Sharh as-Sunnah : Lessons 35 : Point 47
Shaykh Fawzan | Dawud Burbank [Audio|English]
Imaam Barbahaaree rahimahullaah said:
And there is no marriage except with a guardian (walee) and two just witnesses and a dower (sadaaq) whether it be a small amount or a large amount. And whoever does not have a guardian then the ruler is the guardian for one who does not have a guardian (walee)
This is a fiqh issue and it is an explanation of the conditions for the correctness of marriage (nikaah) with the jumhoor (majority) of scholars and from them is that it should be along with the permission of the walee (guardian) and that a woman may not marry herself off and from its conditions is al ish–haad (to have witnesses) to the contracting of the marriage. So, a marriage may not be contracted in secret without witnesses. So, from the position of the Muslims is to openly announce marriage and the matter of the walee (having a guardian) is a point where there is some disagreement. The jumhoor (great majority) hold that having the walee (guardian) is essential whereas with the Hanafees, there is no harm in a woman marrying herself off without the permission of the guardian. However, this is a saying that is not the correct saying, it is contrary to the evidence because of his saying sallAllaahu `alayhi wa sallam:
“There is no marriage except with a guardian and with two just witnesses.”
And his saying in the other hadeeth:
“A woman may not marry off another woman and a woman may not marry off herself, for the fornicatress (the one who commits zina, fornication) is the one who marries herself off.”
“Whichever woman gets married without the permission of her guardian then her marriage is invalid, invalid, invalid.”
So even though some of the jurists declare it to be correct (meaning a woman getting married without the permission of her guardian; walee) based upon ijtihaad (personal striving) from that scholar then what is counted is the evidence and therefore the author stated this matter even though it is a matter of fiqh to make clear that this is the correct position and it is the position which the majority of the People of Knowledge were upon that which is proven by the Prophetic Sunnah and in order that the marriages of the Muslims should be correctly regulated and not be entered upon by secrecy and ihtiyaalaat (fraudulent tricks). Rather they should be clear and open for indeed marriages are from the most important of affairs because upon them families are built and from them offspring are produced and upon them lineages are built and something even more severe is built upon them rendering the private parts lawful. So, therefore it is essential that the legislated principles are applied to contract a marriage as occurs in the ahaadeeth and in the aayahs.
And his saying, “And it should be with a sadaaq (dower) and with a dower whether it’s a small amount or a large amount,” as for the sadaaq (dower) then it is not a condition (shart). However, it is waajib (obligation). And therefore, if the marriage were to be contracted without a sadaaq (dower) then the contracting of the marriage will be correct. However, a sadaaq (dower) will be appointed for her in accordance with that of women who are like her because this is a right of hers.
His saying, “And whoever does not have a walee (guardian) then the ruler is the guardian for the one who does not have a guardian,” having a walee (guardian) is essential.
And the walee (guardian) is the wife’s close male relatives; the closest and then the next closest from them. Firstly, her father then her grandfather and so on upwards and then her son and the son of her son and so on downwards and then her full brother and then her brother through her father; meaning her brother who shares the same father but the mother is different and then her full paternal uncle and then her uncle who is the brother of her father and then the son of her full uncle (son of the father’s brother) and then the son of her uncle who is the brother of her father. This is the guardian (walee) of the woman.
And if it occurs that a woman does not have a walee (guardian) from her close male relatives then her guardianship is taken on by the ruler or the one who represents the ruler and he is the judge in the court. So marriage must have regulating principles and it may not be anarchy just in accordance with the desires and lusts of the people. 
 Reported by Imaam Ahmad and Aboo Daawood and At-Tirmithee and Ad-Daarimee and At–Tahaawiyy in Sharh Ma`aanee al-Aathaar from a hadeeth of Aboo Moosaa Al-Ash`aree radiyAllaahu `anhu.
Translator’s side point: This hadeeth was declared saheeh (authentic) by Shaykh al-Albaaniyy as hadeeth 1,839 in Irwa al Ghaleel .
 Reported by Ibn Maajah and Ad-Daaraqutnee in his Sunan and Al-Bayhaqee in his Sunan al-Kubraa from a hadeeth of Aboo Hurayrah and it was declared saheeh (authentic) by Ibn al-Mulaqqin in Al-Badr Al-Muneer to the standard of Muslim.
Shaykh al-Albaaniyy in his checking of Ibn Maajah declared this hadeeth saheeh except for the sentence about az–zaaniyah (fornicatress), the first part being authentic supported by other narrations; “A woman may not marry off another woman and a woman may not marry herself off”, that being authentic.
 Reported by Imaam Ahmad in his musnad and by Aboo Daawood, At-Tirmithee and Ad-Daarimee and by At–Tahaawiyy in Sharh Ma`aanee al-Aathaar from a hadeeth of `Aa`ishah radiyAllaahu `anhaa.
Side point: This hadeeth was declared saheeh (authentic) also by Shaykh al-Albaaniyy.
Side point: Shaykh Ahmad an-Najmee rahimahullaah said in his explanation:
“And there is no marriage except with a guardian and with two just witnesses with a dower whether it be a small amount or a large amount,” this is the position of the jumhoor (the great majority) and it is what is the truth. So, therefore, those who say that the woman can marry off herself without the permission of her guardian is a saying, which is false, opposite to the evidences and contrary to them. Indeed, it opens up a breach for the people of corruption. So, it is obligatory to believe that this is futile. And likewise, her getting married without a dower. However, if the dower is not stated at the marriage then what is correct is that it does not make it null and void and is still counted as a valid marriage but she should be given a dower the same as women who are like her and her close relatives and women of her age; meaning the dower that is well-known amongst the people, whether it be a small amount or a large amount, at that time and at that place and this woman is called Anwalliyah; one who has given up the affair to someone else with the jurists.
His saying, “Whoever does not have a guardian then the ruler is the guardian for one who has no guardian; a walee,” this is the correct saying. So the woman who does not have a guardian then her guardian will be the ruler because of the hadeeth:
“The ruler is the guardian for the one who does not have a guardian.”
Some of the evidences with regard to the necessity of having a walee that brings some of the aayahs of the Qur·aan, each of the aayahs that they bring Sooratun-Noor (24) aayah 32, Sooratul-Baqarah (2) aayah 221, Sooratul-Baqarah (2) aayah 232, each of them in an address with regard to marrying the women and the address with regard to marrying off is the addresses to the men; men marrying off the women as opposed to an address to the women looking to get married. With regard to the point where the Shaykh mentioned that a woman getting married without any guardian and saying that it’s permissible for a woman to marry herself off without any guardian, this opens up a door to people who want to cause corruption.
And they mention in the footnote, Shaykh Ahmad an-Najmee himself he said, “I myself heard that there was one of the jurists from the Hanafee’s in one of the Arab lands and he had a son who was deviant and he used to hear from his father that it is not a condition for marriage that a woman has the permission of her guardian. So, this son when he used to hear that, used to accompany a group of people who were evildoers and they used to do illicit sexual acts with the women. He taught theevil group that what they should do is say to the prostitute woman, when you go to pay her you should say, “marry yourself to me” and she should say “I marry myself to you” and he should say “I accept it” and then when he’s finished his night with her then you say to her “you’re divorced” and on the second night, you can do it with a different woman.
Shaykh said, “So you can see that this madhab has been used here contrary to the evidence as a means for causing corruption even though the Hanafee madhab itself does not make the like of this permissible. However, it makes permissible only a marriage, which is going to be permanent and it does not make permissible mixing waters of one man with another when divorced. Rather, there must be an `iddah (waiting period) making sure her womb is clear, even a woman who frees herself by khulah or a slave girl who is poor.”
Ithaaful-Qaaree bit-Ta`leeqaat `alaa Sharhis-Sunnah
(A Gift To The Reader In Annotation Of Sharh As-Sunnah)
by Shaykh Saalih ibn Fowzaan al-Fowzaan hafizahullaah
Translated by Aboo Talhah Daawood Burbank, rahimahullaah
Transcribed by Saima Zaher.
Posted with kind permission from Dawud Burbank rahimahullaah
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