Nikah (marriage in fiqh)

In the lexicon, nikah means intercourse or the contract without intercourse, and each school defines it in its own terms. The jurists differ on its literal sense in three views, and the difference changes some rulings. This part is partial. ¹

Nikah is, in the lexicon, a verbal noun of nakaha; "nakaha al-mar'a" means he married her, and also he had intercourse with her. ¹ The Hanafis define it as a contract that gives enjoyment of a woman by intention; the Malikis as a contract making lawful the enjoyment of a woman who is not forbidden to the man. ¹ The Shafi'is define it as a contract that carries permission of intercourse by the words nikah or tazwij, and the Hanbalis as the contract of tazwij. ¹

The jurists give three views. The first is that the word is literal for intercourse and figurative for the contract; this is the sounder Hanafi view. ^{1 2} The second is that it is literal for the contract and figurative for intercourse; this is the Maliki view, the Shafi'i view in its sounder form, and the sounder Hanbali view. ² The third is that it is literal for both, whether as a shared word or a shared meaning; this is a Hanafi view, Bahram's view among the Malikis, and a view among the Shafi'is and Hanbalis. ^{2 3}

The disagreement changes some rulings. In the Hanafi view, and the sounder Hanbali view, a man who commits zina with a woman makes her forbidden to his ascendants and descendants; the Shafi'is and, by the stronger view, the Malikis hold that zina does not create affinity. ³ If a man swears not to marry, or ties a divorce to marriage, the oath is broken and the divorce takes effect by intercourse according to those who take nikah as intercourse, and by the contract according to those who take it as the contract. ⁴ The Hanafis distinguish: if a man says to his wife, "If I marry you, you are divorced," it applies on intercourse, but to a stranger it applies on the contract. The Shafi'is say that an oath not to marry is broken by the contract, not by intercourse, unless he intended intercourse. ⁴

Khitba is the request for a woman in marriage; its technical sense does not depart from the lexical one, and it comes before nikah. ⁴ Sifah is illicit intercourse; it is the opposite of nikah, because intercourse in sifah is forbidden and in nikah lawful. ⁴ Talaq is the ending of the marriage tie by the word of divorce or similar, or, in the Hanbali wording, the release of the tie or part of it. ^{4 5}

Marriage is established by the Qur'an, the Sunna and consensus. The Qur'anic basis is in the surah of al-Nisa' (on marrying what is good among women) and the surah of al-Nur (on marrying the unmarried); the Sunna basis is the hadith of Ibn Mas'ud addressed to the young men who can afford marriage. Muslims agree that it is lawful, and some jurists say it began in the time of Adam and continues in Paradise. ⁵ Its wisdom has several sides: preserving offspring, releasing semen that would harm the body if held back, and the enjoyment of pleasure, which alone remains in Paradise where there is no procreation. ⁵ Al-Babarti said that the demands of the law, of reason and of nature all meet in marriage: the law's demands are plain; reason wants a person's name to survive through his line; and nature seeks lawful enjoyment, which is rewarded when done under the law. ⁵ Al-Sarakhsi listed religious and worldly benefits: the care and maintenance of a wife, guarding oneself from zina, multiplying believers, and the Prophet ﷺ's pride in his community on the Day of Resurrection. He explained that God decreed the continuance of the world, that continuance comes by procreation, that this comes by intercourse, and that the law made marriage the lawful route, since seizing women by force causes strife and intercourse without ownership confuses lineage. ^{5 6} A report attributed to Umar says he married women without need, wishing that God would bring forth from him someone through whom the Prophet would outnumber the prophets on the Day of Resurrection. ⁶

The jurists apply the five categories to marriage: obligatory, recommended, disliked, forbidden and permitted, with detail by school. ⁶ Obligatory. The Hanafis say marriage is obligatory when desire is so strong that one fears falling into zina, and becomes a duty when zina can be avoided only by marrying. The obligation requires the capacity to pay the dower and maintenance, and Ibn 'Abidin, following al-Bahr, adds that the man must not be an oppressor. ^{6 7} The Malikis make it obligatory for one who desires marriage and fears zina, and also where marriage would lead to maintaining the wife from unlawful income, or to failing to maintain her while her right to be told must be respected. ⁷ The Shafi'is make it obligatory where a man fears sin and marriage is the only means of protection while he is able. Ibn Hajar al-Haytami recorded a view that it is obligatory on one who fears zina. Marriage vowed by oath is obligatory on the preferred view, though al-Ramli held that a vow does not bind. Some said it is a communal duty (fard kifaya). ⁷ The Hanbalis make it obligatory for one who fears zina if he does not marry, and it takes priority over an obligatory pilgrimage. It is not discharged by one marriage: it must be sustained through life, and the contract alone is not enough; intercourse is required. A slave woman may satisfy the duty in place of a free woman. A son must marry if his parents, or one of them, order it, out of duty to them. ^{7 8} Recommended. The Hanafis hold that it is a strongly affirmed sunna, so one who abandons it sins, and one who intends offspring and chastity is rewarded. If the man lacks the means of dower and maintenance, the duty falls, and so does the sunna. ⁸ The Malikis recommend it for one who desires it and does not fear zina, provided he has means; Al-Hattab added that he must not fear distress. ⁹ The Shafi'is recommend it for one whose soul craves intercourse and who has the means of dower, clothing and the day's maintenance, even if he is devoted to worship, for chastity, offspring and lineage. The Hanbalis make it a sunna for one with desire who does not fear zina, even if poor, citing the Prophet's marriage of a man who had only an iron ring. ^{9 10} Ahmad is reported to have said that a man may borrow in order to marry, and that the engagement of one with desire to marriage is better than voluntary acts of worship. ¹⁰ Disliked. The Hanafis hold it disliked in the sense of near-prohibition where injustice is feared. If fear of zina conflicts with fear of injustice, the second prevails, since the wrong to a person is a right of the servant. The Malikis dislike it for one who has no desire and would be distracted from obligatory worship. The Shafi'is dislike it for one without need and without means. A view among the Hanbalis dislikes it for one without desire. ^{11 12} Forbidden. The Hanafis hold it forbidden where injustice is certain, since the purpose of marriage is lost when harms outweigh benefits. The Malikis forbid it where there is no fear of zina and marriage would harm the wife through inability to have intercourse, inability to maintain her, earning by unlawful means, or delaying prayer. The Shafi'is forbid it for one whose marriage is invalid without need, such as a foolish person. ¹¹ The Hanbalis hold that a Muslim who enters the territory of unbelievers under safe-conduct may not marry there except in necessity, and may marry in a Muslim army. ¹² Permitted. The Hanafis permit it where a man fears an unlikely inability to meet its obligations; Ibn 'Abidin held that one who seeks only the satisfaction of desire, and fears nothing, gets no reward and it is permitted. The Malikis permit it for one who cannot father children and has no desire, such as one impotent, castrated or aged. The Hanbalis permit it for one who has no desire, such as the impotent, the sick or the old. ^{12 13}

The Hanafis hold that marriage is close to worship. Shafi'i jurists disagreed on whether it is worship, the school's view being that it is, since the Prophet commanded it, and that its validity from an unbeliever does not disprove this, as an unbeliever's worship is not valid. Al-Mawardi and al-Nawawi ruled that one who intends a righteous child or chastity does a deed of the Hereafter and is rewarded; otherwise it is permitted. ¹⁴ Shafi'i jurists held that the Prophet's own marriages were an act of nearness to God for their hidden benefits, which only women could know. ¹⁴ On whether marriage outranks voluntary worship, al-Kasani reports that Hanafis who call it obligatory hold that engaging in it is better than voluntary worship, and those who call it recommended rank it higher for three reasons: it is a sunna, the Prophet practised and persisted in it, and it leads to lofty aims such as guarding oneself and one's wife and bringing forth children. ^{14 15} The Malikis hold that one who desires marriage and does not fear distress is recommended to marry even if it keeps him from voluntary worship. The Shafi'is hold that devotion is better than marriage if marriage would distract him from it, and that learning is included. The Hanbalis hold marriage better than voluntary worship, while Abu Ya'la al-Saghir made it better only when its known purposes are intended; a view from Ahmad prefers voluntary worship. ¹⁵

Perpetuity. The jurists hold that marriage is a perpetual contract that cannot be time-limited, whether by the word of temporary enjoyment or by any other word, and whether the term is long or short, known or unknown. ¹⁵ If a time limit is concealed in the husband's intention and not stated, the majority hold the marriage valid but disliked (Hanafis, Malikis on the preferred view, Shafi'is), while the Hanbalis in the sound view of their school hold it invalid. ¹⁶ Binding nature. The contract binds both husband and wife, according to the Hanafis, Malikis, the sounder Shafi'i view and the Hanbalis. The contrary Shafi'i view holds that it is permissible on the husband's side, because he may end it by divorce, and that it cannot be annulled without a cause of annulment for either party. ¹⁶

One wife only, without a clear need. The Shafi'is and Hanbalis recommend that a man not take more than one wife without evident need, if one wife secures his chastity, because a plurality exposes him to what is forbidden. Al-Adhra'i said that if a wife is barren and cannot have children, it is recommended to marry a fertile one. The Hanafis permit up to four wives where justice can be assured, and where it cannot, limit the number to what he can treat justly. ¹⁶ Marrying in Shawwal. The Malikis and Shafi'is recommend marrying and consummating in Shawwal, following the report of Aisha about her own marriage. Some hold that the choice is not confined to Shawwal, and that it is done whenever possible. The Shafi'is add that encouragement to marry in Safar is valid. ^{16 17} Contract in the mosque. The Hanafis and Shafi'is recommend that the contract be made in a mosque; the Malikis say it is permitted. ¹⁷ Contract on Friday. The Hanafis, Shafi'is and Hanbalis recommend making the contract on Friday, a noble day on which Adam was created. ¹⁷

Time of the contract. The Shafi'is say it is recommended at the start of the day, following the hadith "O God, bless my community in its early hours." The Hanbalis prefer the evening, citing a report from Abu Hurayra (may God be pleased with him), and because the hour of answered prayer falls at the end of Friday. ¹⁸ A competent contracting party and reliable witnesses. The Hanafis recommend that the contract be made by a competent contracting party before reliable witnesses, and not without someone from the woman's agnates, and not before unreliable witnesses, to avoid the disagreement of al-Shafi'i, who holds that her guardian conducts the contract. The Malikis recommend delegating the contract to a worthy person whose blessing is hoped for; delegating it to an unworthy person is less preferred. ¹⁸ Looking at the woman. The Hanafis, Malikis, Shafi'is and some Hanbalis recommend that a man who wishes to marry a woman look at her, since this makes it more likely that they will feel at ease with each other. The Hanbali school's view is that the look is permitted. ^{18 19} Naming the dower and calling witnesses to it. It is recommended at the contract to name the dower and to call witnesses to it, which settles the mind and prevents a later dispute. The Malikis say the naming is recommended where the wording is "I married her" or "I gave her in marriage", but not "I gave her" as a gift, when it is obligatory to name it. They also recommend that the whole dower be paid at once, and that deferring all or part of it is less preferred. ¹⁹ Borrowing for marriage. The Hanafis hold that a man who lacks the dower and maintenance may borrow to marry, since the provision is a matter for God, citing the hadith that God helps three: the fighter in God's way, the slave who seeks to buy his freedom, and the one who marries seeking chastity. ^{19 20} The khutba before the contract. The Hanafis recommend a khutba before the contract, not bound to fixed words; praise and the tashahhud suffice, and the best is the khutba attributed to Ibn Mas'ud, which includes the tashahhud and three Qur'anic passages named by surah (Al 'Imran, al-Nisa' and al-Ahzab). The Hanbalis recommend the contract after Ibn Mas'ud's khutba, and count one khutba as enough. Ahmad is reported to have stood up when a contract was made without a khutba, as an emphasis on its recommendation rather than its obligation. The Malikis and Shafi'is recommend four khutbas: the suitor's request, the guardian's answer or excuse, the guardian's offer before the contract, and the husband's acceptance before it is complete. ^{20 21} Announcing the marriage. Making the contract public is recommended, so that it becomes known and is far from any suspicion of zina, on the hadith "announce this marriage" and the hadith that it be held in mosques with the tambourine. ^{21 22} The walima. Most jurists hold the walima, the wedding meal, recommended for one who can afford it, or a strongly affirmed sunna, since the Prophet ordered and practised it. Some jurists hold it obligatory, which is a view among the Malikis, a view or an aspect among the Shafi'is, and a view of Ahmad. ^{21 22} Prayers and congratulations. After the contract, prayers for the couple's blessing, plenty and good living together are recommended, and congratulating them is also recommended. The sunna is to say to the husband "God bless you and bless you, and join you together in good", as in the hadith of Abu Hurayra. ²² The prayer of the husband when his wife is brought to him. The Malikis, Shafi'is and Hanbalis recommend that a husband, when his wife is brought to him, ask God for her good and seek refuge in Him from her evil, take hold of her forelock and pray for blessing, as in the hadith of Abd Allah ibn 'Amr. Some reports add that they pray two rak'as behind him, as reported from Ibn Mas'ud and other Companions. ²³

The jurists recommend that one who wishes to marry choose a woman who combines the following qualities, or some of them. ²³ Religion. Choosing a woman of religion is recommended, on the hadith about the four reasons for which women are married, which ends with "so win the one of religion." The Shafi'is define the religious woman as one with integrity, eagerness for obedience and righteous deeds, and chastity from what is forbidden, not chastity from zina alone. The Hanafis recommend that the husband choose one above him in character, manners and piety. ²³ Virgin. Choosing a virgin is recommended on the hadith "keep to virgins". The Shafi'is and Hanbalis hold that a previously married woman is preferable for one with a stronger interest, such as a man unable to deflower a virgin or with dependants who need a woman to care for them. They cite the hadith of Jabir, whose father died leaving sisters, and the Prophet approved his marriage to a widow who could care for them. ^{24 25} Lineage and standing. Choosing a woman of good origin, from a family of nobility and religion, is recommended, since the child tends to resemble its mother's people. The Hanafis hold that it is recommended that the wife be of lower standing than her husband so that she submits to him and does not look down on him; the hadith of Anas warns against marrying for a woman's status, wealth or lineage alone. The Hanbalis add a family known for religion and contentment. ²⁵ Loving and fertile. Choosing a loving and fertile woman is recommended, on the hadith of Anas "marry the loving and the fertile, for I shall outnumber the nations by you". A virgin's fertility is known through women known for it. ²⁵ Beauty. Choosing a beautiful woman is recommended, on the hadith of Abu Hurayra, who asked which woman is best and was told she who pleases when looked at, obeys when commanded, and does not oppose him in what he dislikes in herself or his property. ²⁵

Sense and good character. A woman of sound sense and good character is preferred, not a fool or one of bad character, since marriage is meant for good companionship, and that is not possible with a fool. ²⁶ Not a close relative. The Shafi'is and Hanbalis recommend choosing a woman who is not a close relative, since the children of an unrelated woman are better, and because divorce among kin may lead to a breach of the ties of kinship that are commanded. ²⁶ Light dower and maintenance. The Hanafis, Shafi'is and Hanbalis recommend that a man seek the woman who is easiest in her proposal, her maintenance and her dower, on the hadith of Aisha that the blessing of a woman lies in an easy proposal, an easy dower and an easy womb. ²⁶ No children from another man. The Hanafis, Shafi'is and Hanbalis recommend that a woman with children from a previous husband not be chosen unless there is a benefit; if there is a benefit, there is no restriction, as the Prophet married Umm Salama, who had a child of her earlier husband. ²⁷ Not a divorcee her former husband desires, and no legal dispute over her lawfulness. The Shafi'is recommend that the woman not be a divorcee whose former husband still desires her, and that there be no jurisprudential dispute about her lawfulness to the one who wishes to marry her, such as zina with her or with her mother, daughter or ancestor, or doubt about foster-suckling. ²⁷ Ordering the qualities. Al-Ramli says that if the recommended qualities conflict, the more probable view is to prefer, in order: religion absolutely, then sense and good character, then lineage, then virginity, then fertility, then beauty, then whatever benefit the chooser's judgement finds clearer. Ahmad said that when a man proposes, he asks first about her beauty and then her religion; if he is satisfied with her religion he marries, and if he refuses it is for her religion; he does not ask about religion first. ²⁷ Desirable qualities in a husband. The Hanafis say a woman should choose a husband of good religion, good character, generosity and means, that she should not marry a sinner, and that a father should not give a young daughter to an old man or an ugly man, and should give her to a suitable husband without delay when proposed to. The Shafi'is say a father should marry his daughter only to a man who has never married. The Hanbalis say a father who wishes to marry his daughter should look for a handsome young man of good appearance. ^{27 28} Women whose marriage is disliked. The Malikis dislike marrying a woman notorious for zina, even by signs of circumstance, though not if she has been punished by the prescribed penalty. They also dislike marrying a woman who has been openly proposed to during her waiting period. The Shafi'is dislike marrying the daughter of zina, the wicked or a foundling, or a woman whose father is unknown, on the hadith "choose for your seed and marry those who are equal." The Hanbalis say it is not fitting to marry the daughter of zina, a foundling, or a woman of base lineage or unknown father. ²⁸ The bridal procession. The bridal procession is the bride's transfer from her parents' home to her husband's home. In the view the Hanafis adopt, it is permitted and not disliked if it contains no religious wrong; Ibn 'Abidin reports from al-Bahr that beating the tambourine at a wedding is disputed, and so is singing at a wedding. Hadiths reported from Aisha mention announcing the marriage with the tambourine, and that what separates the lawful from the forbidden is the tambourine and the voice. ^{28 29 30}

The disagreement. The Hanafis say the only pillar is the offer and acceptance. The Malikis say the pillars are the guardian, the parties (husband and wife) and the wording. The Shafi'is count five: the wording, the husband, the wife, two witnesses and the guardian. The Hanbalis count three: the two spouses, the offer and the acceptance. ²⁹ The wording. The jurists agree that the contract is concluded by offer and acceptance in words that express it, or something that stands in for words. The offer is, for most jurists, what the wife's guardian says, and the acceptance what the husband or his agent says. ³⁰ The order of offer and acceptance. The Malikis and Shafi'is hold that acceptance before the offer, or after it, is equal once the offerer and the acceptor are identified, although the Malikis recommend the offer first. The Hanbalis hold that the offer must come first and acceptance first is invalid. The Hanafis take the offer to be whatever is said first, from either side, and acceptance whatever is said last. ^{30 31} Words that conclude the contract. The jurists agree that the contract is concluded by the explicit words "marry" (inkah) and "give in marriage" (tazwij). The Shafi'is and Hanbalis limit validity to these two, on the ground that the Qur'anic texts use them, in the surahs of al-Nisa' and al-Ahzab, and that worship and its wording are received from the law. Said ibn al-Musayyib, 'Ata', al-Zuhri and Rabi'a agreed. ^{30 31} Allusive words in the Hanafi school. The Hanafis hold that the contract may also be concluded by allusive words, and divide them into four kinds. The first kind, on which the school agrees, includes words other than "marry" and "give in marriage", such as gift, charity, transfer and reward, since transfer causes the enjoyment of the woman. The second kind, on which the school differs, includes the word "sale", which the sounder view accepts. Salam, sarf and loan are discussed with disagreement, and the word for settlement is then mentioned. ³¹

The word for settlement. The author of al-Ajnas says a contract is not concluded by it; al-Sarakhsi says that beginning a marriage with the word for settlement is permitted. ^{31 32} Third Hanafi class (disputed; the sounder view is that it does not conclude). The word for hire is not sound, since hire is only for a fixed term and marriage excludes a term. Al-Karkhi held that marriage is concluded by the word for hire, arguing that what is taken in marriage is a benefit and that the Qur'an calls the dower a wage, in the surah of al-Nisa'. The author of al-Fath said the objection applies only if the woman is made the hired party, but not if she is made the price of the hire, which should not be disputed. The word for bequest does not conclude the contract in the sounder view, since bequest creates ownership after death; al-Tahawi held that it does, and al-Karkhi held that it does if it is tied to the present. If tied to after death, it is not a marriage. ^{32 33} Fourth Hanafi class (agreed not to conclude). The words for permission, lawful making, lending, pledge and enjoyment, since none of them transfers the enjoyment; and the words for rescission and khul', since they end an existing contract. ³³ Words distorted by error. A word spoken by mistake is not a contract, since it is neither literal nor figurative. But if a people agree to use it deliberately, it becomes a new convention, and the jurist Abu al-Su'ud gave a ruling permitting marriage by it in that case. ³³ The role of intention and of witnesses. The Hanafis say that allusive words, such as gift, transfer, charity and sale, need intention together with a sign, or the other party's agreement to the offer, and the witnesses' understanding of what is meant. The principle is that a word meant for transferring a thing concludes marriage if the dower is named, and otherwise by intention. If a woman was taught to say the words of marriage in Arabic without knowing their meaning, and the husband and the witnesses understand them, it is valid in one view, as with divorce, and invalid in another, as with sale. ^{33 34} The Maliki classes of words. The Malikis divide the words, including "marry" and "give in marriage", into four. The first concludes marriage whether or not a dower is named: "I married" and "I gave in marriage". The second concludes only if a dower is named: "I gave", for example "I gave you my daughter for a sum", which fails without a named dower. The third is disputed: words that imply lasting for life, such as "sold", "made possessed", "made lawful", "gave" and "granted"; the more common view is that they conclude if a dower is named, and another view that they never conclude. The fourth never concludes: words that do not imply lasting for life, such as detention, hire and lending. ^{33 34}

The past tense. The contract is concluded in the past tense: the guardian says "I married you my daughter" and the husband says "I accepted her marriage" or "I consented", since the past tense expresses fixity. The Shafi'is hold that "I accepted" alone is not enough, but he must say "I accepted her marriage", on their school's view; the majority of the Hanafis, Malikis and Hanbalis, and one Shafi'i view, accept "I accepted" or "I consented". ³⁴ The imperative. The contract is concluded by the imperative: the guardian says "marry my daughter" and the husband says "I have married her". ³⁴ The husband's "marry me to your daughter". If the husband says "marry me to your daughter" and the guardian says "I married you to her", the contract is concluded according to the Malikis, Shafi'is and, in one view, Hanbalis; the Hanafis also hold it concluded, whether the husband's words are read as an implicit agency or as an offer, the latter view being preferred in al-Bahr. In the Hanbali school it is not concluded, since their rule is that the offer precedes the acceptance; the husband's words count as acceptance. ³⁴ The present tense. The Hanafis say the present tense beginning with a hamza ("I marry you", "I marry you" with the ending varying), with an n ("we marry you") or with a t ("you marry me") concludes the contract, provided that the t-form is not meant as a future promise. The Maliki Dusuqi says the present is like the past in concluding; al-Laqani objected that contracts are made in the past tense, since the present implies a promise. ³⁵ The active participle. The Hanafis and Shafi'is say the contract is concluded by the active participle, as in "I am marrying you", or "I came to you as a suitor", to which the father replies "I married you"; the contract is then binding. ³⁵ The question. If the wording is put as a question, the Hanafis say the state of the matter is what counts. Al-Tahawi's commentary gives the case: if one asks "Did you give her to me?" and the other answers "I gave", it is a promise if the session is for promising and a marriage if it is for the contract; the Rahmati comment is that what counts is what appears in their words, not their intention, since a contract made in jest is valid though the jester did not intend marriage. The Shafi'is say that if the guardian says "will you marry my daughter?" it is not enough, but if the suitor says "I would marry your daughter" and the guardian replies "I married her to you", the contract is not concluded unless the suitor then says "I accepted". The Hanbalis hold that an offer put as a question is invalid. ^{35 36} Marriage in a language other than Arabic. Most jurists (the Hanafis, the Shafi'is and, in the school's view, the Hanbalis) hold that one who does not know Arabic may conclude the contract in his own language, since he is unable to do otherwise, as with the mute, provided he uses words with the same meaning as the Arabic. A second Hanbali view is that he may not, and must learn Arabic. ³⁵ Where a person can speak Arabic, the jurists differ whether the contract is valid in another language. The Hanafis, the sounder Shafi'i view, and Ibn Taymiyya and Ibn Qudama hold that it is valid, since the speaker used the specific word. The sounder Hanbali view and a Shafi'i view hold it is valid only in Arabic for one who can speak it. ³⁶ Things that stand in for words. The sign of a mute person counts in law, and stands in for speech where speech is required. A mute person's offer and acceptance are valid by sign when the sign is understood by the other party and the witnesses; this is agreed, though the jurists differ on conditions, such as whether he can write, or whether he was born mute or became so. ³⁶ Writing. A mute person may conclude by writing, since writing is better than sign. One who can speak but is present at the session may not conclude by writing, in the Hanafi, Maliki, the sounder Hanbali and the Shafi'i school's view; one Shafi'i view allows it. For an absent party, the Hanafis allow the contract by letter as by speech: the woman reads the letter to the witnesses and says "I married myself to him", since the witnesses must hear both parts of the contract. If the letter is in the form of a command, the witnesses need not know its contents, since she acts for both parties by agency. If the husband denies the letter after the contract, a judgement is not given on the marriage unless the witnesses testify to its contents. The Shafi'is say a contract by letter, to an absent or present person, is not valid in the sounder view, since writing is an allusion. The more evident Hanbali view allows a contract by letter when the contracting party is absent. ^{36 37} Messenger. The jurists in general hold that sending a messenger to conclude a marriage is valid, since the messenger's words are the sender's words. Al-Kasani says the contract is concluded by agency and by messenger as it is by a principal. ³⁷

The messenger. If a man sends a messenger to ask for a woman and she accepts before two witnesses who hear the messenger's words, this is valid, since the session is one in meaning: the messenger conveys the sender's words, so hearing the messenger is hearing the sender. The matter is detailed under the entry on sending (irsal). ³⁸ Contract by action. The Hanafis and Hanbalis hold that marriage is not concluded by mere action (mu'atat), out of respect for the private parts and the seriousness of their prohibition, so the contract requires an explicit word or an allusive one. Ibn 'Abidin reports from al-Bahr the question whether acceptance by action, such as paying the dower in the session, counts as acceptance by word, as it does in sale. Al-Bazzazi's view, following the author of al-Hidaya, is that it counts; the author of al-Muhit denies this, since in sale mutual action concludes the contract but in marriage it does not. ³⁸

The option of session. The Hanafis, Shafi'is and Hanbalis hold that the option of session does not apply to marriage: it is not a sale nor like one, the exchange is not a pillar or a purpose of it, and there is no need for it, since marriage is usually concluded only after reflection and after each party has learned about the other. The Malikis hold that the option of session applies in marriage if it is stipulated. ³⁸ The option of condition. The Hanafis, Shafi'is and, in one report that is the school's view, the Hanbalis hold that an option of condition does not apply to a marriage contract; if it is stipulated, the marriage is valid and the option void. The Malikis hold that if an option of a day or more is stipulated for one party, or for a third party, the marriage is dissolved before consummation as obligatory; once consummated, it is confirmed by the named dower, or by the dower of the like. A second Hanbali report holds that the contract is invalid with such a condition. ^{38 39}

Conditional on a future event. The majority of jurists (the Hanafis, Malikis, Shafi'is and, in the school's view, the Hanbalis) hold that a marriage cannot be made conditional on a future event other than a wish, since it is a binding obligation. If a guardian says "when so-and-so comes, I have married you my daughter", and the other accepts, and so-and-so comes, it is not concluded; likewise "if my wife bears a daughter, I have married her to you". A report from Ahmad holds that a marriage made conditional on a future event is valid. ³⁹ Conditional on a present or past event. This is allowed by the Hanafis and Hanbalis. A man asked for his daughter says "I have married her", and when the suitor does not believe him, says "if I have not married her to so-and-so, I have married her to you", and the suitor accepts before witnesses; then it emerges that he had not married her, and the marriage stands, since a condition on what is already present is a confirmation. The Hanbalis allow conditions on present and past events, such as "I have married you this child if it is a girl", when both know it is a girl, since that is not a real condition. The Shafi'is also allow conditions on present events. If a man is told of a birth and says to another "if it is a girl, I have married her to you" and the other accepts, the school's view is that the marriage is void, though if he was told and believed it and then said "if the one who told me is right, I have married her to you", it is valid, since the "if" then means "since". ^{39 40} Conditional on will. The Hanafis hold that a marriage conditional on will is valid if the one whose will it is cancels his will in the session. If the husband begins with "I have married you if you wish" and the woman accepts without a condition, it is valid, since her acceptance is itself her will. The Shafi'is hold that if he says "I have married you if God wills" intending a condition, or without intention, it is invalid; if he means blessing, it is valid. The Hanbalis hold that "I have married her to you if God wills" is valid if the other replies "I have willed and accepted". ^{40 41}

Dating the wording. A marriage cannot be dated to the future, as in "I marry you tomorrow", or "I marry you my daughter when the new month comes". See the entry on forbidden marriage. ⁴⁰ Fixing a term. A marriage may not be limited to a term. See the detail under the forbidden marriage entry. ⁴⁰

The wording of a contract may be uttered for both spouses in two cases. In the first, the husband acts for himself and as guardian of the wife, as a cousin does when he is guardian of his cousin and wants to marry her himself; may he conduct both sides? ⁴⁰ The Hanafis, except Zufar, the Malikis in the prevailing view, and the Hanbalis in one report hold that if the woman's guardian, who may lawfully marry her, is authorised by her to marry her, he may conduct both sides himself. This is the view of al-Hasan, Ibn Sirin, Rabi'a, al-Thawri, Ishaq, Abu Thawr and Ibn al-Mundhir. Al-Kasani argues from the surah of al-Nisa' on orphan women and from the verse on marrying the unmarried in the surah of al-Nur, since the command to marry is unrestricted. He holds that an agent is an envoy of the principal, so that his words are the words of two persons, and the contract stands on two parties in law. Ibn Qudama cites the report of Abd al-Rahman ibn Awf (may God be pleased with him) with Umm Hakim bint Qarzh. ^{41 42} The Shafi'is and, in the second Hanbali report, the Maliki opposing view and Zufar's view (Hanafi) hold that the guardian who wishes to marry his ward himself may not conduct both sides; he must appoint another, with her permission. The Shafi'is say he appoints one of equal rank, and failing him the judge. Ahmad's argument is the report of al-Mughira ibn Shu'ba, who wished to marry a woman whose closest guardian he was, and so commanded a man to marry her; and the analogy with sale, since the contract is made by a permission he holds, so he may not conduct both sides. ⁴² The second case. Both sides are conducted by the guardians of the two spouses, as when a grandfather conducts both sides in marrying the granddaughter to his other grandson. The Hanafis except Zufar, the sounder Shafi'i view and one Hanbali report allow this; the Shafi'is limit the right to the grandfather alone, for the strength of his guardianship. Zufar, the lesser Shafi'i view and the second Hanbali report disallow it, since the pillar of marriage is two different parts, offer and acceptance, which need two parties. ⁴² Marriage by agency. This means appointing an agent to conclude the marriage. Al-Kasani says marriage is concluded by agency and by messenger as it is by the principal, since the agent's act is the principal's act. Appointing an agent in marriage is valid by agreement of the jurists, and they cite that Umm Habiba, whose husband Ibn Jahsh died in Abyssinia, was married by al-Najashi on the Prophet's behalf, either by agency or by later approval; and that the Prophet appointed Abu Rafi' to accept the marriage to Maymuna, and 'Amr ibn Umayya (may God be pleased with him) al-Damri (may God be pleased with him) to accept the marriage to Umm Habiba. ⁴³ The jurists differ on which guardian may appoint an agent to marry his ward: only the compeller (mujbir), or any guardian even if he has no power to compel. They also differ on whether a woman may conclude a marriage as an agent. These are detailed in the following sections. ⁴³ The guardian. The jurists differ on whether the guardian is a pillar of marriage, a condition of its validity, or a condition of its permissibility and effect. The Malikis and Shafi'is hold that the guardian is a pillar: marriage is not valid without one, and "guardian" means one who holds guardianship, even if another conducts the contract by his permission. In both schools a woman's own words of offer or acceptance are not valid in marriage: she may not marry herself with or without the guardian's permission, nor marry another by guardianship or agency, nor accept a marriage by guardianship or agency. ⁴³

The Shafi'i view when there is neither guardian nor judge. If there is no guardian and no judge, and the woman with her suitor appoints a learned man to marry her to him, it is valid, since he is an arbiter and an arbiter is like a judge. The same holds if she appoints a just man, on the preferred view, even if he is not learned, given the strong need. Al-Nawawi says justice suffices, but the appointment needs travel and the absence of a judge. ⁴⁴ The Hanafi view. Guardianship is a condition of the pillar and of permissibility and effect, so no marriage is concluded by one who has no guardianship. The guardian is a sane adult heir; the child, the insane, the slave and the non-Muslim over a Muslim woman are excluded, in the view of most Hanafi jurists. Al-Ramli and Ibn 'Abidin say the definition is for the guardian by kinship, since the judge is a guardian but not an heir. ⁴⁴ Guardianship in marriage has two kinds. The first is recommended guardianship, over a sane adult woman, virgin or previously married. The second is compulsory guardianship, over a minor girl, virgin or not, and likewise over an insane adult woman and a slave. ⁴⁴ The Hanafi reports on a sane adult woman. Al-Kamal summarises seven reports. The first, from Abu Hanifa and the apparent school view, is that a sane adult woman may conclude her own marriage and that of others, with anyone, a suitable match or not, though it is disliked. The evidence is the Qur'anic passages that attribute marriage to women and to spouses, in the surahs of al-Ahzab and al-Baqara, and two hadiths of Ibn 'Abbas: "the guardian has no say over a previously married woman", and "the unmarried woman has more right to herself than her guardian". The inference is the sane child who reaches adulthood. ^{44 45} The second, a report of al-Hasan from Abu Hanifa, is that a marriage to a suitable match is valid and to another is not; this is the view chosen for the fatwa, since the harm, once done, cannot be lifted, and not every guardian pleads well or every judge is just. Ibn al-Humam says the invalidity should be limited to the case where she has living guardians. ⁴⁵ Abu Yusuf has three reports: not valid at all where she has a guardian; then valid with a suitable match only; then valid in all cases. Muhammad has two: the contract is suspended on the guardian's approval, valid if he approves and void if not; and where a suitable match is involved and the guardian refuses, the judge renews the contract. ^{45 46} The Hanbali view. The guardian is a condition of the validity of marriage, so no marriage is valid without one; this is the school's view, and al-Zarkashi says the school does not differ on it. A report from Ahmad says the guardian is not a condition at all, which Ibn Qudama and others limit to a case of need, when there is no guardian and no ruler. On the school's view, a woman may not marry herself, may not marry another such as her daughter or sister, and may not appoint a non-guardian to marry her, even with the guardian's permission. They cite the hadith of Abu Musa, "no marriage except by a guardian", and the hadith of Aisha, "any woman married without her guardian, her marriage is void, void, void", with the dower owed on consummation, and "if they dispute, the ruler is the guardian of one who has none". They refuse to read the negation as a denial of perfection, since the Lawgiver's words are read in their legal sense. ⁴⁶ Their reason is that a woman cannot be trusted with her own marriage because of the weakness of her reason and her quickness to be deceived, just as a spendthrift cannot be trusted with money. This is reported from Umar, Ali, Ibn Mas'ud, Ibn 'Abbas, Abu Hurayra and Aisha. If a judge rules a marriage without a guardian valid, or the one who concludes it is a judge who holds it valid, the ruling is not overturned, since such marriages are open to juristic disagreement. ⁴⁶ Conditions of the guardian. The jurists agree on some conditions for the guardian and differ on others; they are set out below. ⁴⁶

First: sanity and puberty. Most jurists hold that the guardian must be an adult of sound mind. Guardianship is not established for the insane or the child, since its capacity is the ability to judge in the interest of the ward, which requires full reason and judgement; neither has guardianship over himself, let alone another. A report from Ahmad says a child of ten may marry and give in marriage, and another report says twelve. ⁴⁷ By insanity is meant the continuous kind, which is set at a year, or most of a year, or a month, and on which the Hanafi fatwa rests; Abu Hanifa sets no period and leaves it to the judge's view. Intermittent insanity does not remove guardianship, by agreement, so the guardian waits for recovery as a sleeper does, unless a suitable match would be lost by waiting, in which case the later Hanafis permit marriage. ⁴⁷ Second: freedom. Most jurists require that the guardian be free, since a slave has no guardianship over anyone; guardianship implies ownership, and a slave is busy with his master's service and cannot give the thought needed for the interests of marriage. The Shafi'is add that a slave may appoint another to accept a marriage with his master's permission, and on the more sound view without it, but may not appoint another to make the offer. Al-Mardawi reports two Hanbali reports on a slave's guardianship over his kin, and the Qawa'id al-Usuliyya says the more evident view is that he is a guardian. ⁴⁷ Third: Islam. The jurists require that a Muslim's guardianship over a Muslim woman be held by a Muslim. The Hanafis say an unbeliever has no guardianship over a Muslim, since there is no inheritance between them, on the hadith that "people of two religions do not inherit from each other"; on the Qur'anic statement in the surah of al-Nisa' that God gives the unbelievers no way over the believers; and on the hadith "Islam rises and is not risen over". A Muslim has no guardianship over an unbeliever, on the hadith "a Muslim does not inherit from an unbeliever, nor an unbeliever from a Muslim". An apostate has no guardianship over anyone, Muslim, unbeliever or apostate. The guardian need not be a Muslim where the ward is an unbeliever, since unbelief does not weaken compassion or inheritance among unbelievers. ⁴⁸ The Malikis forbid an unbeliever to be guardian of a Muslim woman and the reverse; a Muslim may be guardian of an unbelieving woman only for an unbelieving slave, whom he marries to an unbeliever, or a freed unbelieving woman he freed while a Muslim in a Muslim land. The Shafi'is say a Muslim woman's unbelieving relative may not marry her, and an unbelieving woman's Muslim relative may not marry her; the original unbeliever may be guardian of the original unbeliever, so a Jew may marry off a Christian woman and the reverse, by analogy with inheritance in the surah of al-Anfal. The Hanbalis hold that an unbeliever may not marry off a Muslim woman or the reverse; a Muslim may marry off his unbelieving slave, and the sultan marries off an unbelieving woman who has no guardian. A dhimmi may be guardian of his dhimmi ward from a dhimmi, and the Hanbali school's settled view is that a Muslim may also be guardian. ⁴⁹ Fourth: justice. The jurists differ on whether justice is required of the guardian, in two views. The first holds that justice is not required, which is the Hanafi view and the Maliki prevailing view, one Shafi'i aspect and one Hanbali report. Its evidence is the general words of the verse on marrying the unmarried in the surah of al-Nur, the hadith "choose for your seed, and marry the equals and marry into them" without distinction, the continuous practice of Muslims from the Prophet's time without objection, and the analogy that unfitness does not weaken the ability to judge, nor compassion, nor inheritance, and that the wicked man is a guardian over himself and his slave. ⁴⁹

The second view on justice. Justice is required of the guardian, the Shafi'i school view, the Hanbali view and a non-prevailing Maliki view. The Shafi'is add that a wicked person has no guardianship, except the supreme imam, whether he is compelling or not, whether he has openly declared his wickedness or not, on the school's view; guardianship passes to the next in line, on the hadith "no marriage except by the permission of a guardian who is sound-minded or a ruler". The supreme imam's wickedness does not disqualify him, since it does not remove him from office. Al-Ghazali reports agreement that a person of concealed reputation may act as guardian. Al-Baghawi says a repentant wicked person may marry at once, since the condition is absence of wickedness, not acceptability as a witness; Ibn al-Muqri says he must first be tested, by analogy with testimony. ⁵⁰ Fifth condition: being male. The jurists differ in two views. The first, held by the Malikis, Shafi'is and Hanbalis in general, requires the guardian to be male, so a woman may not act as guardian. The Malikis add that a woman who owns a slave-woman, who is named as executor for a female ward, or who has freed a slave-woman, may appoint a qualified male who conducts the contract for them where no male agnatic relative exists. The Shafi'is say a woman may not marry herself with or without her guardian's permission, nor marry another by guardianship or agency of the guardian, nor accept a marriage for anyone, cutting her off from this matter, since modesty is what is intended of her. They cite the Qur'anic statement in the surah of al-Nisa' that men are the managers of women, and argue that the masculine form "guardian" in the hadith shows it is a man. The Malikis hold that if a guardian appoints his daughter to appoint a man to conduct the contract, it is valid, since she is an envoy between the guardian and the agent, unlike her appointing for herself. The Malikis also hold that a woman's permission is not needed to marry another woman, except where the other is her own property, or an insane or foolish person of whom she is guardian. The Hanbali school's sounder view is that a woman may marry off her slave-woman and her freed woman. ^{50 51} The second view, held by Abu Hanifa, Zufar, al-Hasan and, in the apparent narration, Abu Yusuf, is that a woman's words count in marriage. So if a sane adult free woman marries herself, it is valid; likewise if she marries another by guardianship or agency, or appoints another to marry her, or someone marries her and she approves. Muhammad says it is not valid without the guardian's approval; if the two die before it, they do not inherit; and if the guardian refuses approval, the judge renews the contract. The evidence for each side was given above under the guardian. ^{51 52} Sixth condition: sound judgement. The Hanafis, Malikis, one Shafi'i aspect and the Hanbalis hold that sound judgement is not a condition of marriage guardianship. The Malikis add that a foolish person may marry off his ward, and others with her permission, as a recommended act rather than a condition; if he marries his daughter without the guardian's consent, the guardian may recommend review, and if it is right he keeps it, otherwise he rejects it; if he does not review it, it stands. The second view, that of the Shafi'is, holds that they do not give guardianship to a person under restraint for foolishness, since one who cannot manage himself cannot manage another; by the school's view, this guardianship is lost, which Ibn Abi Hurayra affirmed and al-Subki chose. The Hanbalis require sound judgement in marriage, on the hadith "no marriage except by the permission of a sound-minded guardian or ruler"; sound judgement here means knowing a suitable match and the interests of marriage, not keeping property, since each form of soundness is measured by its own domain. They add that foolishness, meaning waste of property, does not remove guardianship. ⁵² Seventh condition: not in the state of ihram. The first view, held by the Malikis, Shafi'is and Hanbalis, requires that the guardian not be in the state of ihram for pilgrimage or lesser pilgrimage. One in either state cannot conduct a marriage; the Malikis say a contract made so is dissolved forever. The Shafi'is say the condition applies to any guardian, even a judge, and to the husband, or to the agent of either, or of the wife, on the hadith "a person in ihram may not marry, be married or propose". However, the guardian's ihram does not pass the guardianship to the next in line, on the sounder view. The second view, held by Abu Hanifa, Abu Yusuf and Muhammad, is that there is no harm in one in ihram marrying or giving in marriage. ⁵²

Ihram, continued. One in ihram may propose, but if he marries he should not consummate until he leaves the state of ihram, as the first group holds. The Hanafis cite the report from Ibn 'Abbas that the Prophet married Maymuna bint al-Harith (may God be pleased with her) while in ihram, and argue that since the prohibition of fasting does not prevent a contract, the prohibition of ihram does not either. Al-Tahawi reports from Ibn Mas'ud, Ibn 'Abbas and Anas that they saw no harm in a man in ihram marrying. ⁵³ Eighth condition: that the guardian not be coerced. The first view, held by the Malikis and Shafi'is, is that the marriage of a guardian who was forced to conduct it is not valid, citing the saying that God has lifted from my community error, forgetting and what they are forced to do. The second view, held by the Hanafis, is that the marriage of a coerced guardian is valid, since marriage does not admit jest: the Hanafi rule is that whatever is valid in jest is valid under coercion, since what is valid in jest cannot be dissolved, and what cannot be dissolved is not affected by coercion. ⁵³

The jurists list grounds of guardianship in marriage. ⁵³ a. Kinship. The ground is the very fact of kinship, not its fullness; fullness is a condition for precedence. The basis is the Qur'anic command to marry the unmarried in the surah of al-Nur, and the hadith "choose for your seed, and marry the equals and marry into them", since kinship produces compassion, which prompts a guardian to seek what is best for his ward. ^{53 54} b. Ownership. Guardianship in marriage is established by the owner over his male or female slave, since the guardianship of marriage is a guardianship of judgement for the owned, and ownership prompts compassion. A slave has no guardianship, since he owns nothing. ⁵⁴ c. Patronage. Guardianship is established by patronage of manumission, on the hadith "patronage is a kinship like that of blood, it is not sold or given", so as kinship grounds guardianship, patronage does too. ⁵⁴ d. The imamate. Guardianship is established by the imamate, on the hadith "the ruler is guardian of one who has no guardian", since he stands in for the body of the Muslims. ⁵⁴ e. Appointment. Some scholars hold that guardianship in marriage is established by appointment in a will. ⁵⁴

By the person under guardianship, guardianship in marriage is of two kinds. The first is compulsory guardianship, which means that the guardian's word of marriage is carried out over another: the guardian concludes the contract and it binds the ward, whether she agrees or not. The second is choice, or recommended guardianship, or shared guardianship, the jurists differing on the name; it does not carry out a word over another, and it requires that the ward's marriage be valid only after her permission or choice. ⁵⁵ Compulsory guardianship. The jurists agree that compulsory guardianship is held by some guardians over some wards, with detail. The Hanafis say compulsion, decisiveness and sole discretion belong to the guardian, who is their agnate in every case, so he may marry a minor boy or girl and an insane man or woman, on the hadith "marriage belongs to the agnates", though Ibn Hajar could not find it and al-Ayni said it is not established. Adult women are excluded by the hadith of Aisha on asking the virgin's consent, whose silence is her consent, and the minors remain. The hadith that the Prophet married Aisha when she was six and consummated at nine supports the minor's case. For the Hanafis the condition of this guardianship is that the ward be a minor or an insane adult, whether a minor girl is a virgin or previously married; it does not apply to a sane adult man or woman, since it turns with minority in minors and with insanity in adults. ⁵⁵

The Hanafi account: compulsion turns with minority and insanity. The compulsory guardianship turns on minority in the minor boy or girl and on insanity in the adult, whether the insanity began before adulthood or came after it; Zufar says that if insanity arises, the guardian may not marry her. A Hanafi consequence is that a father or grandfather may not marry off a sane adult virgin without her consent. ⁵⁶ They justify the guardianship over the minor and insane because marriage involves interests, and a suitable match is not always at hand, so guardianship over the young is needed for their good; kinship brings compassion and judgement, though a father's and grandfather's compassion is greater. ⁵⁶ If the one who marries off a minor, or an insane person, is the father or grandfather, the contract binds and the ward has no option to annul it, even if the match is not equal or the dower is greatly below its value, since guardians' compassion is full; the Prophet did not give Aisha an option when she reached puberty. The guardians must not be known for bad choice through dissolute conduct or wickedness, or the contract is void. If another guardian marries off the ward, each ward has the option to keep or annul the marriage, even if it is with a suitable match and no loss; Abu Yusuf says there is no option, as with the father or grandfather. ⁵⁶ The owner may compel his male or female slave, his mudabbar and his umm walad to marry, to protect his property and to shield them from zina, which destroys or diminishes them. He may not marry off a mukatab without consent, since they are out of his hand, and a mukatab may marry off his slave-woman as a form of earning, but not his slave-man, since that is a loss, not an earning. A marriage of a slave-woman to her slave-husband without dower is valid; some say a dower is owed as a right of the law and then drops. ⁵⁶ The Maliki compulsory guardians. The Malikis list three compulsory guardians. The first is the father, who may compel even if the dower is below the market rate, and even if the match is ugly or poor, over three of his daughters: a virgin, even a spinster who has long stayed with her father and knows her own interests, which is the school's known view against Ibn Wahb, who held that a spinster becomes like a previously married woman; the dispute turns on whether the cause of compulsion is virginity or ignorance of women's interests. The father may not compel a virgin whom he has declared competent, and she must consent by word. He may not compel a virgin who has lived a year or more in her husband's house after consummation and then been widowed. The second is a previously married young girl whose virginity her husband removed, and a previously married adult who lost her virginity by an accident or by zina; he may not compel one whose virginity was lost in a defective marriage if the penalty was averted by doubt. The third is the insane adult woman, whom the father may compel because she cannot discern, though a woman who is sometimes sane must wait for her recovery to consent. Compulsion of the three is lawful only where no evident harm arises, such as marrying her to a eunuch or one with a defect that justifies annulment. ⁵⁷ The executor (wasi) of the father, when there is no father, may compel in the matters where the father may, provided the father named the husband, offered the market dower and the man is not wicked. The father's compulsion is unconditional. The executor may also compel if the father ordered him to marry her, even without naming the husband, for instance "marry her to whom you like", which is the preferred view; if the father mentions the marriage or the contract, that is compulsion. A father's bare instruction "you are my executor" gives no compulsion. The executor of a previously married adult, on the father's order, comes after the son and has no compulsion. ^{57 58} The Maliki compulsory guardians of a male. Only the father, the executor and the ruler compel a male, who is either an insane adult whose marriage is needed for his protection, or a minor whose marriage serves his interest, such as marrying him to a wealthy or noble woman, to a cousin, or to one who will guard his property. The ruler compels only where there is no father or executor. ⁵⁸ The owner, third compulsory guardian. The owner of a slave-woman or a slave may compel either to marry; if the owner is a woman, she may compel too, but she must appoint an agent for a slave-woman, whereas a slave she may marry off herself. Compulsion is barred where it would harm the slave, as with marrying him to a man with a defect, and the marriage is annulled even if a long time has passed. The owner may compel a mudabbar or a slave freed at a term, unless the owner falls ill in the case of a mudabbar or the term draws near, within about three months. Al-Lakhmi holds the more sound view to be no compulsion over a female mudabbar or one freed at a term. There is no compulsion over a partly freed slave or a mukatab. The owner may compel a free concubine (umm walad) after her purification, though it is disliked, and if he does so it is valid on the sounder view. Partners may compel their slave only if they all agree. The owner has priority over other compulsory guardians, since his disposition is stronger. ⁵⁸

The Shafi'i father. They read the report "the previously married woman has more right to herself than her guardian, and the virgin is consulted by her father" (another version says "asked for permission") as recommendation rather than obligation, and argue that a virgin who has never been with a man is very shy. The conditions of the father's marriage of a virgin without her consent are of two kinds. Those that make the marriage valid without consent are: no open enmity between father and daughter, a suitable match, and a husband able to pay the dower immediately, so that the father does not short-change her. The rest, namely a dower at the market rate, payment in the currency of the land, no marriage to a man whose company harms her, such as a blind or very old man, and no outstanding pilgrimage obligation on her, which might lead the husband to hold her back, are conditions for merely permitting the father to proceed. ⁵⁹ The Shafi'is recommend asking the consent of a sane virgin, to comfort her, but a girl who is not sane has no consent; a girl approaching puberty should be asked, and a minor should not be married until she is of age. It is recommended to send trustworthy women to learn her mind, and the mother is preferred for this. The grandfather, however high, stands in for the father when the father is absent or unfit, with the one difference that the grandfather may conduct both sides of the contract, unlike the father; the agent of the father or grandfather has their position, but the agent of the grandfather may conduct both sides. Loss of virginity without intercourse in the female part, by a fall, a blow of menstruation, or a long spinsterhood, or by a finger in the sounder view, leaves her a virgin. ^{59 60} The Shafi'i insane woman. The father or grandfather must marry an insane adult woman whose insanity is continuous and who needs marriage, even if she is previously married, since she earns a dower and maintenance. If she has neither father nor grandfather, the ruler marries her, in the sounder view, after consulting her relatives. A judge does not marry her for a benefit such as the availability of means, in the sounder view. If she recovers after marriage, she has no option. The father and grandfather may marry an insane woman without need, since it brings a dower and maintenance; they may marry a minor or an adult, a virgin or a previously married woman, whether she became insane before or after puberty. The father or grandfather must also marry an insane adult man whose insanity is continuous and whose need is shown by his desire, or by the hope of his cure through intercourse on the word of two physicians. If a man's or a woman's insanity is intermittent, neither may be married until recovery and consent, and the contract is made during recovery. ⁶⁰ The Shafi'i owner. The sounder view is that a master may not compel his slave, except a mukatab or a partly freed slave, since marriage binds the slave's obligation to pay a dower, as with a mukatab's writing. He may compel his slave-woman, other than a partly freed or a mukatab slave-woman, since the marriage concerns her enjoyment of her body, which is his property. He may marry her to a slave, even if her father was a Qurayshi, and may not marry her to one with a defect such as leprosy, vitiligo or madness without her consent. If he compels her to marry someone permanently forbidden to her by kinship, fosterage or in-law relation, he must marry her if she is an adult who longs for marriage and fears zina; he need not do so if the prohibition is temporary, as when he owns two sisters and has had intercourse with one. ^{60 61} The Hanbali account. The father alone may marry his young sons, and the insane ones even if adult, without their consent, since they have no say; a father may not marry his son to a slave-woman, lest his child become a slave, nor to a woman with a defect that justifies annulment, such as a woman with an obstructed passage or a leper; he may marry his young or insane son at the market dower or below, even unwillingly, and neither has an option when the son reaches puberty and understands. The father may marry his virgin daughters, even after puberty, without their consent, on the hadith "the unmarried woman has more right to herself than her guardian; the virgin is asked, and her permission is her silence". The division shows that the right belongs to the guardian over a virgin, and the other hadith's asking is recommended, not obligatory. The father may also marry a previously married woman who is under nine without her consent, since she has no permission. The grandfather may not marry these without their consent, on the general wording of the hadiths, and because he is less than the father and so has no compulsion, like the paternal uncle. ⁶¹

The Hanbali consent of an adult virgin. It is recommended that a guardian seek the consent of an adult virgin and of her mother; the virgin's consent is sought because she may be bashful, and the mother's because she sees what the girl hides from others. The guardian may ask in person or through trustworthy women who learn what she feels. Where a virgin is compelled, the choice of a husband is the girl's, if she is at least nine, not the compeller's, since marriage is meant to be desired; a compelled virgin may not be given to a man she does not want. Some Hanbali scholars make compulsion conditional on a suitable match, the market dower, a husband able to pay, no open enmity between her and the father, and payment in the currency of the land. A guardian who refuses to marry the girl to the man she has chosen, at nine or older, is obstructive, loses his guardianship, and is judged a wrongdoer if he repeats it. ⁶² The Hanbalis add that a mad woman may be married by all guardians once she shows desire for men, since she needs marriage to be spared the harm of desire and to be guarded from debauchery; her desire is shown by her speech, her pursuit of men, and such circumstances. The ruler marries a sane minor, or an adult with continuous madness, who needs marriage, after the father and the executor when they are absent; other guardians may not, and the ruler may not if the ward has no need. ⁶² The Hanbali owner. A master may compel his slave-women, virgins or previously married, whether adult or minor, whether a pure slave, a mudabbara or an umm walad, since their uses are his; he may not compel a mukatab, even a minor, since she is as if outside his possession. He may compel his minor slave and an adult insane slave, but not an adult sane slave, who is accountable and can divorce. ⁶³ The second type: shared guardianship or recommended guardianship. On this view, the marriage of the ward is valid only after her permission is taken, as recommended for Abu Hanifa and Abu Yusuf, and as shared guardianship for Muhammad. The Malikis, Shafi'is and Hanbalis hold that a marriage is not valid without her permission. ⁶³ Abu Hanifa and Abu Yusuf. No compulsion is exercised over a sane adult virgin, a sane free adult, or a mukatab, on the hadith "the previously married woman has more right to herself than her guardian; the virgin is consulted, and her permission is her silence", and on Aisha's report that a virgin is asked, is shy and falls silent. Guardianship of compulsion in childhood is held on behalf of the incapable; on coming of age and sanity the incapacity is gone in fact. Yet her incapacity to conclude a marriage herself is a recommended incapacity, since she must go out among men, which is a fault by custom. So guardianship over her is recommended, not compulsory, as the cause requires. ^{63 64} Muhammad. After puberty the guardianship that remains is shared, not sole; so consent is needed, as with the previously married adult. If a sane adult woman is married without her consent, the marriage is suspended on her consent: if she consents it stands, and if she rejects it, it is void. ⁶⁴ Showing consent. The Hanafis, like other schools, distinguish how consent to marriage is shown by a previously married woman and by a virgin. A previously married woman's consent is shown by speech, such as explicit approval, on the hadiths "the previously married woman is consulted about herself" and "the previously married woman speaks for herself", and by act, such as allowing herself to be enjoyed or asking for the dower and maintenance, on the story of Barira, to whom the Prophet said "if he has had you, you have no option". A virgin's consent is shown by these and also by silence. This is a juristic preference; by analogy silence would not be consent. Its ground is the Prophet's words that a virgin's silence is her permission, and the reports that her silence is her consent or her acknowledgement. ⁶⁴

The reason for taking silence as consent. A virgin is shy of speaking her consent to marriage, since that would show a desire for men and seem bold; if silence were not taken as consent, and her speech were required although she does not normally speak, the benefits of marriage would be lost, though she needs it. Her silence is weighed toward consent, since if she did not consent she would refuse, and a virgin who is shy of consenting is not shy of refusing. But if a stranger or a more distant guardian marries her, silence does not count, since the chance of displeasure grows: she may keep silent to show contempt for him. She is shy before guardians, not before strangers, and a distant guardian who marries her while a nearer one exists acts by agency, not by guardianship, and agency needs words. ⁶⁵ The sunna. The guardian should consult a virgin before the marriage and name the suitor: "so-and-so is proposing to you", and if she is silent, she has consented. The Hanafis cite the report of Aisha and others, and the Prophet, who came to Fatima's chamber to marry her to Ali and said "Ali mentions you", and she was silent, and he married her. If a guardian marries her without consultation, he has missed the sunna. ⁶⁵ Laughing and weeping. If the guardian asks a sane adult virgin's consent and she laughs without mockery, smiles, or weeps silently, that is consent, in the view chosen for the fatwa. Abu Yusuf takes weeping as consent, for it is from great shyness; Muhammad takes it as refusal, since it is meant to show dislike. Ibn al-Humam says the reliance is on the circumstances of laughing and weeping, and if they conflict or are unclear, caution is taken. If she weeps aloud, it is neither consent nor refusal, and if she consents afterwards, the marriage stands. ^{65 66} Through an intermediary. The same holds if the guardian asks her through his agent or messenger, or if her guardian marries her and his messenger or a trustworthy unauthorised agent informs her. If the guardian says "I want to marry you to so-and-so" and she says "someone else is better", that is not consent. If he marries her and afterwards tells her, and she says "someone else was better", that is ratification, since her silence about refusal is consent. ⁶⁶ Vagueness. If the guardian says he wants to marry her to a man without naming him, and she is silent, that is not consent, since consent to what is unknown cannot be real. If he names several and she is silent, the marriage to any of them is valid. If he names a vague group, such as "from my neighbours or my cousins", her silence is consent if they can be counted, and not if they cannot. If he names the husband but not the dower, her silence is consent in the view of most earlier jurists, though some require the dower to be named as well. ⁶⁶ A guardian other than the nearest. If a stranger, or a distant guardian, asks her, her silence does not count; she must speak, or do something that shows consent, such as asking for her dower and maintenance, allowing intercourse, accepting congratulations, or laughing with joy, since silence is taken as consent only where consultation is needed, that is, where she cannot conclude the marriage herself. ⁶⁶ A virgin who has lost her virginity without intercourse. If a virgin's hymen was lost by a jump, a fall, a flow of blood, a wound or long spinsterhood, she is still a virgin in fact, since in their usage a virgin is one who has not had intercourse by marriage or otherwise, as Ibn 'Abidin quotes from al-Zahiriyya. Anyone whose virginity was lost by an act that establishes lineage, such as a valid or defective contract or a mistaken contract, is treated as a previously married woman, and her silence is not consent. ⁶⁷ Virginity lost by zina. Abu Hanifa treats such a woman as a virgin, since the reason for taking silence as consent, shyness, still holds: the loss of her virginity is not known to people, so they find it bold for her to consent openly; to require her speech would lose the benefit of marriage, and if she speaks while people know her as a virgin, she would suffer from the spread of her zina. Abu Yusuf and Muhammad treat her as a previously married woman, on the hadith "the virgin is consulted and the previously married woman is asked", and her silence is not enough. If she is publicly known for zina, for example after a punishment has been carried out or it has recurred, she is asked to speak by agreement. ⁶⁷ The Maliki non-compulsory guardian. The Malikis hold that the non-compulsory guardian is anyone other than the father, the executor, the ruler and the owner, and that no adult may be married except with her permission, whether she is a virgin or previously married; the permission differs between the two. ⁶⁷

Permission of an uncompelled virgin. Her silence is consent when she is asked: "Do you agree that we marry you to so-and-so for a dower of such an amount, the contract being concluded by so-and-so?" She need not speak; it is recommended to tell her that silence is consent. If she claims not to have known, the claim is not heard, and the marriage stands by most jurists. A virgin is not married if she refuses, by saying "I will not marry" or "I do not consent", or shows aversion, since aversion shows lack of consent. Laughing or weeping does not bar it, since weeping may be for the loss of her father, who would have conducted the contract. ⁶⁸ Previously married women, and six kinds of virgin. A previously married woman, even if foolish, makes her consent or refusal plain, and silence is not enough for her. Six kinds of virgin share this rule: the first is a virgin whose father has released her from restraint in money matters and who is an adult, whose consent must be given by word; the second is a virgin refused by her guardian, whose case went to the judge who married her, where word is needed, but where the judge ordered her father to contract and he did so, no consent is needed, since he compels; the third is a virgin with no father or executor, married for goods, from a people who marry only for known goods, who must say "I consent", since a sign is not enough; the fourth is a virgin married to a slave, since a slave is no match for a free woman; the fifth is a virgin married to a man with a defect, such as leprosy, vitiligo, madness or castration; the sixth is a virgin whose guardian who does not compel concluded the contract without her permission, and she later learned of it and consented, which validates the contract, but only by word. ⁶⁸ The Maliki concluded-without-leave case. A contract concluded by one who acts without authority over her is valid if she consents, on six conditions: her consent must follow quickly, as when the contract is made in the market or the mosque and the news is carried to her at once; her consent must be by word, not silence; she must not have rejected the marriage before consenting; she must be in the same town at the time of the act and of the consent, for if she is elsewhere it is not valid, however near the towns; and the guardian who acted without authority must not admit it at the time of the contract, by keeping silent or claiming he had permission. ^{68 69} The Shafi'i previously married woman. A compelling guardian may not marry an adult previously married woman, even if her virginity returned, without her permission, on the hadith "do not marry the unmarried women until you consult them", since she knows the purpose of marriage. If she is a minor who is not insane and not a slave, she may not be married until she reaches puberty, since a minor's permission has no weight; an insane woman may be married by father and grandfather before she is of age, and a slave-woman by her owner. Loss of virginity by intercourse, whether lawful as in marriage, unlawful as in zina, or mistaken, in sleep or waking, makes a woman a previously married woman; intercourse by the back passage counts for nothing in the sounder view. Loss of virginity without intercourse in the front passage, by a fall, a flow of blood, long spinsterhood, or a finger, in the sounder view, leaves her a virgin. ⁶⁹ The Hanbali account of speech and silence. Guardians other than the father may not marry a free adult woman, previously married or virgin, without her permission, on the hadith "the unmarried woman is not married until she is consulted, nor the virgin until she is asked"; they asked how her permission is shown, and he said "that she be silent". An insane woman may be married by all guardians once she shows desire for men. A guardian other than the father or his executor may not marry a girl under nine at all, but may marry a girl of nine or more with her permission, which is valid, on the report of Aisha: "when a girl reaches nine she is a woman". A previously married woman's permission is by speech, on the hadith "the previously married woman speaks for herself", and any woman whose genitals were entered by a man's organ, even by zina, counts as previously married; if her virginity returns, her status as previously married remains, since the reason for the distinction, intercourse, still exists. A virgin's permission is her silence, even if another than the father marries her; laughing or weeping counts as silence, on the hadith of Abu Hurayra: "the orphan girl is consulted; if she is silent, that is her permission, and if she refuses, no contract is valid over her". ⁷⁰

Details of permission. The virgin's speech is stronger than her silence, laughter or weeping, since speech is the basic form of permission and silence is accepted only because of shyness. If she permits by speech, the permission is complete; if she does not, it is recommended not to force her to speak, and her silence is accepted so long as she does not openly refuse. Loss of virginity by a finger, a jump, a heavy menstrual flow or a fall from a height does not change the form of permission; she has a virgin's status. Permission requires naming the husband so that she knows who he is, by his lineage and standing, but not naming the dower, which is not a pillar of marriage. It is prudent to call witnesses to her permission. ⁷¹ The order of guardians: the Hanafis. The guardian in marriage is an agnate in his own right, in the order of inheritance and exclusion. Abu Hanifa and Abu Yusuf put the son before the father, against Muhammad, who puts the father first. The order runs: the father, the paternal grandfather, the full brother, the consanguine brother, the full brother's son, and so on through the uncles and their sons, then the manumitter, his son, and his agnates by blood. If there are no agnates, the mother has guardianship in the sounder view for Abu Hanifa and Abu Yusuf, and in the Hanafi practice; Muhammad says only the judge has it. Then the patron of alliance, the ruler, the judge named to it, and his deputies if he is empowered; the executor as such may not marry an orphan, even if the father named him for this, except if he is a relative or a judge. ^{71 72} The order of guardians: the Malikis. They hold that the order is obligatory but not a condition. The son comes first, then his son, the father, the full or consanguine brother (a uterine brother has no particular guardianship), his son, the paternal grandfather, the paternal grandfather, the paternal uncle and his son, then the grandfather of the father, the father's paternal uncle and his son. Among equals, the full brother precedes the consanguine on the sounder view. If equals in rank and merit dispute, the judge decides, or lots are drawn. Then the upper patron, his agnates, and the patron's patron; then the non-agnatic guardian who has cared for a girl whose father has died or is absent, whose authority in the school's view is limited to humble girls, and the judge. If there is no agnate, patron, guardian or judge, any Muslim may marry her, such as a maternal uncle or maternal grandfather, with her permission; a humble woman's marriage by general guardianship is valid even with a specific non-compelling guardian, but a woman of standing's marriage is validated only if the marriage was consummated and lasted. ^{72 73} The order of guardians: the Shafi'is. They order the guardians by the link through which they are connected to the ward: kinship first, then patronage, then authority. The father comes first, since most guardians are connected through him; then the paternal grandfather, however high; then the full brother, the consanguine brother, the full brother's son, the consanguine brother's son, the full uncle, the consanguine uncle, their sons, and then the other agnates in the order of inheritance, with differences from inheritance in some cases, such as the full brother preceding the consanguine brother in inheritance, where the newer view makes them equal in marriage. A woman with no agnate but with a patron has the patron as guardian, then his agnates. Whether the ruler marries by general guardianship or by delegated authority is disputed, and the practical difference is that if the judge wishes to marry a woman whose guardian is absent, he can do so only if the view of general guardianship holds. ^{74 75} The order of guardians: the Hanbalis. The father has the best right to marry his daughter, since a child is a gift to his father. Then the paternal grandfather, however high. Then the woman's son, his son, her full brother, the consanguine brother, their sons, the full paternal uncle, the consanguine paternal uncle, their sons, and then the nearest agnates in the order of inheritance, since guardianship rests on compassion and judgement, which kinship indicates. Then the patron who freed her, then his nearest agnates, then the patron's patron. Then the ruler, who is the supreme imam, or his deputy, or the judge given authority over marriages, even if he is a rebel who has seized a city. Relatives who are not agnates, such as the uterine brother, the maternal uncle or the mother's paternal uncle, have no guardianship. ⁷⁵ When the guardian is entirely absent. If there is no guardian at all, or the guardian obstructs and there is no other, a ruler of that place, such as a governor or a caravan leader, marries her. If there is no ruler there, a just man marries her with her permission. Ahmad, about a village headman, said that one may marry a woman who has no guardian if he takes care of the match and the dower, since to require a guardian in such a case prevents marriage altogether. If there is a judge in the town but he refuses except for a bribe he has no right to, his presence is as good as his absence. ⁷⁶ Transfer of guardianship by obstruction. When the guardian's obstruction is established before the judge without a reasonable cause, the judge orders him to marry her, and if he refuses, the guardianship passes. The majority hold that it passes to the ruler; the Hanbalis and Ibn 'Abd al-Salam hold that it passes to the next most distant guardian, and then to the ruler if there is none or he obstructs too. ⁷⁶ Absence of the guardian. The Hanafis say the nearer guardian is preferred to the more distant only if he is present, or absent without a cut-off. If he is absent with a cut-off, the more distant may marry her, in the view of Abu Hanifa, Abu Yusuf and Muhammad; Zufar says the more distant has no guardianship while the nearer exists. The three hold that the more distant guardian's authority adds to the care of the one who is unable, since he is more able to secure a present suitable match. The meaning of cut-off absence is disputed: for Abu Yusuf, the distance between Baghdad and al-Rayy or a month's journey; for Muhammad, the distance between al-Kufa and al-Rayy, or between al-Raqqa and Basra; Ibn Shuja' says it is a place that caravans and messengers reach no more than once a year; al-Bukhari said it is where a suitable match would be lost in consulting the guardian, which he judged nearer to law. ⁷⁷ The Malikis on absence and capture. If the compelling guardian is missing or captured, he is treated as dead, and the right passes to the nearest guardian, not to the judge. Ibn Rushd reports agreement that a far absence leaves the judge as the one who marries, and that is the school's view; a far absence, such as Africa from Egypt, is the case he favours. ⁷⁷

The Malikis: absence of the guardian. If the guardian is absent at a distance he cannot reasonably be expected to return from, the judge does not marry her, and no one else does. If the nearer, non-compelling guardian is absent a distance of about three days from her town and she wants to marry, the judge marries her, not the more distant guardian; if the more distant one does marry her, the marriage is valid. If the compelling guardian is absent for three or twenty days, on a safe road, no one marries her, because he is treated as present, since news can reach him without great trouble. ⁷⁸ The Shafi'is. If the nearer guardian by kinship or patronage is absent by two stages and has no agent in the town, the ruler of her town or his deputy marries her, not a ruler from another town, nor the more distant guardian, in the sounder view; another view lets the more distant marry her. If he is absent less than two stages, he may not marry her without his permission, and she must refer to him to attend or appoint an agent. ^{78 79} The Hanbalis. If the guardian is absent for a cut-off absence, and has not appointed someone to marry her, the more distant guardian marries her, not the ruler, unless she is a slave-woman, when the ruler marries her. The cut-off absence is one that cannot be bridged except with difficulty and hardship. If the nearer guardian is captive or imprisoned, or his whereabouts are unknown, or it is not known whether he is a relative, the marriage by the more distant guardian is valid. If the more distant guardian marries her without a reason on the nearer's side, the marriage is void even if the nearer consents, since the more distant has no guardianship while the nearer exists. A stranger, even a judge, who marries her when a guardian exists, makes the marriage void even if the guardian consents, since its condition, a guardian, is missing. ⁷⁹ One woman married by two guardians to two men. The general rule is that if two equal guardians marry a woman to two men, and the earlier contract is known, the marriage is valid for the first, and the second is void, on the hadith "a woman married by two guardians belongs to the first of them". If the contracts are concurrent, both are void; if the order is unknown, both are void. ⁸⁰ The Hanafis. If the earlier contract is known, it stands, on the hadith "if two guardians marry, the first is more entitled", since the cause of guardianship is kinship, which cannot be divided, and the effect, the enjoyment of the body, cannot be divided either. If the order is unknown or they are concurrent, both are void. If one guardian is nearer, the more distant has no guardianship unless the nearer is absent by a cut-off. If a father marries his virgin daughter with her permission to one man and she marries herself to another, the one she names as first is the first, and her word is taken; if she says she does not know and no one else knows, they are separated. ^{80 81} The Malikis. If a non-compelled woman gives permission to two or more guardians, together or in turn, and each contracts with a man, and the first is known, the first has her, though the permission came later, and the second contract is annulled. If the second enjoys her while unaware that he is second, she is his instead, on conditions: he enjoys her unaware, the second contract was not during the first husband's waiting period, and the first did not enjoy her first. If both contracts happened in the same time, both are annulled without divorce. If the second admits after consummation that he knew he was second, his marriage is dissolved with a final divorce and he owes the full dower. ⁸¹ The Shafi'is and Hanbalis. The Shafi'is give five cases: if one contract is known to be first, it stands and the other is void, whether or not the second consummated; if the two are concurrent, both void; if priority and concurrence are unknown and can be learned, both void; if a particular one was first and then this is hidden, the matter waits until it is clear, and neither may enjoy her; if priority is known but the first is not identified, both are void on the stated view. The Hanbalis hold that the first contract known stands, on the hadith of Samura and Uqba; if the second consummated unaware, the marriage is separated, the second owes the market dower for the mistaken intercourse, and she returns to the first, who may not have her until her waiting period after the second's intercourse is complete. If both are concurrent, both are void. If the order is unknown, the judge dissolves both, she has half the dower, and lots are drawn for who pays it. ^{81 82} Agency in marriage. An agent may act for the husband, the wife or the guardian. (a) The husband's agency: all four schools agree it is valid, citing the Prophet's agency for Abu Rafi' in the marriage to Maymuna and 'Amr ibn Umayya's in the marriage to Umm Habiba. The Hanafis require the agent to be sane, but not adult or free, citing the case of Amr ibn Umm Salama, a boy who concluded the marriage of the Prophet to Umm Salama. The Malikis allow the husband's agent to be male or female, free or slave, adult or minor, Muslim or unbeliever, except one in ihram or of weak mind. The Shafi'is allow only one who could conduct the contract himself, so no minor, madman, unconscious or woman. The Hanbalis allow an agent who accepts for the husband, even a deviant one, and an unbeliever for an unbelieving woman. ^{82 83 84} (b) The wife's appointment of an agent to marry her: the Hanafis hold she may act herself, and so may appoint an agent. The Malikis allow a humble woman, such as a freed slave or a poor woman, to appoint a stranger in a town without a ruler, or where the ruler is hard to reach and she has no guardian. The majority say a woman may not conduct the contract herself, nor appoint anyone to conduct it, since she has no such right. The Shafi'is detail: if she says "marry me and appoint", he may do both; if she forbids appointment, he may not; if she says "I permit you to marry me", he may appoint on the sounder view, since he acts by guardianship. The Hanbalis say a guardian is not the woman's agent, since his guardianship is not established from her. ⁸⁴

The Hanbalis: the guardian's agency. The guardian is not the woman's agent, since if he were, she could dismiss him like any principal; her permission is a condition for the validity of his act, as is the judge's authority over her. He may appoint someone to make the offer without her permission, and no two witnesses are needed for the appointment, since it is the guardian's permission. A non-compelled woman's permission is needed for her guardian's agent, and her permission to the guardian alone is not enough. The guardian may appoint an agent to make the offer in general terms, such as "marry her to whomever you wish or whomever you approve", and the general agent is limited to a suitable match. A limited agency, such as "marry so-and-so in particular", binds the agent to that limit. ^{85 86} The Malikis. A woman's guardian may appoint only someone who meets the same conditions as a guardian. The Malikis say a woman who owns a slave-woman, a female executor, or a freed woman may appoint a male who meets the conditions in some cases; in the case of a male ward, each of them may marry him, on the prevailing view. ^{85 87} The Shafi'is: appointment by a compelling guardian. A compelling guardian may appoint an agent without her consent, on the sounder view; another view requires it. If a thayyib or a virgin who is not under her father or grandfather permits appointment, the two views on requiring the husband to be named apply. Their cases are as before for the woman's agency. ⁸⁷ Conditions of the guardian's agent. The agent must meet the same conditions as the guardian: male, adult, sane, just, of the same religion, and of sound judgement, since no one may conduct a guardianship who is not qualified for it; and if one may not marry one's ward directly, one may not do so by agency either. A report says that a man left his daughter with Umar and said, "if you find a suitable match, marry her to him even for the price of a shoe-lace"; Uthman married her, and no one objected. ⁸⁶ The executor. The Hanafis, Shafi'is and, in one report, Ahmad hold that the power of marriage is not acquired by appointment. The executor acts by command, so he does not exceed the command, like an agent. If the deceased named someone in his life and the executor married her to him during the father's life, the executor is an agent; if after death, the agency has ended and the judge marries her when no close relative exists; but a close relative or judge who is the executor may marry her by guardianship if no one is preferable. The Malikis and Hanbalis, the school's settled view, hold that the power of marriage is acquired by appointment. For the Malikis, the executor of a father, when there is none, may compel as the father could. For the Hanbalis, each guardian's executor stands in his place, once he is named to marry. The formula is "I have appointed you executor over the marriage of my daughters" or "over my daughters' marriage"; a father who names his executor only by a general word such as "executor" has given him no marriage power. A father's executor for a daughter compels where the father would compel, and needs her permission otherwise. Whoever the executor marries, boy or girl, has no option on reaching puberty. An executor over the affairs of young children may not marry one of them. Ahmad reports that if the deceased left agnates, appointment does not confer marriage power. ^{86 88 89} Marrying an orphan. The jurists differ: some forbid it entirely; some allow it by kinship or by the general ground of guardianship; some restrict it to fear of corruption; others to age nine or more. The Hanafis: an executor as such may not marry an orphan, boy or girl, even if the father named him, since he is not a guardian; a close relative or judge may marry by guardianship if no one is preferable. The Maliki view: the test is fear of harm to the orphan girl; if harm is feared through poverty, zina, lack of a legal carer or loss of property, she is married, whether or not she has reached ten and whether or not she consents, the guardian compels her, and the judge must be consulted. If harm is not feared, the marriage is valid only if consummated and it has lasted long enough for two children to be born, or a period in which a child could be born. The Shafi'is: no one of the paternal circle, such as a brother or uncle, may marry a minor girl without a father, whether virgin or previously married, sane or mad, since her consent counts for nothing; nor may an executor or judge marry a minor boy, since there is no need and no full compassion. The Hanbalis: no guardian other than the father or the executor he named may marry a girl under nine, and they may marry a girl of nine or more with her permission. ^{89 90} Marrying a slave, an unauthorised contract, and a foolish person. A slave, male or female, may marry with the owner's permission, to protect him from zina and his master's property from loss; the power to marry a slave belongs to the owner. An unauthorised contract is void for some and suspended for others. All agree that the marriage of a restricted foolish person is valid, and they differ on whether his guardian's permission is required. ⁹⁰ Witnesses. Most jurists (the Hanafis, Shafi'is and the school's view of the Hanbalis) hold that no marriage is valid without two witnesses, on the hadith of Aisha "no marriage except by a guardian and two just witnesses", since the contract touches the child's right, its lineage needs witnesses, and witnesses clear the suspicion of zina. The Hanafis and Hanbalis treat witnesses as a condition, the Shafi'is as a pillar. One Hanbali report says witnesses are not a condition at all, and some add that if the marriage is concealed, witnesses are a condition by agreement. ⁹¹ The Malikis: witnesses are obligatory. The Malikis hold that witnesses are obligatory but not a pillar or a condition of the contract, as a separate duty, lest a man and a woman who have been alone claim that a contract preceded, which would remove the penalty for zina. If witnesses are present at the contract, both the obligation and the recommended act are met; if witnesses are found only at consummation, the obligation is met but the recommended act is lost; if there are no witnesses at all and the marriage is consummated without them, the contract is dissolved by an irrevocable divorce, since the dissolution is compelled by the judge. ⁹¹

Conditions of the witnesses. The jurists agree that conditions apply to the two witnesses, agreeing on some and differing on others. ⁹² Islam. The four schools agree that the witnesses to a Muslim's marriage to a Muslim woman must be Muslims, since an unbeliever has no guardianship over a Muslim. Where a Muslim marries a dhimmi woman, the Shafi'is, Hanbalis, Muhammad and Zufar require Muslim witnesses, since the testimony of dhimmis on a dhimmi woman is not accepted. Abu Hanifa and Abu Yusuf allow two dhimmi witnesses, citing the general texts and the guardianship of an unbeliever over an unbeliever. ^{92 93} Sanity and puberty. The Hanafis, Malikis, Shafi'is and Hanbalis require each witness to be sane and adult, so the testimony of a madman is not accepted by consensus, nor a child's, since neither is a person of testimony, and since testimony belongs to guardianship. ^{92 93} Justice. Most jurists (the Malikis, the sounder Shafi'i view and the Hanbalis) require the witnesses to be just, on the hadith "no marriage except by a guardian and two just witnesses", so a marriage is not valid before two sinners. The Shafi'is in the sounder view and the Hanbalis in the school view accept the apparent justice of those known as just in ordinary dealings, since most people are presumed just and marriage happens among ordinary folk. The opposing Shafi'i view requires inner justice. The Shafi'is distinguish concealed justice, which suffices, from concealed Islam or freedom, which do not. The Hanafis and one Hanbali report hold that justice is not a condition, since general texts of marriage are unqualified, and the wicked is not disqualified from concluding his own marriage. ^{93 94} Number. A marriage is not valid with one witness, in the four schools; the Shafi'is add that it makes no difference whether the witnesses attend by intent or by chance. ⁹⁴ Freedom. The Hanafis, Malikis and Shafi'is require each witness to be free, so a slave cannot witness. The Hanbalis do not require freedom, since the testimony is on a statement, like common report. ^{94 95} Maleness. The Malikis, Shafi'is and Hanbalis require witnesses to be male, so no marriage is valid by women's testimony, nor by one man and two women. The Hanafis and one Hanbali report do not require maleness, so one man and two women suffice. ⁹⁵ Hearing. The Hanafis, Malikis, Shafi'is and Hanbalis require the witnesses to hear both parties, so a contract heard by one witness on one side only is not valid, since the witnesses' presence is a condition of the pillar, the offer and acceptance. The Shafi'i al-Ramli recorded a view that a deaf witness need not hear. ⁹⁵ Sight. The Shafi'is require sight, since the words are established only by seeing and hearing. The Hanafis, Malikis and Hanbalis do not require it, so blind witnesses are valid when they are certain of the voice, as in common report; blindness affects only the giving of testimony. ^{95 96} Speech. The Hanafis, Hanbalis and the sounder Shafi'i view require the witnesses to speak, so two mute witnesses do not validate a marriage; the Hanbalis accept a mute witness who testifies in writing, and the Malikis and one Shafi'i view accept his testimony. ^{95 96} Alertness and language. The Malikis and Shafi'is require witnesses to be alert and retentive; a heedless man does not make a marriage valid, though one who remembers and forgets briefly does. The Shafi'is require the witnesses to know the language of the contracting parties; a reliable report of the meaning suffices only before the formula is completed and with no long delay, and some say that knowing the wording suffices. ⁹⁶ Not sons of the spouses. The Hanbali school holds that neither witness may be a son of either spouse, so a marriage is not valid by the testimony of the spouses' sons or of a son of one of them; the Hanafi and Maliki rule that a parent's testimony for a child, or a child's for a parent, is not accepted implies the same. A Shafi'i aspect, the sounder, makes it valid. ⁹⁶ Secret marriage. The jurists differ on its nature and its ruling. The Hanafis say a secret marriage is one not attended by two witnesses; once two witnesses attend it is public, since a secret that passes two persons is no longer a secret, and the Prophet's words "announce this marriage" and "beat the tambourine over it" recommend publicity. The Malikis say the common view is that a secret marriage is one whose witnesses were told to keep it secret, whether or not others were also charged to keep it; Al-Bajji holds that asking anyone other than the witnesses to keep it secret also makes it secret. Its ruling for the Malikis: if it was for fear of a tyrant or a sorcerer, there is no sin or annulment; otherwise it is forbidden, because the Prophet forbade it; it is annulled if the husband did not consummate it, and if he did, the two are separated and she keeps her dower. Ali's report of the Prophet passing the Banu Zurayq says the marriage is not a secret one until a tambourine is heard or smoke seen. The Hanbalis hold that a marriage is not voided by an agreement to keep it hidden, since with witnesses to it, it is not concealed. ^{96 97}

The place of the contract. The two spouses together are the place of the contract. The Malikis, Shafi'is and Hanbalis count them among its pillars, against the Hanafis. The jurists agree that each spouse must be lawful to the other and free of impediments: not one forbidden by kinship, fosterage or in-law relation, not a Zoroastrian, idolater or apostate woman, not one who has been cursed in a mutual oath (li'an), not a married woman, not one who has been divorced three times, not one in the waiting period for another, and not one whose marriage together with an existing wife is forbidden. Each must be identified in the contract, so the woman is married by the name by which she is known. ⁹⁸ A spouse need not be the other's property. The Malikis hold that neither may be in the illness of death, so that a marriage of such a person is dissolved before and after consummation, though if the sick person recovers it is not dissolved. The Malikis, Shafi'is and Hanbalis hold that neither spouse nor the guardian may be in ihram. ^{98 99} The conditions of marriage, for the Hanafis. The conditions of the pillar are of three kinds: conditions of conclusion, conditions of permissibility and effect, and conditions of binding force. Conditions of conclusion are sanity, and a single session when both are present, so the contract is not concluded if one leaves before acceptance. Conditions of permissibility and effect include adulthood: the marriage of a sane minor is concluded but not effective, and depends on his guardian's approval, and does not take effect at puberty unless the guardian approves; freedom, so an adult slave may not marry without his master's permission, on the hadith "any slave who marries without his master's permission is an adulterer"; and the guardianship. Conditions of binding force are two kinds: for the marriage to bind from the start, the guardian of a minor must be the father or grandfather, or else the minor has an option on puberty; Abu Hanifa and Muhammad hold this, while Abu Yusuf does not require it. Another condition is the husband's equality with a free, adult, sane woman who marries herself without her guardians' consent. The condition of continuing binding force is that the husband not have been given power over divorce, by "choose yourself" or "your affair is in your hands" with intent to divorce, by "divorce yourself", or by a conditional or dated divorce; and that the master not free his wife-slave, since if he does, she has the option of freedom. ^{99 100} The conditions of marriage, for the Malikis. The marriage must have a dower, even if not named at the contract, which must be named at consummation or the dower of the like is settled. It is valid by the witness of two just men other than the guardian; not by two sinners, nor one man and two women, nor by two men one of whom is the guardian, since the guardian's testimony is on his own act. If just men cannot be found, men of unknown but apparently good condition suffice, and it is wise to call many witnesses in these times. ¹⁰⁰ Conditions within the contract. The jurists differ on whether a condition in the contract invalidates the marriage. ¹⁰¹ The Hanafis. The marriage is not invalidated by a bad condition; the marriage is valid and the condition is void. If a man marries a woman for a thousand on condition that he take no other wife, and he keeps it, she has the named dower; if not, she has the dower of the like, since she accepted the thousand only with that condition. If he says "a thousand if you stay here, two thousand if you take her away", and he stays, she has the thousand; if he takes her away, her dower is the like, not more than two thousand nor less than a thousand; the two companions hold both conditions valid, Zufar holds them void. ^{101 102} The Malikis. If a man marries a woman on condition that she not come to him, or that he come to her only by day or only by night, the marriage is dissolved before consummation but not after, since such a condition contradicts the marriage's purpose; after consummation the dower of the like is settled. Conditions that contradict the purpose of marriage, such as that he not share the nights with a co-wife, that her maintenance be on her father, that there be no inheritance between them, or that she have the power of her own divorce, dissolve the marriage before consummation and the condition is void after it. ¹⁰² The Shafi'is. A condition with no purpose is idle; a condition that does not contradict the marriage's nature, such as maintenance, sharing nights, a concubine, a journey, or that she not leave without his permission, does not affect the marriage. A contrary condition is of two kinds: one that does not harm the essential purpose, such as that he not take another wife or concubine, which voids the condition but not the marriage, on the sounder view; and one that harms the purpose, such as that he never have intercourse with her, or only once a year, or only by night, which voids the marriage. Al-Nawawi in the Minhaj holds that the marriage is void on a condition of no intercourse; in the Rawda he holds it valid, since that is his right, and he may waive it. ^{102 103} A condition of option. If either spouse makes an option a condition of the marriage, the marriage is void, since it is built on binding force. A condition of option on the dower makes the marriage valid, but the dower is void and the dower of the like is owed, since a dower is not a pure exchange and does not admit option. ¹⁰³

A valid condition. The Hanbalis hold that a valid condition is binding, such as a wife's condition that he not take her out of her parents' house, on Umar's words "she has her condition". If the husband fails it, she may annul the marriage; by his intention alone, but by his act. If the house becomes unusable, the husband may live with her where he wishes. ¹⁰⁴ Invalid conditions that void the marriage. There are four: the marriage by exchange (shighar), in which two men marry their daughters to each other without a dower, forbidden by the Prophet; the marriage of a "restorer" (muhallil), on the hadith that the Prophet cursed the restorer and the one for whom he restores; temporary marriage, forbidden on the day of the conquest; and a condition that negates lawfulness, or making the start of the marriage depend on a future event other than God's will, as in "I marry you my daughter when the new month comes". ^{104 105} Invalid conditions that do not void the marriage. Such as an option in the marriage or the dower, no intercourse, waiving a right that the contract brings, such as maintenance or the turn, withdrawing after intercourse, travel or residence at the wife's choice, or her father's choice. Those conditions are void; the marriage is valid, because such conditions refer to an added matter that need not be named. ^{105 106} A wrong description. If a man marries a woman he takes to be a Muslim and she is a Christian, he may annul; if he stipulated a virgin and she is not, or stipulated freedom from defects that do not usually annul, such as blindness or deafness, he may annul; annulment by an option of condition needs a judge's ruling. If the wife proves better than described, there is no option. ¹⁰⁶ The effects of a valid marriage. These are shared between the spouses, or specific to each. ¹⁰⁶ First: the shared rights. (a) Good companionship is obligatory on both, according to the Malikis, Shafi'is and Hanbalis, on the Qur'anic command "live with them honourably"; it includes good conduct, not withholding what is due, and giving it with cheer. It is recommended to be gentle and to bear the other's annoyance; the Hanafis count it recommended, on the hadith "the best of you is the best to his family". (b) Each enjoys the other: the Shafi'is and Hanbalis allow each to look at and touch the whole body, on the hadith "guard your nakedness except from your wife or what your right hand owns". The Hanafis hold that the husband may have intercourse with his wife except during menstruation, post-natal bleeding, ihram, and zihar before expiation; the Malikis allow looking at the whole body and enjoyment short of anal intercourse. The husband may ask for intercourse whenever he wishes, and the wife may ask too; she may compel him once in law, and beyond that it is a matter between him and God. (c) Inheritance, according to the verses on inheritance in the surah of al-Nisa'. (d) In-law prohibitions: the wife is forbidden to the husband's fathers, grandfathers, sons and grandsons; the husband is forbidden his wife's mothers and daughters; and he may not combine a wife with her sister, aunt on either side. (e) Paternity of a child from the marriage bed, on the hadith "the child belongs to the bed". ^{106 107 108 109} Second: the husband's rights over his wife. The husband's rights over his wife are greater than hers over him, on the verse that the men have a degree above them. (a) Her obedience to him is obligatory by agreement, on the verses that men are the managers of women and that they spend, limited to what is not disobedience of God, on the hadith "there is no obedience to a creature in disobedience to the Creator". ¹⁰⁹

The rest of the husband's rights. (b) The wife must let him enjoy her, if she is fit for intercourse, has received her prompt dower, and he asks for her to be handed over. (c) She may not admit to his house anyone he dislikes, on the hadith of Amr ibn al-Ahwas: "your right over your wives is that they not let anyone you dislike onto your bed, nor admit anyone you dislike into your houses". (d) She may not leave the marital home without his permission, on the hadith that a woman asked the Prophet about the husband's right and was told it is that she not leave her house without his leave, provided the house is fit to live in. (e) Travel with the wife. The Hanafis differ: some allow him to take her wherever he wishes if he has paid her prompt dower or the dower is deferred, others forbid leaving her town, since a stranger is harmed. The Malikis allow her to refuse to be with him until the prompt dower is paid; once she has handed herself over she may refuse only upon a claim to the dower. The Shafi'is hold that she must travel with him, except to collect a fixed prompt dower. The Hanbalis allow him to travel with her wherever he wishes, unless she has stipulated her own town, and then her stipulation holds. (f) Service: most jurists hold that a wife is not obliged to serve her husband and that it is better for her to do what custom requires; the Hanafis hold it an obligation in conscience but not in law; the majority of the Malikis hold her bound to the inner tasks custom requires of a wife. (g) Discipline for disobedience, on the verse that one may admonish and separate from beds and strike the disobedient wife. (h) Divorce is his right, lawful by the Qur'an, the Sunna and consensus; the majority hold its basis is permission. ^{110 111 112} The wife's rights. (a) The dower, obligatory by the Qur'an ("give women their dower as a gift"), by the Sunna (the Prophet's words to a man seeking marriage, "seek even an iron ring"), and by consensus. (b) Maintenance, on the verse "for the father of the child is their provision and clothing in kindness", and the hadith on the rights of wives. (c) A servant for her, as part of good companionship and a need she has constantly. (d) Equal division among co-wives, by agreement, on the hadith "a man with two wives who does not treat them equally will come on the Day of Resurrection with half his body fallen". (e) Sleeping with her: the Hanafis and Hanbalis require it, the Malikis and Shafi'is recommend it. (f) Keeping her chaste with lawful intercourse; the jurists differ on whether it is obligatory and on withdrawal from a free wife. ^{113 114} The effects of an invalid marriage. An invalid marriage is one that lacks its pillars or the conditions of its conclusion and validity; the jurists count both void and flawed marriages as invalid. By itself it has no legal effect, unless followed by intercourse, and then: (a) the dower is owed, since intercourse brings the prescribed penalty or the dower, and where the penalty is averted by the doubt of the contract, the dower is owed; (b) the waiting period is owed by the woman who was consummated; (c) lineage is established by intercourse in general, to protect the child's right; (d) in-law prohibitions are established by intercourse, by agreement. ^{114 115} Marriages of unbelievers who are not apostates. The majority of jurists (the Hanafis, the sounder Shafi'i view, the Hanbalis and one Maliki view) hold that the marriages of unbelievers among themselves are valid. They cite the Qur'an calling the wife of Pharaoh and the wife of Abu Lahab "his wife", and the wife of Abu Lahab, whom the surah of al-Masad calls "his wife"; that marriage is the practice of Adam and his law, and the hadith "I came out of a marriage, not an illicit union"; and that if their marriages were invalid, the lineage of many prophets, born of two unbelieving parents, would be impugned. The Hanafis add that marriage between dhimmis is valid even when their laws differ, since unbelief is one religion, as God's Word says "for you your religion, and for me mine". ¹¹⁵

The unbelievers' marriages, concluded. Any marriage valid among Muslims, having met the conditions of validity, is valid among dhimmis; a marriage invalid among Muslims is divided in their case, into what is valid and what is void. Al-Kasani says this is the view of the three companions; Zufar holds that any marriage void among Muslims is void among dhimmis, and that if they become Muslim it is dissolved. The three Imams' ground is that we are ordered to leave the unbelievers to their faith, except what is excepted, and this is not excepted; Zufar's ground is that by accepting the dhimmi covenant they have bound themselves to our rules. The Shafi'is hold that if an unbeliever divorces his wife three times and they then become Muslim without an intervening marriage, she is not lawful to him without a restorer. The Hanbalis hold the unbelievers' marriages subject to the same rules as Muslims' in maintenance, division, dower, ila', divorce, khul', and the status of muhsan, since unbelievers are addressed by the branches of the law; but they are not left to marriages forbidden by their own beliefs. The Malikis hold their marriages void in the prevailing view, valid in another, with a middle view that a marriage is valid if it met the conditions of validity; this affects whether a Muslim may conduct one. A Shafi'i view holds an unbeliever's marriage suspended: if they become Muslim and are left to it, it is shown to be valid. ^{116 117 118} The ending of marriage. Marriage ends by several causes: some as annulment, which removes it from its root or stops its continuance, and some as divorce or its equivalent. ¹¹⁸ a. Death. The marriage bond dissolves at the death of either spouse; the survivor inherits, a widow mourns and observes the waiting period, and deferred dower falls due. ¹¹⁸ b. Divorce. Lifting the bond of a valid marriage now or later by a particular word or its equivalent; divorce is lawful by the Qur'an, Sunna and consensus, and the jurists differ on whether its basic rule is permission or prohibition. ¹¹⁸ c. Khul'. Separation for a consideration from the wife, by the word khul' or divorce, on the verse "if you fear they will not keep God's limits, there is no fault in what she gives for it", and on the Prophet's words to Thabit ibn Qays, the first khul' in Islam, "take back the garden and divorce her once"; consensus. ^{118 119} d. Ila'. If the husband who has sworn to abstain persists beyond four months, the Hanafis hold divorce falls at the end of the period; others hold that it does not, but the wife may refer the matter to the judge, who orders the husband to return, and if he refuses, the judge divorces her. ¹¹⁸ e. Li'an. When mutual cursing is complete, the spouses are separated, on the Prophet's words "the two who curse each other, once separated, never come together again"; the jurists differ on whether separation needs a judge, whether both must curse, whether it is divorce or annulment, and whether the prohibition is permanent. ¹¹⁹ f. The husband's insolvency. If he cannot pay the prompt dower, the Hanafis do not separate, and she may refuse to hand herself over until she has the prompt dower; the Malikis separate for insolvency that is not expected to end, before consummation. If he cannot maintain her, and his insolvency is proved and she asks, the majority separate them, contrary to the Hanafis. ¹¹⁹ g. Apostasy. If either spouse apostatises, they are kept apart; the jurists differ on whether the separation is immediate or deferred, and whether it is divorce or annulment. ¹¹⁹ h. The husband's absence. The Hanafis and Shafi'is do not separate until the husband's death is established or a time passes beyond which he does not usually live; the Malikis and Hanbalis classify the cases of absence, each with its rule. ¹¹⁹ i. Loss of suitability (kafa'a). Where the schools require suitability for the marriage to be valid, its loss makes the marriage void or flawed; those who do not make it a right of the woman and her guardians, so the marriage is exposed to annulment. ¹²⁰ j. Prohibiting foster-suckling after the contract. A prohibiting foster-suckling that arises during a marriage cuts it, as foster-suckling before the contract prevents it; the spouses must separate, or the judge separates them, since the marriage is shown to be void. ¹²⁰ k. A defect that gives an option. If one spouse finds the other has a defect that gives an option, unknown before the contract and not accepted after knowing it, and the conditions for separation for defect are complete, he may annul the marriage for it. ¹²⁰ Cross-reference. Marriage of shighar: see the entries on dower and forbidden marriage. The forbidden marriage entry (nikah mamnu'a) begins on p.16154 and is a separate headword. ¹²⁰