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No Marriage Without a Guardian
The woman is not entitled to give herself in marriage without the consent of her family. Similarly, her guardian is not entitled to conclude her marriage without consulting her. Islam takes a moderate course by insisting that there should be participation from the woman, her guardian and family when it comes to her marriage. The woman has the full right to express her wish, and no one has the right to force her to marry. Her guardian is the one who should conclude the marriage contract after her consent. In this way, neither the woman nor her guardian has the right to conclude the marriage contract without the consent of the other. Certainly, this does not limit the freedom of the woman to choose her husband; rather, this reflects the interest of Islam in fulfilling complete tranquility in marital life. It also indicates the keenness of Islam on guaranteeing that there will be participation and marriage relationships between two families that are attached to each other by strong and friendly bonds witnessed and blessed by Allah The Almighty.
Marriage is not just a relation between a man and a woman that emerges in a social vacuum; rather, it is a relationship between two families that is based on affection, mercy and cooperation. Hence, preventing the woman from concluding the marriage contract alone is a consideration of her family’s right to establish a strong friendly relationship with the husband’s family because of the marital relationship.
Furthermore, the texts of the Quran and the Sunnah unequivocally prove that the woman has no right to conclude the marriage contract alone. Islam honored women and gave them the right to choose their husbands, but not secretly or without informing their families.
Prophetic Hadeeths show us how participation between the woman and her family in choosing her husband should be:
- On the authority of Abu Hurayrah, may Allah be pleased with him, that the Prophet, 
, said: “The unmarried woman should not be given in marriage until she is consulted, and a virgin should not be given in marriage until her consent is sought.” He was asked, “O Messenger of Allah, what is her consent?” He replied: “If she remains silent.” [Al-Bukhari and Muslim]
, said: “The unmarried woman should not be given in marriage until she is consulted, and a virgin should not be given in marriage until her consent is sought.” He was asked, “O Messenger of Allah, what is her consent?” He replied: “If she remains silent.” [Al-Bukhari and Muslim]- If the woman refuses to marry a particular man, her guardian has no right to force her to marry him. In this regard, the Prophet, , said: “The unmarried woman has more right concerning her marriage than her guardian, and the permission of a virgin should be sought [regarding marriage], and her silence is her permission.”[Muslim] Nevertheless, this does not mean that a woman has the right to give herself in marriage without the consent of her guardian; however, she takes the precedence in case of a disagreement.
, said: “The unmarried woman has more right concerning her marriage than her guardian, and the permission of a virgin should be sought [regarding marriage], and her silence is her permission.”[Muslim] Nevertheless, this does not mean that a woman has the right to give herself in marriage without the consent of her guardian; however, she takes the precedence in case of a disagreement.- On the authority of Ibn ‘Abbaas, may Allah be pleased with him, that a virgin came to the Prophet, , and mentioned that her father had given her in marriage to a man against her will. Thus, the Prophet, , gave her the right to choose whether to stay with her husband or to be separated from him. [Ahmad, Abu Daawood and Ibn Maajah]
, and mentioned that her father had given her in marriage to a man against her will. Thus, the Prophet, , gave her the right to choose whether to stay with her husband or to be separated from him. [Ahmad, Abu Daawood and Ibn Maajah]The Sunnah also asserted that any marriage contract that is concluded without the guardian’s consent is certainly invalid:
On the authority of Abu Moosa, may Allah be pleased with him, that the Prophet, , said: “[There can be] no marriage without a guardian.”[Ibn Hibbaan and Al-Haakim - Saheeh]
, said: “[There can be] no marriage without a guardian.”[Ibn Hibbaan and Al-Haakim - Saheeh]- On the authority of ‘Aa’ishah, may Allah be pleased with her, that the Prophet, , said: “Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. If the marriage is consummated, then she is entitled to the dowry because she allowed the man to be intimate with her. If they disagree, then the ruler is the guardian of the one who does not have a guardian.”[Ibn Hibbaan, Al-Haakim]
, said: “Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. If the marriage is consummated, then she is entitled to the dowry because she allowed the man to be intimate with her. If they disagree, then the ruler is the guardian of the one who does not have a guardian.”[Ibn Hibbaan, Al-Haakim]- The Prophet, , said: “It is unlawful for a woman to assume a marriage contract of another woman or to assume her own marriage contract.”[Ibn Maajah and Ad-Daaraqutni]
, said: “It is unlawful for a woman to assume a marriage contract of another woman or to assume her own marriage contract.”[Ibn Maajah and Ad-Daaraqutni]- Imaam Maalik 
narrated in Al-Muwatta’ that ‘Umar ibn Al-Khattaab, may Allah be pleased with him, said: “A woman should not be given in marriage without the consent of her guardian, or one of sound judgment from her family, or the ruler.”
narrated in Al-Muwatta’ that ‘Umar ibn Al-Khattaab, may Allah be pleased with him, said: “A woman should not be given in marriage without the consent of her guardian, or one of sound judgment from her family, or the ruler.”Announcement and Witnesses
The purpose of having witnesses to the marriage is to announce it. Hence, if the two spouses agreed with the witnesses that they should keep their marriage secret, then the marriage contract would be invalid because concealing the marriage is equal to the absence of the witnesses or it annuls the purpose of their presence.
Islam made the announcement of marriage obligatory, and recommended us to celebrate marriage and announce it by playing the duff and showing joy. Members of the two families should participate in this celebration, as narrated on the authority of ‘Aa’ishah, may Allah be pleased with her, that the Prophet, , said: “Announce the marriage, make it in mosques and play the duff [to announce it].” [At-Tirmithi]
, said: “Announce the marriage, make it in mosques and play the duff [to announce it].” [At-Tirmithi]The following are some Hadeeths that also state that announcing the marriage is obligatory:
- The Prophet, , said: “Announce the marriage.”[Ahmad, Al-Haakim - Saheeh]
, said: “Announce the marriage.”[Ahmad, Al-Haakim - Saheeh]- It was narrated on the authority of Muhammad ibn Haatib Al-Jumahi, may Allah be pleased with him, that the Prophet, , said: “The difference between the lawful and unlawful marriage is the beating of the duff and the public announcement of the marriage.” [At-Tirmithi, An-Nasaa’i and Ibn Maajah]
, said: “The difference between the lawful and unlawful marriage is the beating of the duff and the public announcement of the marriage.” [At-Tirmithi, An-Nasaa’i and Ibn Maajah] Imaam Ibn Al-Qayyim differentiates between the Sharee‘ah-approved marriage and the invalid marriage, saying,
differentiates between the Sharee‘ah-approved marriage and the invalid marriage, saying,Islam added some conditions to marriage in addition to the contract to eliminate any resemblance between it and certain forms of prostitution and adultery. These conditions include:
- Announcing the marriage, either by having witnesses, or by avoiding secrecy, or both.
- Permission of the woman’s guardian and preventing the woman from concluding the marriage contract.
- Islam recommends celebrating marriage such that it even recommends playing the duff, announcing it with a loud voice and holding a banquet.
- The dowry
- Prohibiting the woman from giving herself to any man other than the Prophet . The rationale behind prohibiting this act is that it would be exploited in committing adultery under the guise of marriage. It was narrated in a tradition that, “A woman must not conclude her own marriage contract, because only adulteress conclude their own marriage contract.” An adulterous woman would not mind saying to a man, “I give myself to you in marriage,” secretly, without informing her guardian and without witnesses, a banquet, a duff or an announcement. It is very obvious that the evil of adultery is not precluded by a woman simply saying to a man, “I give myself to you in marriage, or I permit you to do such-and-such an act with me”. If this had been true, then it would have been very easy for both men and women to do so.
. The rationale behind prohibiting this act is that it would be exploited in committing adultery under the guise of marriage. It was narrated in a tradition that, “A woman must not conclude her own marriage contract, because only adulteress conclude their own marriage contract.” An adulterous woman would not mind saying to a man, “I give myself to you in marriage,” secretly, without informing her guardian and without witnesses, a banquet, a duff or an announcement. It is very obvious that the evil of adultery is not precluded by a woman simply saying to a man, “I give myself to you in marriage, or I permit you to do such-and-such an act with me”. If this had been true, then it would have been very easy for both men and women to do so.This is how the Sharee‘ah exalts the marriage contract and eliminates all things that would make it similar to adultery.
A Temporary Contract and Adultery in Disguise
The two parties of a secret marriage contract agree upon concluding it, that it is a temporary contract until the man can afford to go to the woman’s family and propose to her officially. Consequently, the first marriage is intended to be temporary. Most probably, the parties of this marriage face something that prevents them from announcing the official marriage in the future, meaning, the man does not intend to propose to the woman.
Many malicious young men have exploited the girls’ ignorance and naivete and convinced them of this marriage while they (those young men) do not intend marriage in the first place. They only want to conclude a contract, which they do not actually intend, so as to have sexual relationships with the girls without bearing the responsibilities of a Sharee‘ah-approved marriage.
Such a marriage is not valid because it is not intended; thus, it takes the ruling of the Muhallil marriage, which is prohibited because it is a marriage whose two parties conclude a contract that they do not intend in reality, and that is why it is invalid under the Sharee‘ah.
Furthermore, this marriage is a hidden means of committing what is prohibited in itself; namely, adultery. Accordingly, this marriage is unanimously prohibited because its aim is prohibited and the one who commits it is a deviant, immoral and sinful person.
The fact that such a person commits this crime secretly makes it even more evil because he threatens secure families and spoils their honor while they cannot know or guard themselves against him.
Hence, the Sharee‘ah ordered that the thief’s hand must be cut because he steals secretly, while the hand of the plunderer and the embezzler should not be cut. Also, whoever assassinates somebody must be killed as ruled by Sharee‘ah, even if he murders someone who is not his equal (a slave or a non-Muslim for example). The same ruling applies to whoever borrows something and then denies doing so. His hand should be cut, because people cannot be on their guard against him and because he is considered a thief.
The Arabs did not even know this strange type of marriage during the pre-Islamic era, as they were people of chivalry and manhood. Moreover, it was not legalized by Islam and it never existed among the Muslims. Before today, we have never seen people seeking secret marriage; rather, we used to see people seeking marriage publicly and sociably.
We believe that nobody would like his sister, daughter or even son to marry secretly because this is a deviation from the human sound disposition and the objectives of human social life. Secret marriage also contradicts religion and virtuous morals. It is a form of deception and cunning, and it mocks the signs of Allah The Almighty, plays with the Sharee‘ah and makes lawful what is unlawful.
A relationship with such evil qualities is certainly rejected by all wise people, whereas the enemies of Islam may use it to attack Islam and harm it.
Obviously, Islam is innocent of all such religious innovations that resemble the tricks of the Jews concerning the legalization of what is unlawful. We see many youth of both sexes caught in these traps, hence, callers to Islam and educationalists as well as scholars are obliged to do their best to clarify the truth, and rebuke those who are rude, malicious and deviant in their way. They are also obliged to treat the causes of this phenomenon to ensure that whoever perished would perish upon evidence, and whoever lived would live upon evidence.
