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Evidence of Hanafi Scholars That Marriage is Valid Without a Guardian (Wali)

Evidence of Hanafi Scholars That Marriage is Valid Without a Guardian (Wali)



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Published by: Abdullah on Mar 16, 2009
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anafi fiqh saying that a marriage withoutHMy question is regards to the
the girls wali (as long as the husband to be is kuf) is valid. What evidence fromAuthentic Ahadith and Qur'an is there to support this that Imam Abu Hanifa found?
Answered by Sidi Salman Younas 
 The underlying reason behind the emergence of differing opinions among the schools of lawis due to the different methodological approaches each school employs to derive rulings. Howare texts looked at, understood, what they indicate, imply, point to and so forth are questionsthat the scholars differ upon, since the primary sources are not always decisively clear-cut intheir transmission and meaning. Yet, it is agreed upon within Sunni Islam - by consensus -that the interpretative methodology of all four schools is sound and one may follow any oneof the four schools he or she wishes. This is a crucial point to take note of, and respecting the positions conveyed by the four accepted schools of law as valid and follow able is essentialwhether one understands the proof or legal reasoning behind them or not.With that said, one must first understand how Hanafi methodology operates in order tounderstand the reasoning behind certain positions. A key feature of Hanafi usul is that it gives precedence to the decisive texts (
) over those that are probabilistic (
) in nature,and understand the latter in light of the former. For example, according to the school theminimum obligatory recitation in prayer is one verse in two rakaahs of the obligatory prayer,and in each rakaah of the non-obligatory prayers. The reason for this is due to the Quranicstipulation:
  
“Recite that which is easy for you of the Qur’an.”
(73:20) Here, within the verse, the particle
' is `
i.e. it is a general expression. In the HanafiSchool the general expressions of the Qur'an are decisive in their indication (
qati` al dalala
)unless decisively conditioned. Thus, when Allah says
“recite that which is easy”
what ismeant is “recite anything that is easy” and "anything" of the Qur’an is any extent that would be minimally considered the Qur’an, namely a verse. The hadith commanding the recitationof the Fatiha and a surah are not at the same level of decisiveness but are
khabar wahid 
(lone-narrated reports), which cannot condition and specify (
) the general purport of theQur'an. Thus, the Hanafis consider the recitation of the Fatiha to be at the level of wajib, notfardh - understanding its proofs in light of those that are decisive. Such an approach of  placing evidences side by side - the
and the
- is central to the Hanafi school.(Usul al Shashi, pg: 39 ed. Kutub Khana Mazhari) In light of the methodological framework defined above, it is possible to explain the Hanafi position on marriage (
) and the condition of a guardian (
). This, though, alsorequires some preliminary remarks pertaining to women and their legal status and rights. Itshould be known that the Qur'an and sunnah, both, decisively establish a woman as a fulllegal person who has rights over her own transactions, property, wealth and so forth. For example, the Qur'an states addressing both men and women:
  
"Oh you who believe! When you deal with each other in transactions..."
"If you find them of sound mine then deliver over to them their fortune"
(4:6)And the numerous prophetic narrations commanding women to give their wealth in charity of their own accord, prohibit men from usurping their property, and so on all show theindependent authority of women pertaining to such aspects. This is the position of the all four imams, as stated by Ibn Qudama in his al Mughni.(Also see al Mawsu`at al Fiqhiyya, section on al hajr)Similarly, the
is also considered a contract (
), according to the usage of the fuqaha- similar to other financial contracts
(`uqud maliyat 
).(Kanz al Daqa'iq, Pg: 285 Ed. Dar al Isha`at; Fath al Qadir,
kitab al nikah
) This is true even according to the Shafi`i school, as defined by Imam Nawawi in his Al-Minhaj. Thus, one will find commonalities between the sales contract (
`aqd al baya`)
and themarriage contract such as the integrals of offer and acceptance, the existence of twotransacting parties, rulings related to contractual conditions, and so forth. According to theHanafis, since marriage is a kind of contractual transaction and women have the full right toengage in transactions they also have the full right to engage themselves in marriage, on thecondition that they are sane (
) and have reached adulthood (
). The basic principlehere is "one who has the right of disposal over his/her wealth has the right over his/her self,and one who does not [s: have such right over his wealth], does not [s: have such rights over his self]."(Durr al Mukhtar vol:2, pg: 209 ed. H.M Saeed) Since a sane, adult woman has the right of disposal over her wealth she also exercises suchguardianship over her self and can therefore marry without the permission of her guardian andnor can her guardian force her into a marriage, even if she is a virgin - contrary to the positionof the Shafi`i school. 
:Proofs from the Quran
 This is also established decisively by the Qur'an itself in the following verses 
Allah Most High states
   
 "When you divorce women, and they have reached their term, do not forbid them frommarrying their husbands, when they have agreed together honourably."
(2: 232).Imam Jassas states in his brilliant work Ahkam al Qur'an: "And His, Most Highs, saying,'do not forbid them' means do not prohibit them or do not place constraint upon them in marrying. Verily, in this verse is a clear indication of thevalidity of marriage when she contracts it herself, without a guardian or the permission of her guardian. Firstly, because the annexing of the contract [s: the marriage contract] is towards
her without conditioning it with the guardians permission. Secondly, It prohibits [s: theguardian, former husband, and all others] from forbidding when the marriage partners reachmutual agreement." (Ahkam al-Quran 2/497-499) Those who state that the prohibition of forbidding the woman from remarrying is only anaddress to the ex-husband are not correct. As Imam Jassas states, it is permitted to take theverse on its general and apply such prohibition to the guardian, ex-husband, and all of people. 
Allah Most High states
  
 "If he has divorced her, then she is not lawful to him until she marries another man,"
 (2:230)Herein the act of marrying (
) is connected (
) specifically to the woman and notconjoined (
) to both the woman and her guardian. Similarly, Allah states: 
    
"Those of you who die, leaving wives, they shall wait by themselves for four months andten nights; when they have reached their term then it is no fault in you what they maydo with themselves honorably."
(2:234) Imam Jassas comments, "And her action [of marrying] is permitted for herself (
 fi nafsiha
)without the condition of a guardian." To summarize the above: 
All these verses are general in their purport.
Hanafi methodology dictates that the general expressions of the Qur'an are decisive inwhat they in dictate. Here, the generality of the verses clearly permit women to marrythemselves off and connect the act of marrying to the woman,
 None of them condition the above with the consent or permission of a guardian.
:Proofs from Hadith
 Further, there is also proof in hadith literature for this and even clear incidents wherein themarriage of a woman was performed without the presence of her guardian: 
It is narrated in the Muwatta of Imam Malik, in a rigorously authentic narration (sahih)that a woman came to the Prophet (Allah bless him and grant him peace) and gave herself inmarriage. The Prophet (Allah bless him and grant him peace) married her to one of hiscompanions. There was no wali of the woman present in this situation.(Muwatta Imam Malik 
. Kitabul Nikah
, Hadith 968. Narrated by Sahl ibn Sa'd as-Sa'idi. Alsoin Sahih Bukhari,
 Kitabul Nikah
, Hadith 4697 ) 
It is narrated by Imam Tahawi that; 

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