Monday, January 23, 2006

Women conducting their own marriage contracts

Question: hanafi fiqh says that if a girl is sane and has reached puberty she does not need a wali in order to get married. can u tell me what evidence this is based on? my second question is, what do the other three schools of thought with regards to a nikah being valid or not without the presence of a wali.

Answer: Actually, it is not entirely accurate to say that hanafis allow a woman to marry without a wali (guardian). What they say is that a sane women that has reached puberty is her own wali for marriage. Just like she can buy and sell her own goods, and noone is allowed to do this without her permission, she is entitled to conduct her own marriage contract. The proof is essentially that the Quran relates the conduction of the marriage contract to her in several places. It is a long debate, but it really comes back to several conflicting evidences, and that Hanafi's do not accept to abrogate Quranic statements by singularly narrated hadiths. An example of a Quranic statement that relates the marriage contract to the woman is:
وإذا طلقتم النساء فبلغن أجلهن فلا تعضلوهن أن ينكحن أزواجهن
which's meaning could be translated as, "If you divorce the women, and they reach the end of their ^iddah, then do not prevent them from marrying their husbands." I.e. after divorcing them, do to prevent them, and this is a general order for anybody not to prevent them, including a waliy. It also states her as the one marrying, not "being married".