the father are equal in the wilaya of marriage, as with the bequest to the nearest relative"); al-Mulla reports from Abu Yusuf that whichever of the two marries, his marriage is valid; al-Kasani explains that each carries a cause of precedence: the father, because he is of her people and more compassionate; the son, because he inherits by ta'sib: both causes existing, whichever of the two marries, his marriage is valid. (al-Mabsut 4/220, Bada'i' al-Sana'i' 2/250, Mukhtasar al-Wiqaya 1/359, al-Ishraf 3/303-304 no. 1138, al-Taj wa-l-Iklil 2/494, Mawahib al-Jalil 5/62, al-Sharh al-Kabir 3/20, al-Tahrir 2/552, al-Ifsah 2/132, Sharh al-Zarkashi 2/324, al-Mubdi' 7/30, al-InSaf 8/69, Manar al-Sabil 2/557-578, al-Fatawa al-Kubra 5/531)
When both are present, the father is preferred out of veneration and respect; likewise for the father and the son's son, which falls under the same disagreement; and the most fitting in both cases is that the son delegate the marriage to the father, out of respect and to avoid the point of dispute. (Bada'i' al-Sana'i' 2/250)
Hanafis (the retained doctrine): the nearest is the son, then the son's son however far down, then the father, then the paternal grandfather however far up, then the full brother, then the paternal brother, then the full brother's son then the paternal brother's son however far down, then the full uncle then the paternal uncle, then the full uncle's son then the paternal uncle's son however far down, then the father's paternal uncles (full then paternal), then their sons in the same order; then the mawla of manumission, male or female alike, then the mawla's asaba; and in the absence of any asaba, every relative who inherits the minor boy or girl through women may marry them, on the apparent content of Abu Hanifa's doctrine. (al-Muhit al-Burhani 3/128, Sharh Fath al-Qadir 3/277, al-Bahr al-Ra'iq 3/127, Mukhtasar al-Wiqaya 1/359, al-Fatawa al-Hindiyya 1/283-284, hashiyat Ibn Abidin 3/69)
Malikis (the widespread view): with several guardians present, the most fitting is that the woman's son conclude the contract with her consent, then his son (the grandson before the father); but if the father concludes with the son or grandson present, the marriage is valid without harm to the son. Then the father, in the absence of a son and descendant: he precedes all; this ranking holds if the girl is not in the father's or a wasiyy's custody; in their custody, the father precedes the son. Then the paternal brother in the father's absence, then his son however far down, then the paternal grandfather, whose rank comes after the brother and his son; then the paternal uncle then his son, then the father's grandfather then his uncle, that is, the father's paternal uncle then his son. It is more fitting to prefer in each category the full one over the paternal one, and at equal rank the better.
If equals in rank and merit dispute, like brothers all scholars, the judge, if there is one, examines whom to prefer; otherwise lots are drawn. Failing all of them: the mawla; then the one who maintains her without being an 'asib (the one who raises her to puberty, or ten years if she is of humble condition, not of rank); otherwise her guardian is the judge. The duration of that maintenance is the time in which compassion and tenderness customarily occur: no limit of four or ten years on the sounder view, but he must show his compassion in deed; otherwise the judge concludes. Then the judge prevails over all who precede, and failing him the sultan is the mawla (the hadith cited).
Then the general wilaya of any Muslim: the maternal uncle, the maternal grandfather and the maternal brother belong to it; they marry with her consent, when she is known free of impediments; and the husband belongs to it: he takes charge of both sides. Marriage through this general wilaya is valid for a woman of humble condition even with a specific guardian present (father, son, uncle) who does not compel: she is adult, previously married or virgin, with no father or wasiyy, and the marriage is never revoked, whether the time is long or short, with or without consummation: given her lowliness and the indifference she draws, no disgrace reaches her through it.
The humble woman (dani'a) is she who lacks beauty, wealth, merit (hasab) and lineage; without lineage: the child of fornication or of doubt, or the freed slave girl; merit is noble character: knowledge, forbearance, management, generosity; the rich, beautiful woman is not humble even without merit or lineage, and the woman with lineage is not humble though poor or plain; any woman bearing two of these four qualities is of rank, and some say one suffices; except the poor folk whose lot is to serve others, without religion or protection: though their lineage is known, they are looked down on for their want of piety and protection, and their lowliness is apparent. One question remains open: may any Muslim conclude the contract of a humble woman with her father present? Two views in the doctrine.
Marriage of a woman of rank through this general wilaya, with a specific non-compelling guardian, is valid if the husband consummates and time lengthens, that is, a period of childbearing like three years; but if he contracts with a compelling guardian present, the marriage is corrupt and revoked forever, even with his approval. (al-Taj wa-l-Iklil 2/494-495, Mawahib al-Jalil 5/62-64, al-Sharh al-Kabir with hashiyat al-Dasuqi 3/20-22, al-Tahrir 2/556, hashiyat al-Sawi 4/444-449)
Shafi'is: the most entitled of the guardians is the father, the most compassionate; then the paternal grandfather, then his father however far up, distinguished by begetting; then the full brother, then the paternal brother, then his son however far down, then the full or paternal uncle, then the rest of the kinship asaba as in inheritance, the source being the same. She who has no asaba through lineage is married off by the one who freed her; if a man freed her, he holds the wilaya of her marriage, then his asaba. If the freed man and his asaba disappear, the sultan marries (the hadith cited): here, every holder of authority over her, general or specific: the judge, the officer of marriage contracts, or whoever manages that specific marriage. The sultan also marries when the near one refuses, even if he compels, by consensus.
The son never marries off his mother, though she be incapacitated, through sonship: no wilaya for the son over the mother, unless he is her 'asib (the paternal nephew's son); or if he is her wali's agent or the judge. (same sources as the preceding part)
Hanbalis: the most entitled of the guardians is the father: the child is a gift made to the father (the verses and the hadith cited), the donee's wilaya takes precedence, the father is the most compassionate and the most complete in scrutiny, unlike inheritance, since he may buy for her from his property or from hers. Then his father however far up: the grandfather has begetting and ta'sib that bring him close to the father, and the closest of grandfathers, as in inheritance. Then her son then his son however far down, then her full brother as in inheritance, then her paternal brother as in inheritance, then their sons: the full brother's son before the paternal brother's son, on down as in inheritance. Then the full uncle then the paternal uncle then their sons however far descended, the nearest first.
Then the nearest asaba in the order of inheritance: the wilaya rests on scrutiny and compassion, of which kinship is the seat, and the nearest heir is the most entitled to the wilaya.
Ibn Hubayra: they agreed that the wilaya belongs only to the heir by ta'sib: the sons of a higher forefather therefore do not precede the sons of a nearer forefather, even if their degree descends; the most entitled children of each forefather are those nearest to him, with no known disagreement. If two cousins have, in one case, a maternal brother, he is preferred like the full over the paternal; it is said they are equal, being equal in ta'sib and inheritance through it, the maternal tie inheriting only alone with no preference: the cousin through both parents then precedes the paternal cousin who is a maternal brother. Then the manumitter benefactor, who inherits her and is her mahram in the absence of her lineage asaba; then his nearest asaba in the order of inheritance; then the mawla's mawla then his asaba; then the mawla of the mawla's mawla then his asaba.
Then the sultan (the hadith cited): the great imam or his judge-deputy, and those to whom they entrust the marriages; from which it follows that the amir has no marriage duty, as the imam's text in Abu Talib's narration says: the judge rules on marriage, rights and stoning; the police chief is charged with discipline and crimes, not estates, wills, marriages, stoning and punishments, which return to the judge or to the caliph beyond whom there is nothing. In al-Marwazi's narration, on the small town that has a mawla without a judge: if he observes the dower and the equivalence, it is possible there is no harm in it, and the judge understood him as authorized to marry. Shaykh Taqi al-Din: the sounder course is to take his words literally when the judge is impossible, a situation of necessity.
No wilaya for relatives outside the lineage asaba and outside wala', such as the maternal brother, the maternal uncle, the mother's uncle, the maternal grandfather and their like; nor for the one through whom the woman converted, nor for the multaqat (the taken-in child): no lineage and no wala', on the hadith "wala' belongs to the one who frees". If the wali is altogether absent (none of the preceding exists or hers refuses with no other): the place's authority holder marries: the town governor, its chief, the caravan leader; failing him, a just man with her consent: Ahmad says of the village's dihqan (its chief) that he marries the one with no wali observing equivalence and dower if there is no judge in the small town: requiring the wilaya here would prevent marriage altogether, like requiring ta'sib from one who has no 'asiba; and if the town has a judge who refuses to marry except through injustice (a fee he does not deserve, having enough in the treasury house, or asking more): his presence counts as his absence.
(al-Mughni 7/10-12, al-Ifsah 2/134, Sharh al-Zarkashi 2/323-324, al-Fatawa al-Kubra 4/530, al-Mubdi' 7/30-31, al-Fur' 5/135, al-InSaf 8/69-71, Kashshaf al-Qina' 5/52-55, Sharh Muntaha al-Iradat 5/131-133, Manar al-Sabil 2/557-559)
The scholars stated explicitly that if two or more guardians are equal in degree (full or paternal brothers, uncles, cousins), the most fitting is to prefer the most knowledgeable.
The Malikis: if the guardians are of equal rank and dispute over who concludes the contract while agreeing on the husband, or over the choice of husband when each wants to marry her to a different man and the woman has named no one (otherwise she is given whom she named, if he is an equivalent), the sultan examines who concludes or who marries; without a sultan, lots are drawn. (al-Taj wa-l-Iklil 2/508, Sharh Mukhtasar Khalil 3/191, al-Sharh al-Kabir 3/33, al-Tahrir 2/574, hashiyat al-Sawi 4/446)
The Shafi'is: when the woman has several guardians of one degree, it befits her, and them, to refer the contract to the oldest, the most knowledgeable and the most pious: age has experience, knowledge knows the rules of contracts, piety chooses most safely.
Two states for the betrothed woman: she authorizes one of them in particular: he takes priority, and marriage concluded by another is invalid, whether she named the husband or not, for lack of authorization; or she names no one: "let one of you marry me; whoever does so does it with my consent"; if they do not dispute, the one to whom they hand the contract concludes, the best or the least, with no excluding cause (alone he would be wali, so likewise in partnership); if they dispute, in two ways: over who concludes with an agreed husband: the sultan has no right over them, no one refusing, but lots are drawn, and the one the lot designates is most entitled; if another married before the drawing, the marriage is valid (he is a wali); after the drawing, two views: valid as a wali, or invalid, the lot having assigned the wilaya to another; or the dispute bears on the husband: it returns to the wife, and the one she prefers is most entitled; if she says they are equal to her and that she be married to one of the two, no drawing, for the lot cannot distinguish the object of the contract, which is fixed by consent; the guardians then become unjustified refusers, each refusing what the other approved, and the matter returns to the sultan, who marries her to whichever of the two he chooses, as if they had refused explicitly.
(al-Hawi al-Kabir 9/120-121, al-Muhadhdhab 2/39)
The Hanbalis: if she authorizes one of them in particular, he is fixed and the marriage of another who was not authorized is not validated; if she authorizes all of them, marriage by each is validated, the cause of wilaya existing in each; the most fitting is to prefer the best in knowledge and religion, then at equality the oldest: when Muhayysa, Huwayyisa and Abd al-Rahman ibn Sahl came to him, the Prophet said to the youngest "step forward, step forward", that is, let the elder go first, and Huwayyisa stepped forward; he is also the most encompassing of the contract's conditions and the scrutiny of benefit. If these equal guardians dispute, lots are drawn, equal in right and impossible to combine; if one other than the one the lot designated steps ahead and marries with their authorization, the marriage is validated: it is the marriage of a guardian complete in wilaya with the consent of his ward, valid as if he were alone, the drawing having been instituted only to remove discord. (same sources)
The jurists agree: if the woman authorized two guardians, one marrying her to Zayd then the other to Amr, without the second's consummation, she belongs to the first, by agreement of the four doctrines. They differ if the second consummated knowing which of them had come first: is the marriage dissolved? Is she the first's? The equivalent's?
The majority (Hanafis, Shafi'is, Hanbalis) give her to the first when both husbands are equivalents:
Any woman whose two walis conclude a marriage, she belongs to the first of them.
a weak hadith, related by Abu Dawud (2088), at-Tirmidhi (1110), an-Nasa'i (4682), Ibn Majah (2190) and Ahmad (5/8)
The first having come first, his marriage is valid, and the second's is not permitted: he married a woman under a husband's protection ('isma), as if he knew; and an invalid marriage remains so even if it appears there was no consummation: consummation does not cure it, as with the marriage of the woman in 'idda and of the apostate. The Quranic proof:
Forbidden to you are your mothers... and married women, that is, those who have husbands.
Sura an-Nisa, 23-24
The woman under a husband's protection is forbidden like the mother: consummation does not make her permitted. Qatada relates from al-Hasan, from Samura, the hadith of the first of the two (mentioned by Abu Dawud in his Sunan), and al-Shafi'i relates it through a chain he raises to 'Uqba ibn Amir: "when the two walis marry, the first has more right. Abu Musa al-Ash'ari relates that a woman had two guardians: one married her to Abdillah ibn al-Hasan al-Hanafi, the other to Ubaydillah ibn al-Hasan; Ubaydillah, the second, consummated; the two husbands pleaded before Ali, who awarded the marriage to the first and voided Ubaydillah's despite the consummation: "the Prophet said: when the two walis marry, the first has more right. By analogy: any marriage not validated without consummation is not validated with it, like the marriage in 'idda; and by consensus, the man who deputizes two agents who each marry him to two sisters or to four women: the first marriage is sounder than the second even with consummation; the same holds for the two guardians.
The clarification: the invalidity of the second marriage without consummation does not become validity with it; and consummation in marriage follows taking possession (qabd) in sale: two agents selling a slave, if the second takes possession, the sale belongs to the first; likewise the two guardians. (al-Ikhtiyar 3/121, ad-Durr al-Mukhtar 3/18, al-Hawi al-Kabir 9/120-125, al-Muhadhdhab 2/39, al-Mughni 5/45-47, al-Kafi 3/14, Sharh al-Zarkashi 2/351, Kashshaf al-Qina' 5/63-64, Manar al-Sabil 2/562-563)
The Malikis: the marriage is fixed to the first if he was identified, unless the second takes his pleasure or consummates without knowing of the first marriage: then it is the second's; if he consummates knowing, she is the first's, whether he authorized them together or successively; this is the view of Umar among the Companions, of Ata' among the Successors, of al-Zuhri among the jurists. Proof: Musa ibn Talha married his sister to Yazid ibn Mu'awiya in Syria, and her brother Ya'qub ibn Talha married her to al-Hasan ibn Ali in Medina; al-Hasan, the second, consummated without knowing of the first marriage with Yazid; Mu'awiya awarded the marriage to al-Hasan after the consensus of the jurists of Medina, who veiled all the others; reason: the two contracts are equal (each by an authorized guardian), and the second gains through what attaches to it through consummation: the dower obligation, the 'idda, descent: it becomes firmer than the first; like the two disputants over property: the one who acts alone with his hand prevails; the same for wives.
And the woman, compelled to authorize her guardian (she cannot conclude herself), may authorize one or several; no guardian is bound to wait to learn whether the other contracted: each contracts with one who may have a husband, as the missing woman who may have a husband is preferred over one she may have a husband with, with the indicator that is the other guardian's authorization; but the principles forbid contracting with one about whom one doubts she has a husband, without an indicator grounding the doubt, when she is present and reachable; so the marriage is established here by a ruling, otherwise the guardian's authorization and the suitor's permission would be invalid, as the marriage of the woman in 'idda has no basis establishing it; once established, it is settled by consummation, since nothing else settled it. (al-Ishraf 3/308-311 no.
1145, Jami' al-Ummahat 1/257, adh-Dhakhira 4/253, al-Taj wa-l-Iklil 2/508-509, al-Qawanin al-Fiqhiyya 1/134, at-Tafri' 1/368, As'hal al-Madarik 2/61, Sharh az-Zarqani 3/332, Sharh Mukhtasar Khalil 3/191, al-Tahrir 2/574-575, al-Sharh al-Kabir 3/34-35)
The Shafi'is go into greater detail. Al-Shafi'i: if she authorized each without naming a man, and each married her: "when the two walis marry, the first has more right"; if the witnesses cannot establish which came first, both marriages are dissolved and she has nothing; if one consummates in this state, she has the equivalent dower; the two husbands acknowledge she did not know, like one absent from the contract; if they claim she knew, she is sworn on what she knows; if she acknowledges one of the two, she is bound to him.
Al-Mawardi then distinguishes the cases of the two husbands. If both are without equivalence: both marriages are invalid; without consummation nothing is due from them; if one consummates, he owes the equivalent dower, not the named dower, and no punishment even if he knew he was not an equivalent, since some suspend this marriage on approval: it is a doubt that averts the punishment. If one is an equivalent and the other not: the non-equivalent's marriage is invalid, the equivalent's valid, whether it came before or after; if the non-equivalent consummates, he owes the equivalent dower; if his marriage came first, no punishment, whether he knew or not, and she must ransom herself from his touch (no child attaches); if his marriage came after, if he knew at the time the punishment is due, the doubt having gone, and no 'idda (no child attaches); if he did not know, no punishment but 'idda (the child attaches), and she is forbidden to the equivalent during that 'idda. If both are equivalents, five sub-cases.
First: one preceded and it is known: the first's marriage stands, the second is invalid, with or without consummation: Ali among the Companions, Shurayh and al-Hasan al-Basri among the Successors, Abu Hanifa, al-Awza'i, Ahmad and Ishaq among the jurists; Malik awards the marriage to the first, except for the second's consummation without knowledge of the first marriage: then the second's (Umar, Ata', al-Zuhri, with the same proof of the case of al-Hasan and Yazid); the proofs cited above (the verse, Samura, 'Uqba, the Abu Musa case and the analogy) suffice here. The answer to the argument of the al-Hasan and Yazid case: it is possible Mu'awiya had Yazid renounce and renewed al-Hasan's contract; and the argument of the second made firmer is invalid: what attaches are the rules of consummation under doubt, not those of marriage; and it collapses in the case of the two agents and the two sisters. As for the hand and the lone act: they have no effect in marriage, nor in known properties nor in lineages.
Second: the two marriages simultaneous: both invalid, for the woman cannot have two husbands while the man may have two wives: two husbands upon one marriage lead to the confusion of lineages, which does not exist when the man has two wives; and since neither can be corrected ahead of the other, both are invalid. Then three states of the two husbands: neither consummated: she is free, no dower, and either may renew the contract; one consummated: Malik validates his marriage (the preceding proof suffices), the other is invalid: the one who consummated owes the equivalent dower, she has the 'idda from him, and he may renew the marriage during that 'idda; the other has no dower and no contract before the 'idda ends; both consummated: each owes the equivalent dower, she owes each an 'idda beginning after the previous one's consummation, and neither may renew the marriage before the two 'iddas end, for his 'idda is followed by an 'idda from the other: she is forbidden to him during both; the second to consummate may not marry her during the first's 'idda, but may during his own.
Third: doubt between simultaneity and precedence: both invalid, the contract doubted between validity and invalidity being carried to invalidity, by the principle that there is no contract before certainty of its validity; the ruling then follows the simultaneity case, with or without consummation. Fourth: one preceded but which one is doubted: two kinds. Doubt after a preceding certainty: both marriages are suspended on the expected removal of the doubt by the return of certainty, which may follow doubt; she is then married to an unknown husband: she is barred from husbands, and neither may consummate before certainty of being the first. Doubt concurrent with the contract, without preceding certainty: no suspension, no return of certainty being expected: both are invalid; does their invalidity require the judge's dissolution?
Two views.
Fifth: one preceded and both husbands claim to be the first: if there is proof for one, it is acted on and ruled; if the contracting guardian is one of the two witnesses he is not accepted (testimony about one's own act), and the other guardian, if he witnessed this contract, is accepted; with no proof for either: if both claim to know which came first, or neither claims (absent from the contract and ignorant of it), the two husbands swear against the two guardians, who are the respondents; the guardians' truthfulness is not weighed; if they both swear, both marriages dissolve; by the oath itself or by the judge's ruling: two views, as in sales; if one swears and the other refuses to swear (nakil), the judge dissolves, and on one view dissolution occurs only through his ruling, the refusal not preventing the refuser from being truthful; the marriage is then given to the swearer against the refuser; if the refuser consummates, the moment is examined: after his refusal or his rival's oath he is a fornicator, the punishment is applied, no child attaches and no 'idda for her; the woman, if she knew the refuser's state at the time of consummation, is a fornicator and punished, with no dower; if she did not know, no punishment and the equivalent dower; if the refuser consummated before his refusal and the oath, no punishment for him or her, the marriage doubt remaining:
he owes the equivalent dower, she has the 'idda, the child attaches, and she is forbidden to the swearer until the refuser's 'idda ends; no maintenance during the 'idda of either: neither from the swearer, for she is forbidden to him though his wife (she has been touched by another), nor from the refuser, for she is not his wife though in his 'idda; if she is pregnant, is maintenance due? Two views. (al-Hawi al-Kabir 9/120-125, al-Muhadhdhab 2/39)
The Hanbalis repeat: authorization to one fixes the guardian, to all validates each; the most knowledgeable and most pious first, then the oldest (the hadith of "step forward, step forward"); the dispute is settled by lots, and whoever steps ahead of the drawing with the authorization validates his marriage. If the two equal guardians marry her to two men and the first is known: the marriage is the first's, the second's contract invalid, on the hadith of Samura and 'Uqba (related by Abu Dawud): the first has no voider, the second married another's wife, as if he knew. If the second consummates without knowing she has a husband, they are separated for the invalidity of his marriage; his consummation is a consummation under doubt: she has the equivalent dower, she returns to the first, her husband, and she does not become permissible to the first again before the end of her 'idda from the second's consummation, for the clearing of her womb. (al-Mughni 7/45, al-Kafi 3/13-14, Sharh al-Zarkashi 2/351, Kashshaf al-Qina' 5/63-64, Manar al-Sabil 2/562-563)
If the woman is in a place without judge and without wali: the Malikis pass the wilaya to the generality of Muslims: any man concludes, including the maternal uncle, the maternal grandfather and the maternal brother, with her consent when she is known free of impediments; the husband belongs to it. Marriage through this general wilaya is valid for a humble woman even with a specific guardian present (father, son, uncle) who does not compel; never revoked, long or short, consummated or not, no disgrace reaching her; the humble woman being she who lacks beauty, wealth, merit and lineage, with the same definitions; the question remains whether any Muslim may conclude with the father present: two views. Marriage of a woman of rank through the general wilaya with a specific non-compelling guardian is valid if the husband consummates and time lengthens (a period of childbearing like three years); with a compelling guardian present, the marriage is corrupt and revoked forever, even with his approval.
(al-Taj wa-l-Iklil 2/495-496, Mawahib al-Jalil 5/63-64, al-Sharh al-Kabir 3/20-22, al-Tahrir 2/556, hashiyat al-Sawi 4/447-449)
The Shafi'is: al-Nawawi relates that Yunus ibn Abd al-A'la transmitted from al-Shafi'i: the caravan woman who has no wali and delegates a man to marry her: it is valid; but it is not a view on the validity of marriage without a wali: Abu Asim al-Abbadhi cited this text in Tabaqat al-Fuqaha, some school companions rejecting it and others accepting it: "it is an arbitration, and the arbitrator stands in the judge's place. The author of the Hawi mentions three views when the woman is in a place without wali or judge: she does not marry; she marries herself out of necessity; she delegates a man. al-Shashi relates that the author of the Muhadhdhab said: she appoints a mujtahid jurist as arbitrator, which is correct on the sounder view of the permissibility of arbitration in marriage, provided he is fit for judicature, a condition weighed here. The school's choice: the marriage is valid if she delegates a just man, even a non-mujtahid, which appears in Yunus's transmission, he being trustworthy.
(Rawdat al-Talibin 4/689, al-Najm al-Wahhaj 7/66, al-Hidaya ila Awahim al-Kifaya of al-Asnawi 20/475)
Ibn al-Mulqin: without wali and without judge, the choice is that she delegate a just man even a non-mujtahid, or appoint a jurist arbitrator, on the sounder view of the permissibility of arbitration in marriage as in judicature; the husband's arbitration is also required, and arbitration is permitted even with a judge present on the sounder view: it is therefore not limited to places without a judge. ('Ajalat al-Muhtaj 3/1202)
Al-Mawardi: the woman without a suitable wali in a town without judge who wants a husband: two views: she does not marry until she finds a wali by ruling or by kinship, like the woman without witnesses; or marriage is permitted her by necessity, the wali being wanted to repel the disgrace of marriage without equivalence; the witnesses, for their part, are contracted to preserve the lineages. If marriage is permitted her, two views: she concludes herself, the wali's absence having removed his authority; or she delegates a man in place of the wali, so the contract keeps its count; the two views derive from his two views on the two disputants who appoint an arbitrator: does his ruling bind them like the judge's? (al-Hawi al-Kabir 9/50)
The Hanbalis: Ibn Qudama: without wali or holder of authority, Ahmad has what indicates that a just man marries with her consent, in his words on the village's dihqan: he marries the one with no wali observing equivalence and dower if there is no judge in the small town. Ibn Aqil: some companions inferred from it that marriage does not depend on a wali; but Ahmad's explicit text prevents that: this view is limited to the wali's and sultan's absence, Ahmad having set the condition of no judge in the small town; requiring a wali here would prevent marriage altogether, like requiring an ally from one who has none. It is also related that marriage is concluded only by a wali, the generality of the reports saying so.
(al-Mughni 7/14) Al-Mirdawi: "third: the wali: no marriage without a wali": that is the doctrine, the wali is a condition of validity on which the companions stand, an explicit text; az-Zarkashi says they do not differ over it; and it is also related that the wali is not a condition, the author of the text and a group limiting it to the case of excuse (the wali's and sultan's absence). (al-InSaf 8/66) Al-Bahuti: if the wali is altogether absent, or her wali refuses with no other guardian, the place's authority holder marries: the town governor, its chief, the caravan leader; failing him, a just man with her consent; Ahmad, on the village's dihqan, says he marries the one with no wali observing equivalence and dower if there is no judge in the small town; and if the land's judge refuses to marry except through injustice (an undue fee, having enough in the treasury house, or asking more), his presence counts as his absence; Shaykh Taqi al-Din says this meaning is apparent. (Kashshaf al-Qina' 5/55)
The Hanafis have nothing contrary: the adult, sane woman may marry without her wali's authorization, even with the wali and the judge present; failing both, she concludes herself, as detailed above.
The jurists differ: may the woman who converted to Islam at a man's hands make him her wali for her marriage contract?
The Mudawwana al-Kubra treats of the woman who converted at a man's hands, or whose father or grandfather converted at his hands (4/164-165): may the guardian of favor (wali an-ni'ma) marry? Malik answers that yes: he marries her of himself and takes charge of her contract if she consents. If it is only her father or grandfather who converted at his hands, or she herself: the one who converted at his hands falls under Malik's words on the marriage of the humble woman: his marriage to her is permitted; but if her father converted and it grew old until she has standing, wealth and pride in Islam, to the point that people vie for her, he does not marry her: he is like a stranger. May the guardian of favor marry his ward who has relatives (uncles, cousins, brothers) but no father, virgin or previously married, with her consent?
Malik: in my view he is among her family's men of judgment: he may marry her if he is pious; the mawla with a standing in the tribe marries the Arab woman of his people if he has the standing and the judgment; and he is among her men of judgment if there is no father or wasiyy.
Ibn Yunus reports from the Mudawwana, from Ibn al-Qasim: likewise, the woman who converted at his hands: his marriage to her is permitted; but the one through whom her father converted, if it grew old until she has standing, wealth and pride in Islam to the point that people vie for her, does not marry her: he is like a stranger.
Malik was asked: men of the mawali take in Arab boys whom the plague strikes, rear them to adulthood, and among them a young girl whom one wishes to marry? Malik: it is permitted; who would have more rights over her than he? The shaykh specifies: at her majority and with her consent, and if she has no father; with a father, no marriage without his consent, unless the father places the matter in his hand; and similar in Muhammad's book. From the Mudawwana again: any woman with standing, wealth and regard is married only by her wali or the sultan.
Malik was asked: a woman of rank married without her wali's order, who delegated a man, and whose wali then approved: is the marriage established? He suspended the answer. Ibn al-Qasim: if the wali approves it at near range, it is valid, with or without consummation; if he wishes to annul it before consummation, it is his right and he annuls it; if her stay lengthens and she bears children, I would confirm it if correct, without annulment; Malik and the reporters said so. Sahnun reports that another said it is not valid even with the wali's approval, because a non-wali concluded it.
The Hanbalis: no wilaya for the one through whom the woman converted, nor for the multaqat: no lineage and no wala'; he does not take charge of her marriage on the most widespread view, with a narration giving it to him as her heir.
Among the Hanafis, the woman concludes her contract herself and has no need of this; and the Kitab al-Asl (al-Mabsut) of Muhammad ibn al-Hasan relates: if a woman of the protected people (dhimmi) converts at a man's hands and has a young child from a dhimmi man, and she entrusts her wala' to the one through whom she converted, her wala' is his; her child's wala' does not go to him according to Abu Yusuf and Muhammad, the father not resembling the mother in this; on the analogy of Abu Hanifa's view she is like the freed woman, and the child's wala' goes to him.
In practice: for the majority of the schools, the wali is a condition of validity of a woman's marriage whatever her status; the Hanafi school lets the adult, sane woman conclude her own contract, Abu Yusuf and Muhammad ibn al-Hasan suspending that contract on the wali's approval when he exists. The five causes of wilaya are kinship, ownership, wala', the testament and authority. When the guardian is absent or unjustly refuses, the wilaya rises to the next guardian, then to the judge or the sultan; without judge or wali, the Malikis and Hanbalis accept that a just man conclude the contract with her consent. Between equal guardians, priority goes to the most knowledgeable and the oldest, and drawing lots settles disputes.