You are on page 1of 8


Hzr. Maulana
Sayyed Abdul Hassan Ali Nadwi
(President of the
All India Muslim Personal Law Board)
The Islamic Fiqh Academy of India is such an organization and institution of
which every Indian Muslim, especially the scholars and intellectuals can rightly be
proud, not only proud, but grateful to the Lord.
It is a purely and intellectual, scientific and jurisprudential organization to which
the countrys most distinguished scholars belong such scholars who are distinguished
through their soundness in doctrines, their sharpness of intellect and reason and their
sheer immeasurable knowledge.

Hazrat Maulana Fufti

Muhammad Rafi Uthmani (Arabic)
(Grand Mufti of Pakistan)
My delight and my regret, both know no limits. I am utterly delighted because of
the fact that the scholars of India have dedicated themselves to a magnificent work,
which was needed by the whole world, especially such countries in which Musliim are in
the minority.
I am full of regret because we, inspite of living in Pakistan, could not begin this
work on such a large scale, in an organized manner.
The Fiqh Academy has taken an extremely important step, for which we have
been waiting since so long.

Shaykhul Islam
Justice Maulana Muhammad
Taqi Uthmani (Arabic)
(Vice President of the
Islamic Fiqh Organization Jeddah)
I know Maulana Mujahidul Islam since very long, without ever having met him
personally. I only know him as scholar and a jurist. It was not known to me that Allah
the Most High has entrusted him an invaluable gem, that them is the ability to gather the
Muslims on a common platform.
Today, after participating in this gathering, after meeting the scholars of India who
are all an embodiment of knowledge, I came to realize what a tremendous achievement
of theirs it was to establish this academy.
May Allah in His infinite mercy accept this achievement and inspire the members
of this academy to attain all the objectives for which this academy has been founded, in
a way that please Him.
On this very occasion and keeping in view the aims and objectives of this
academy, it suddenly occurred to me that this academy is in fact the execution of one of
our beloved Prophets (Arabic) sayings, which has been given in the Mulajjam Tabarani
and which Allamah Hashami has also quoted in Majmauz Zawaid, namely that Hazrat
Ali (Arabic) once asked the Messenger of Allah (Arabic), Ya Rasool Ullah, what do you
order us to do in case we face a problem the answer to which is neither in the Holy
Quran, nor in the Sunmah? The Messenger of Allah (Arabic) answered, Then you
should consult men of learning who are also stout worshippers. You should not act
according to the opinion of an individual, neither should you force a certain individuals
opinion on the public. Rather consult a number of pious men of learning, whatever be
the outcome of this consultation, consider it to be the order of Allah and His Messenger
The Messenger of Allah (Arabic), the Leader of the Worlds, has in the statement,
told us the way to solve all problems that might arise till the day of Judgement, namely
that at a time only way to solve all problems that might arise till the day of Judgement,
namely that at a time when the concept of Ijtehad has nearly come to an end, the only
way to solve any new problem is to gather such jurists who are also inclined to worship,
so that they may together work out a solution. But the Holy Prophet (Arabic) has
mentioned two characteristics of the people who are to be brought together, namely that
they must have a proper and profound understanding of religion and the religious
injunctions, preserving the true spirit and essence of faith.
And the second
characteristic which was mentioned was that these men of learning be not were
theoreticians, i.e. being only jurists in theory, knowing the diving injunctions only in
theory without acting in accordance with their knowledge. Someone who does not put
his knowledge into practice, acquiring knowledge from such a person is of no use at all.

The reason behind this is that religion is not merely a concept or a philosophy. A
person who adopts religion only as a concept, elucidating its principles cannot be called
a master of his subject. Religion consists of deeds, it is a message and an invitation.
As long as one does not properly act in accordance with it one will not be able to have a
proper understanding of it.
[Place not difficulties in the way of their marrying their husbands, if it is agreed
between them in kindness.]
(Surah Baqarah, V.232)
[Unto men a fortune that which they have earned, and unto woman a fortune
from that which they have earned.] (Surah An-Nisa, V.32)
A Prophetic Tradition:
On the authority of Abdullah bin Buraidah(Arabic), narrating from his father,
Once a young girl came to the Holy Prophet (Arabic) and she said: My father has
married me to his brothers son, so that he may be cured from his brothers son, so that
he may be cured from his parsimony. He (Arabic) said: Let her herself decide that
matter. She then stated, I authorize what my father did (i.e. I accept the marriage), but
I wanted women to know that their fathers have got no authority over them in this matter
(i.e. marriage).
(Ibn Majah, NasaI, Ahmad)

There is nothing to equal the rights which Islam has granted to women, and the
tremendous amount of respect it has given to them, neither in the religious of the world,
nor in any secular administration system of the past or the present.
The philosophers and law givers of olden times, in whom the west unduly prides
itself so much, they did not even consider women as human beings. Some enlightened
thinkers of that age held that women are a kind of worthless toy, very much inferior to
men, but slightly superior to animals. No class of people was more oppressed than
women and slaves. At the time when the august Messenger of Islam (Arabic) was born
women were considered to be a mans personal property. The neither could contract a
marriage on their own, nor did they have any say regarding their future spouse. If their
guardians, due to covetousness, and greed, decided not to get the women under their
guardianship married at all, then there was nothing to check such behavior, or to
prevent them from doing so.
The Messenger of Allah (Arabic) was sent as mercy for the worlds, especially for
the weak, oppressed and exploited classes of mankind. He gave women an honourable
position in society, he granted them the right to inherit and he let marriage be such a
contract in which a man is not owner of a woman, and the woman not the property of
man but in which both spouses are parties of a contract, two intimate, honourable and
respectable companions during the journey of life.
The laws of guardianship are just another outstanding examples of the just
teachings of Islam, which aim at establishing justice in society. Unfortunately it is true
that a girls preferences and her consent are hardly given any importance. Often she is
forcefully contracted in marriage by her guardians, or she was simply married off without
her consent. It is a fact that in our society, especially in the rural areas, a girl is almost
completely deprived of her right to choose a husband, because in the environment in
which she lives she has absolutely not right to raise any objections against a decision
made by her parents or any other of her guardians.
Under such circumstances all future marriages are overcast by dilemnas,
whereas the shariat does not authorize this except for a few juristic schools of thought,
according to which a father has got the right to compel his virgin daughter, when it
comes to marriage and according to which seeking the girls opinion in this affair in only
Imam Abu Haneefah (Arabic) and his followers have given a verdict regarding
this that neither a father nor any other guardian has got the right to force a mature girl
into a marriage against her will. It is incumbent on the father on the other guardians to
take the girls consent, and it is not correct to put the girl under any kind of pressure.
Further has been stated that according to Imam Abu Haneefah (Arabic) and his
followers the guardians have got a right to object only for two reasons:
1. The husbands not being of the same rank as the girl.
2. The mahr being less than what is usually given in the girls family (Mahr Mithl).

Hazrat Aishah (Arabic) who narrated the tradition concerning the presence of a
guardian as a condition for marriage, has, according to Imam Malik (Arabic) herself
contracted her niece in marriage, in the absence of the girls father.
Imam Abu haneefah (Arabic) does not consider guardianship to be a condition for
marriage. He holds that a girl has got the right to manage her financial affairs in any
way she pleases. She has also got the right to do with regard to herself whatever she
pleases. He holds that all the traditions which state that guardianship is condition for
marriage, are applicable only to minor girls, and that this peculiar case was generalized
through analogy and the usual Fiqh principles stated in the Hadith.
Some traditions regarding option and choice have been quoted, so that we may
orient ourselves after them and take them as guideline in this important problem. The
regulations concerning marriage have been given great importance in the Holy Law:
Hazrat Abu Hurairah (Arabic) narrates:
Three things are valid and sanctioned, no matter whether they were done in
earnest as in jest: marriage divorce and revoking divorce. (Abu Dawood)
In three matters there is no concession for play: Divorce, Marriage and
emancipating a salve. (Tabarani)
Hazrat Abu Hurairah (Arabic) narrates:
A thayyiba (matron) should be consulted with regard to herself. If she remains
silent, then this fails is to be interpreted as her consent. And if she refuses, then is it in
no way permissible to do anything against her wishes.
Hazrat Khansaa bint Hizam Ansariyah (Arabic) narrates, that her father got her
married and she was a thayyiba. She did not like this union and therefore she went to
the Messenger of Allah (Arabic), who then dissolved the marriage which her father had
arranged. (Bukhari)
Hazrat Ibn Abbas (Arabic) narrates:
A virgin girl came to the Messenger of Allah (Arabic) and told him that her father
had contracted her in marriage with a person whom she dislikes. The Holy Prophet
(Arabic) then gave her the opinion to dissolve the marriage or to keep it intact. (Abu
Hazrat Ibn Umar (Arabic) narrates:
After the death of Uthman bin Mazoon (Arabic) his daughter was contracted in
marriage by her paternal uncle. The girl did not like this union, so she was then married
to someone whom she liked. (Ibn Majah)
Hazrat Abu Hurairah (Arabic) narrates:

A woman without a husband (i.e. a widow or a divorcee) cannot be contracted in

marriage unless she herself orders it. A maiden cannot be contracted in marriage
without her consent. The Sahabah (Arabic) then asked, Ya Rasoolullah, what is her
consent? He replied Her silence. Hazrat Aishah (Arabic) then said: O Messenger of
Allah, a maiden is very modest. He then said: Her observing silence means her
(Bukhari, Muslim)
Hazrat Abbas (Arabic) narrates:
A woman (who was previously married) has got more right over herself than her
guardian. (Muslim)
Shah Waliullah Muhaddith Dehlawi (Arabic) writes in his work: Hujjatullah alBalighah after quoting the Hadith (Arabic) the following, that it is not permissible for the
guardians to make their own decisions, since they do not know everything what a
woman knows about herself, and also because in the end it is the woman who has to
live with her husband i.e. cope with any potential benefit or harm. istemar implies that
the woman herself gives in very explicit terms the order to get a marriage arranged for
her and Istezan means to ask for the girls permission before contracting her in
The lowest stage of granting permission is to observe silence.
interpreted as permission only in case the girl is a maiden.

This will be

The problem of guardianship is not a new one, but the media have misinterpreted
it and presented it completely out of proportion, some incidents as well as certain
changes in the social values, changing preferences with regard to future spouses, and
the new generations tendency to pay no heed to their elders advice in personal
matters, which is indeed no good sign, keeping these and other similar problems in view
the Islamic Fiqh Academy decided to make Wilayat fin Nikah and the Masaail (related
there with topic of discussion in its 11th seminar which was held from 17the to 19 th April
here in phulwari Shareef, Patna. It has been attempted to cover all the essential and
important Masaail of guardianship, the meaning of Wilayat the rights of the guardians,
their contracting their male and female wards in marriage, further now they are
supposed to administrate their wards wealth and assets, the importance and need of
guardians, the rights of boys and girls when it comes to marriage, what they have to
consider when making use of their rights. Keeping all above in view, an enquiry
considering guardianship in marriage was worked out, the answers to which are in front
of you, in the shape of this compilation.
Besides the enquiry and suggestions (which are as a matter of fact the outcome
of the essays and Munaqashaat) there are some introductory treatises basic writings
related to the problem of Wilayat. The short answers and essays which came at a later
time during the seminar were collected in such a way that all the answers that were
given by each writer to a certain question were compiled in one place, so that it is more
convenient for the reader to read, understand and compare the different views. In the

end of this book is a chapter entitled Munaqasha, in it are given the exchanges of
optioning which took place among the participants of this seminar.
The purpose of such Fiqh seminars is to attain the pleasure and good will of
Allah, and to explain and interpret His religion, thus presenting for each era in a
practical manner to the people. The greatest and most important benefit of those
seminars is that they have brought forth scores of such brilliant young men of learning
who work hard, delicatedly, honestly and cautiously on the solution to modern problems.
The weightiness of this work cannot be felt only in the subcontinent, but everywhere in
the Islamic world.
Finally, I pray to Allah to inspire us to do such deeds which attract His good will
and pleasure and to save us from all kinds of deviations, erroneous notions and evil
deeds (Aameen).
Qadi Mujahidul Islam Qasmi
12 Rajab, 1421 A.H.

Marriage is an important Masala of social life, since a family comes into being as
a result of it. Therefore for the points stressed most in the Holy Quran, and the
Sunnah, right after the acts of worship are all the regulations concerning marriage,
divorce, rights, and duties of spouses, and so on.
The injunctions which Islam has given regarding life aim at keeping the marital
bond as strong and long lasting as possible. To achieve this the Shariah has adopted
different policies, among which there is guardianship as well.
In this modern age, with its ever changing social values some problems
regarding guardianship in marriage have arisen, which required the attention and
consideration of the religious scholars and experts in the field of Islamic legislation. In
this connection the following questions have been submitted.
What are the types of guardianship
and their conditions?
Q.1 What is meant by the term Wilayat in the Islamic Shariat and what are the
conditions for Wilayat alan Nafs?
Q.2 Whom, does the Islamic Shariat grant the right to marry on ones own and in
which cases the arrangement of a marriage has been made the responsibility of the
guardians? Also keep in view the following points:
As far as guardianship is concerned is there any difference between a boy and a
girl and when does the guardianship over a boy and girl end.
What rights does a mature girl of sound reason have over herself with regard to
marriage? Can she get herself married against the wishes of her guardian? In case she
does so is this marriage legally valid or not? Will the girl be a sinner or not?
(C ) A mature girl of sound reason has married with out her guardians knowledge or
permission. When he learnt about the girls marriage he either accepts it or rejects it.
How does the guardians reaction