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"Does a Woman or Girl
Need the Permission of
Her Father to Marry?"
The following is a translated excerpt from the book Fiqh al-Imam Ja'far as-Sadiq by Sheikh Muhammad Jawad Mughniyah, author of many famous books on Islamic subjects, including the work The Five Schools of Islamic Jurisprudence. As is clear from the text, the Sheikh is of the opinion that a woman or mature girl is free to marry and divorce as she pleases, without it being obligatory that she obtain the permission of her father, as is held by many mujtahids. As most of us know, this conservative ruling makes it very difficult for the young to marry, and makes mut'a relationships impossible for the youth. We at the Nikah Foundation are strongly of the opinion that it is not obligatory for a woman or mature girl to seek the permission of her father to marry, and feel that it is of crucial importance that Muslims, especially the youth, be aware of the freedom that Allah (swt) has given them in this regard.
We have added, in footnote form, a commentary on this text by Hujjat al-Islam Sheikh 'Abd al-Hakeem Carney, who has sought to expand upon the argument presented here, and make the reader aware of the way that hadeeth and usul al-fiqh have been used to argue for the permissibility of marriage without the permission of the woman's father.
Wilayat in marriage is a kind of legal authority over an entrusted person (maula) to a person possessing all of their faculties (kamil). This entrusting will occur because of some sort of deficiency in the entrusted person, and for that person's best interest. The discussion on this involves several points.
The Mature Adult Girl (al-baligah ar-rashidah):
There is agreement that guardianship is established for the immature, under-aged child (sageer and sageerah)1, for the insane, and for the safih2. There is consensus as well that a mature, adult male is independent in issues of marriage, and that no one has authority (wilayat) over such a person. There is, however, disagreement in the mature, adult woman: Is it correct for her to marry without a guardian (waly), and is independent in choosing whom she will as a marriage partner? Or is the independence entirely held by the guardian, and that she has no rights at all in this regard? Or is there some sort of mixture between these two stations, such that neither are independent of each other, and both must be consulted on this issue? Finally, is there a distinction to be made been the virgin and the non-virgin, and between the temporary and permanent wife?
The fuquha have five opinions on this issue. The most famous (mashur) opinion, by the testimony of Allamah Najafi in his Jawahir and Sheikh Ansari in his Makasib, is that no one has any authority over a mature, adult girl. She may, therefore, marry whoever she wishes without limit or condition. Allamah Najafi expresses this when he says that
It is famous...amongst both the early and later jurisprudents that there is no authority over such a girl. In fact, Shareef al-Murtada...reports complete consensus on this.
This is the sound opinion, and we do not challenge it. We can now present the evidences for it:
The concept of wilayat [in this case] conflicts a basic jurisprudential principle (asl), namely that every human being who is adult, sane, and mature is independent in the management of all of his affairs. There is no right to anybody to oppose him in these affairs, be they male or female, so long as the person's choices are not impinging upon the specific rights of others or the general rights of society as a whole. The supposition [underlying this freedom] is that a girl is acting in her own affairs and not the affairs of other than her, and that she possesses all of her faculties in every respect. All of the Muslims, all rational people, and all heavenly and established religions agree upon this principle.
As such, it is not permissible to depart from this principle without certain evidence (ad-daleel al-qaati'). This is because we have explicitly certain belief in this principle, and if we desire to conflict this principle, we can only do so if we have the same explicitly certain belief in a causal factor which would necessitate contravening this principle. This is because "Certainty (yaqeen) is not broken by doubt (shak),"3 nor by probability (zun).4 As such, whoever denies guardianship (wilayat) to such a girl does not have the burden of proof upon. Rather, the onus is on the person claiming such guardianship, by bringing forth special or general evidences for his position.
The marriage of a full-grown person is held, by the common understanding, to be a type of contract. It is therefore encompassed by the ayat of Qur'an which reads: "Fulfil your contracts."5 Rulings are defined by the names which are applied to things, and the fuquha have held to this. Allamah Najafi and Sheikh Ansar both argue, than, that if a girl seeks for marriage someone who is appropriate for her,6 her contract is correct,7 even if her guardian disapproved of it.
The state of Allah the Exalted: "Marry whom you desire from woman." This ayat has generality ('umumat) and is categorical (mutlaq), and its apparent (zahir)8 meaning is the permissibility (ibaha) and correctness of marriage without making reference to the waly. We would exclude the insane, the immature, or the safihah from this,9 so everything else not explicitly excluded remains under the general ruling.10
We have numerous ahadeeth from the Ahl al-Bayt (as) which specifically give the mature, adult girl (al-baligah ar-rashidah) freedom in issues of marriage, and that she is left with the choice of deciding who she wishes to marry. These ahadeeth include:
1) The saying of Imam As-Sadiq (as): "There is no problem in marrying the virgin girl without her father's permission if she is happy with this."11
This hadeeth is explicit in granting independence to the virgin girl in marrying who she wishes, and most certainly for the non-virgin girl. Sheikh Ansari says in Makasib: "This hadeeth does not accept any limitation."
2) Similar to this hadeeth is the narration of Al-Halbi from Imam As-Sadiq (as), when he asked him about mut'a with a virgin girl, to which he replied "No problem."12
Sheikh Ansari says that this hadeeth indicates upon the permissibility of mut'a without permission of the wali, and this indicates upon permissibility in permanent marriage as well. He says: "The madhab of the Shi'a jurists have concluded that there can be no statement drawing a distinction between temporary and permanent marriage,"13 meaning that if mut'a is permissible without a wali, than so is a permanent marriage.
3) Imam al-Baqir (as) is narrated to have said: "If a woman is in charge (malikah) of her affairs, she buys and sells, she gives her money out as she wishes,14 then she is entitled to marry without a wali. If she is not like this, than it is not permissible for her to marry without the permission of her wali."15
This hadeeth is clear is denying any wilayat over the mature woman, and it is general in application, applying both to the virgin and the non-virgin, to both temporary and permanent marriage.
One might say: There have come from the Ahl al-Bayt (as) hadeeth which, by their apparent meaning, indicate that that the father has wilayat over the virgin girl. Some of them indicate upon wilayat in permanent marriage, and some indicate upon a sharing of wilayat between the father and the girl, meaning that neither is independent of each other in this regard.
We would say in response, firstly, that these ahadeeth have weak chains of narration, by the testimony of Allamah Najafi, when he says: "Most, if not all, of these ahadeeth are defective in their isnad, to the point where there is no amending (jabir) them." As such, these ahadeeth are not suitable to be used in opposition to the other ahadeeth. The author of Al-Masalik has given an even longer discussion of this problem than Allamah Najafi, and he has not relied upon any of these ahadeeth.
Second, if we suppose that these ahadeeth are saheeh, we can assume that they refer to something recommended (mustahab), and that even though it is best to that one approach the wali in these issues, the marriage is correct without reference to his consent. We can assume this meaning when we join together these ahadeeth and those that deny wilayat.16 Evidence for this is in the following hadeeth narrated by Ibn 'Abbas. A woman came to the Prophet (s), and said to him: "My father has married me to the son of his brother, and I dislike this." He said to her: "Give permission for what your father has arranged." She said: "I have no desire for what my father has arranged." The Prophet (s) then replied: "Leave me, and go marry whom you wish."
We see that the Prophet (s) has commanded her to give permission for what her father has done. Insofar as she has made known her dislike for what her father did, the Prophet (s) left her with the choice (khiyar). This indicates that the command he gave for her to accept what her father has done indicated upon the mustahab, not the obligatory.
Thirdly, we can suppose that there is no possibility of amalgamating the two sets of ahadeeth, and that the conflict between them remains. In this case, then the ahadeeth which indicate upon the independence of the virgin girl in marriage have prior place, since they are the more common [famous] ahadeeth. Sheikh Ansari says: "The narrations which indicate upon the independence of a virgin girl are rectified by the fatwa of the majority, and the claims of the ijma' [consensus]." Alongside of this, we can also say that the ahadeeth which deny wilayat are in accordance with the clear meaning of the Qur'an, and those that confirm wilayat are in conflict with the Qur'an, as has been stated by Allamah Najafi. It has been confirmed by the Ahl al-Bayt (as) that when there is contradiction between two hadeeth, we take the one that is more well-known, and if they are equally well-known, than take the one that is in accordance with the Qur'an, and abandon the other.17
Fourth, if we assume that all of these ahadeeth have equal prevalence over each other in every respect, than in that case we must return to the root, which is the absence of wilayat.18 This is the case if argue that the two conflicting evidences contradict each other. However, if we say that we can choose between one or the other,19 than we would have to choose the ahadeeth which indicate upon the absence of wilayat.
We may close this issue with the conclusion given by Allamah Najafi. After he has finished disproving the evidences indicating wilayat over a mature girl, he says:
It is not suitable to anybody, who has even the lowest knowledge of the tendencies of jurisprudence and the practices contained with in its statements, to simply come to rest on this issue.20 Rather, it is recomennded that a girl prefer the choice of her father over her own, and that she not go ahead by herself in this regard. Similarly, it is recommended for the person who seeks to marry such a girl to not seek the permission of her father. Furthermore, she should take into consideration the opinion of her mother as well, and it is recommended that she bring this issue to the attention of her brother if her father and mother are no longer present, because the brother holds the same position as them in terms of respect.
1Under the age of nine for girls, under the age of 15 or before the first seminal emission for boys.
2A safih is a person who, though not considered insane to the point of being unable to distinguish between right and wrong, nonetheless is mentally deficient to a point where they cannot make effective, mature, and reasoned decisions about their life, especially in areas of money. The word safih literally means "foolish" or "foolhardy."
3A hadeeth of Imam Ja'far As-Sadiq (as) which establishes the usul al-fiqh principle of istishab, namely that any state which we are certain of remains in affect until we are certain it has ceased to be so.
4Zun, in Islamic formal logic and jurisprudence, is usually used to refer to approximately 80% certainty about an issue. Yaqeen, on the other hand, implies 100% certainty. Wahm is the opposite of zun, implying 20% certainty, and shak implies 50% doubt. Zun, shak, or wahm have no place in Islamic jurisprudence, insofar as Allah (swt) condemns the kuffar "They follow nothing except zun."
6I.e., that the husband she is seeking is also Muslim.
7As all other contracts on her part would be correct.
8It is a principle in usul al-fiqh to always follow the apparent meaning of a text, insofar as this was the practice of the companions of the Ahl al-Bayt (as) and there is no record of this methodology ever being criticized by any of the Ahl al-Bayt (as).
9Because there are specific injunctions regarding such people's lack of right to dispose over their own affairs.
11This hadeeth is found in Sheikh At-Tusi's Tadhib (vol 7, p. 380), narrated from Muhammad ibn Ali ibn Mahbub, from Al-'Abbas (most likely 'Abbas ibn Ma'ruf), from Sadaan ibn Muslim (author of one of the "four hundred usuls," dictations taken directly in the presence of the Imam). This hadeeth is at least hasan, probably saheeh, and therefore acceptable. Some, such as Hurr 'Amili the author of Wasa'il Ash-Shi'a have said that this hadeeth might have been said in taqiyyah, but this is impossible, since if the Imam (as) were saying something in taqiyyah, his statement would have been said in a way to accord with the rulings of the Sunnis. However, the Sunnis are in consensus that a mature girl needs the permission of her father in marriage. The probability of taqiyyah falls on those ahadeeth which indicate that a girl needs such permission, as will be discussed by Sheikh Magniyah below.
12The actual hadeeth, narrated by Abu Sa'eed from Al-Halby, reads as this: �I asked him about mut�a with a virgin girl, if her parents are present, without the permission of her father. To which he said �There is no problem with it, so long as it does not violating the sanctity of what is there.� This hadeeth is said to be weak by the editor of the current edition of tadheeb. However, it seems clear from other ahadeeth of a similar nature that the narrator of this hadeeth is Abu Sa�eed Al-Qamat, a name shared by two people, both of whom are reliable. It is most likely Khalid ibn Saeed Al-Qamat in this narration, but this confusion doesn�t matter, since either one of these Abu Sa�eed�s is reliable, making the hadeeth reliable. Both of them have written works that could be quoted from after their deaths as well. The violation of sanctity in this case clearly refers to sexual relations. It is probably, as well, that the word which means �necessitate� (yaqtadi) in the hadeeth has been misprint and actually meant to say yaftad, which means to deflower, since this makes more sense in the context of the hadeeth, and this misspelling has also occurred in a hadeeth from Al-Kafi that is cited in Wasa�il. In any case, another hadeeth, which is saheeh, indicates upon a similar meaning: Concerning a man who did mut�a with a virgin girl, Imam As-Sadiq (as) said: �This is disliked (makruh), insofar as it is a stain upon her family.� It seems clear that the import of this hadeeth refers to doing mut�a without the girl�s father�s permission, not mut�a completely, since if the family had given permission there wouldn�t be any problem, either because the stain would not be there, or because the family decided it didn�t matter to them. There are several other ahadeeth which say the same thing, so it seems that to perform temporary marriage with a virgin girl without the permission of her parents is makruh, not haram. Sheikh As-Saduq (as) has considered this hadeeth to indicate upon the makruh. It also would seem to apply to temporary marriage with sexual relations, meaning that a temporary marriage, without sexual relations, with a virgin girl is not a problem. In al-Kafi, we find a similar hadeeth which reads: �I heard Abu Abdillah (Imam As-Sadiq (as)) say: �There is no harm in muta with a virgin girl so long as it does not necessitate a blemish upon her family.� Similarly, we read: �Imam As-Sadiq (as) said, about a man marrying a virgin girl in mut�a, �There is no problem with it so long as you do not deflower her.�
These ahadeeth speak specifically about mut�a for the most part, but there are others more general and explicit about the permissibility of marriage without a guardian. The following hadeeth is narrated by a number of different lines, some of them saheeh, and could be classified as mashur (famous). It reads similar to the other hadeeth of Imam al-Baqir (as) cited in a following footnote: �A woman who is in command of her affairs and is not a safeeh has no guardian (maula) over, and for her to marry without a wali is permissible.�
Furthermore, we have a saheeh narration about a non-virgin girl which reads: �Imam Ja�far (as) said about a non-virgin girl marrying for herself, saying: �If she is in charge of her affairs, than she may decide her affairs as she wishes if [the person she seeks] is suitable, after which she has married somebody before her.� This hadeeth could be read to say that the key condition is that the woman is in charge of her affairs, meaning that if she had been married before but was not in command of her life, than she would require a wali. The key issue, then, seems to be that the woman is baligah rashidah. The argument could be made that this hadeeth acts to explain other ahadeeth which give a general ruling about the permissibility of marriage without a wali (such as the previous hadeeth of Imam al-Baqir (as)), by limiting the meaning of those general hadeeth to a non-virgin (thayb) woman who has been married before, as explained in this narration of Imam as-Sadiq (as). This argument would have strength were it not for the fact that there are numerous, specific, reliable ahadeeth which say that a virgin girl who is not a safeeh may marry. See footnote 19.
13Except that which is present in the Qur'an and ahadeeth.
14Meaning, says Sheikh Magniyah, that she is not a safeeh.
15This hadeeth is hasan. It also supports the Sheikh's earlier argument that marriage is a contract like any other, and if the girl is mature and not a safeeh and her contracts are saheeh, than her marriages (like any other contract) are saheeh as well. It is also in line with the argument that wilayat is only given over people who have some sort of deficiency, not over normal, mature people.
16This position of the Sheikh is further supported by the ahadeeth, discussed above, which seem to be explicit that a sexual mut'a without the wali's permission is makruh, such as the statement: "This is disliked, insofar as it is a stain upon her family." Another possible reconciliation between these narratives, which is offered by Sheikh At-Tusi's in parts of his Tadhib, is that the ahadeeth which confirm wilayat were referring to marriage with an underage girl. The hadeeth of Imam al-Baqir (as) would seem to confirm this, since There is another hadeeth which specifically states this: Muhammad ibn Muslim says: "I asked Imam as-Sadiq (as) about a man doing mut'a with a young girl [meaning virgin in this case], to which he said: 'This fine, unless she is a young, immature girl.' I said: 'May God sanctify you! What is the age which a girl must reach to not be immature?' He said '10 years of age.'" This hadeeth would, again, seem to refer to marriage without the father's permission, since a mut'a of a girl under the age of 10 (without sexual relations) is known to be saheeh if it is with the father's permission. The only problem with this hadeeth is that it is majhulah, meaning that one of the narrators is unknown (though the rest are reliable), but in the light of this discussion its meaning can probably be accepted, since it explains the contradictions between the narrations, and conforms with both, and this is an appropriate remedy (ilaj) to its weakness in the chain of narration.
17This is in accordance with several well-known ahadeeth, which can be found in their own section in usul al-kafi, about what to do when two conflicting narrations come. These ahadeeth also provide another argument in favour of accepting the ahadeeth that deny wilayat over a mature girl. It is narrated that Imam Ja'far (as) has said that when two ahadeeth conflict with each other, take the one that conflicts with the rulings of the Sunnis, and reject the one that concords with them. This is because, as discussed above, that the Imams (as) have said hadeeth that concords with the Sunnis would have been uttered in a state of taqiyyah. In the case under discussion, we see that the Sunnis have ijma' that the father has wilayat over a mature, virgin girl, and that it is not permissible for her to marry without his permission. As such, the ahadeeth that indicate upon a father's wilayat over his mature, virgin daughter would concord with the Sunni rulings, and would be rejected in favour of the ahadeeth which deny such wilayat, as they conflict with the Sunnis
18This is a basic usul al-fiqh principle, namely that when two evidences conflict (such as two hadeeth), and there is no way to reconcile the two, and there is no way to abandon one in favour of the other, then both are to be discarded, and one returns to the asl (root), namely that which we would have certainty about if neither of these two evidences existed. In this case, the asl is the absence of wilayat, since there is no wilayat of one person over anybody else until it is confirmed such wilayat exists.
19In the ways outlined above, such as conformity to the Qur'an, higher frequency of narration, etc.
20I.e., to not pay any attention to precaution.