Is a guardian's consent required for marriage?

Dear Hadi,

Dear Wali Worries,

Wa’alaikum assalam.  You raise a great question, and we’ll do our best to give an overview of our thoughts on this complex and nuanced issue, once again stressing that this is by way of advice and opinion, and not by way of fatwa.

To frame our thoughts on the issue, we would like to stress that in Islamic jurisprudence, the function of guardianship -- and the responsibility of the guardian (or wali, in Arabic) -- is to safeguard the interests of those who are not capable of doing so for themselves.  In the context of marriage, this has been mostly discussed in relation to young women, and we’ll focus on that, although our comments will be generally applicable.

Before beginning the main discussion, we would like to dispense with the notion of guardianship which gives the wali the authority to choose the spouse for his ward (typically, his daughter), leaving her to abide with this choice even against her wishes.  We will not dwell on this, as it is sufficient to note that the daughter’s approval is a necessary condition, and that by general juristic consensus, coercion in the choice is not allowed.  In Sahih al-Bukhari, in his book on coercion, Imam Bukhari has a chapter heading titled, “Marriage under Coercion is Invalid” and in the chapter, he reports a hadith where the Prophet (pbuh) invalidated such a marriage.

The more nuanced issue is the possible authority of the guardian to veto the marriage choice of a son or daughter, and that without the guardian’s approval, the marriage would not be considered legitimate.

Once again, this issue does not much affect prospective grooms, and juristic discussions tend to focus on the brides.  From a solely classical Islamic jurisprudence perspective, three of the four sunni schools of thought (Hanbali, Maliki, and Shafi’i) require approval of the proposed bride’s guardian if she has not previously been married.  However, in contrast to this, the Hanafi school of thought allows the proposed bride to contract her own marriage without the approval of a guardian.  Similarly, Shiite jurisprudence generally does not require the approval of the wali.

For those curious, the Hanafi position, for example, relies on Quranic verses such as verse 50 in surat al-Ahzab, legislating marriage options for the Prophet (pbuh), which include: “and any believing woman who offers herself freely to the Prophet and whom the Prophet might be willing to wed…” In this verse, a woman marries herself off, with no wali mentioned.  They also rely on hadiths such as “A single woman has more right to her person than her guardian…”(Sunan Abu Dawud).

For those even more curious, the following link provides a nice summary of the classical opinions, their justifications, and some of the point-counterpoint debate between them: Marriage without a Guardian according to the Hanafi Madhab & Other Schools of Thought.

However, we do not need to go into the details of the arguments each school of thought has for its position. For our purposes, it is sufficient to note that a major classical school allows the bride to contract her own marriage without the approval of her guardian.  Therefore, this position in no way represents “innovation” or “Westernization” of Islam, but is rather a well-grounded classical opinion. 

In looking at the practical implications of these different positions across the Muslim world, one can find varying implementations, with the Hanafi position well-represented among them.  In Egypt, which generally follows the Hanafi school, a wali is not required.  Whereas in Syria, the law requires a guardian, but limits his authority, disallowing him to unfairly block or delay the bride’s marriage. In Nigeria, a guardian is also required.  In Pakistan, a Supreme Court case involving Saima Waheed concluded that an adult Muslim woman can marry without the consent of her guardian.  Similarly, in Morocco, an adult (over 18) Muslim woman need not have a wali's consent in order to enter into marriage.

Of course, the notion of a guardian is rooted in a desire to protect the interests of one’s child, particularly daughters who historically have been at a disadvantage in marital relationships.  While we strongly believe in both sons and daughters seeking their parents’ input in regards to marital choices (see more on this below), we lean heavily toward the Hanafi position as well, and don’t believe securing a wali’s approval is required Islamically or even needed practically in the American Muslim environment, and God knows best. 

Once again, we stress that this is not an “innovation” (or bida’a) to accommodate Islam to our circumstances, but is rather a particular choice of an established classical position in jurisprudence.  We make this choice because we feel it is more harmonious with the age in which we live.  This same opinion was voiced by the great 20th century scholar Sheik Muhammad al-Ghazali, of Al-Azhar University.  In his book, Issues of Women between Static and Dynamic Traditions (title and text translated from the Arabic), he titles a chapter that deals with marriage: "The Woman is Free in Choosing her Husband."  He relates that on a visit to North America, he expressed his opinion that a woman is free to choose her husband and to contract her own marriage if she desires.  He noted that some in the audience were unhappy with it, and that a Canadian man engaged him in conversation following his talk to express his disagreement, saying that a woman cannot contract her own marriage -- that this would go against the rules of religion.  Sheik Al-Ghazali told him, “Your opinion is against this, and you are following in this some of the mathhabs in fiqh, but I prefer the other opinion, and I think it is more in keeping with the mentality of Europeans and Americans, and that this opinion is exercised in legitimate Islamic circles, and that it is in the best interests of Islam for these circles to expand.”

Now that we have expressed our strong leaning toward the idea that American Muslim young people should make their own choices and act as their own agents in marriage, we need to stress our equally strong feeling that the opinion of parents/guardians should be sought and seriously considered, both by the prospective couple and by the Islamic entity or person performing the wedding ceremony.

Parents have so much more life experience and may see issues of compatibility or incompatibility that their young adult children may not have insight into.  For this reason, we do believe that parental feedback is generally a very positive and important step in deciding who one marries. 

That being said, we have heard of several instances where the parents do not approve of, or respect their grown child’s choices based on unreasonable criteria – we have heard unacceptable things from parents, such as “she’s not even Pakistani,” “yes, he’s Egyptian, but his skin is too dark,” “he’s not a doctor,” or even “but his ears are too big.” 

Giving parents such as these the authority to block their adult child’s marriage would be a mistake, in our opinion.  While we believe parental feedback is invaluable, we also believe it must be focused on those issues that are truly important when it comes to marriage and the future raising of children, namely compatibility in religion and decency of character. 

This is well in keeping even with the classical juristic opinions which mandate the approval of a wali, since the role of the guardian is to guard the best interests of their ward, and not to secure a marriage that conforms to their own desires, biases or prejudices.  If they behave in that way, they essentially forfeit the role they have been given.  This is nicely expressed by the scholar ‘Abd al ’Ati in his book Family Structure in Islam, when he discusses the issue of guardianship in marriage.  He relates several opinions from various scholars, with one opinion stating “… but in no case may the guardian …consider anything but the best interest of his ward.  If he does so … his action according to all schools is haram.”  Another opinion regarding the rights of the guardian states “…it is his duty to exercise this right in her best interest.  He is enjoined to take her wishes into consideration…Should a guardian’s religious conscience fail him, or should he act against the interests or wishes of the ward, she, if a major (meaning reached young adulthood) has a religio-legal right to override his decisions.” (The Family Structure in Islam, Hammudah ‘Abd al’Ati, American Trust Publications 1995, pp. 75-76).

One last caution, however, is that while we lean toward the Hanafi position, we do believe that the Imam performing the wedding has an obligation to explore the objections of parents.  If, in his judgment, the objections are valid, and the situation before him is, for example, that of an impetuous young person rushing into an unwise marriage just under the lure of attraction or infatuation, then the Imam should counsel and possibly refuse to perform the ceremony if it goes against his conscience to officiate such a union.  In that vein, we point out that in addition to the above, one objection which we consider valid is the objection of parents when their son wants to marry a non-Muslim woman.  Although technically allowed in a juristic sense, we do not advise this, and have discussed this issue in some detail in a prior column: Marrying a non-Muslim.

We know this has been a long answer to your question, but we feel the topic deserves this sort of depth, since it is, as you mentioned, a frequent issue in Muslim marriages.

In peace.