Answer

Question: as salaamu alaykum. In Reliance of the Traveler, guardians are two: those who can compel a virgin to marry and those who cannot. The ones can are the father and the grandfather. Doesn’t this ruling contradict the story of the woman whom her father forced her to marry without her consent, and when she came to Rasullullah (SallAllahu alahie wa sallam) he told her she could annul the marriage or continue in it?

Answer:

Wa alaykum salam wa rahmatuLlahi wa barakatuHu,

A virgin’s father has wilayat al-ijbar i.e. guardianship with the right to marry his daughter without her expressed consent. It is recommended that he seeks his daughter’s consent regarding her marriage; while if he does not, it is still valid. Nonetheless, this is held with conditions:

1) There must be no hostility between father and daughter.

2) There must be compatibility.

3) He must not marry her for anything less than mahr al-mithl.

4) The mahr must be the currency used in that area.

5) The suitor is capable to pay her the mahr i.e. he is not indigent.

6) He is not marrying her to one who would be difficult to live with, like a blind-man.

7) Hajj is not obligatory on her.

The conditions that pertain to validity are: the absence of hostility, presence of compatibility, and the suitor’s ability to pay the mahr. (Mughni al-Muhtaj v. 4, p. 246)

Accordingly, wilayat al-ijbar is not absolute; in fact, it is regulated by specific conditions, as seen above. Moreover, the conditions regulate the father’s action, ensuring that a woman is married according to what is beneficial for her and in her best interests.

In Sunan Abi Dawud (v. 2, p. 897 #2096), there is a hadith related on the authority of Ibn ‘Abbas (Rady Allahu ‘anhu) that a virgin woman came to the Prophet (upon him be peace) and mentioned that her father married her against her will. The Prophet (upon him be peace) gave her a choice in the matter. And in some narrations, it mentions that the Prophet (upon him be peace) separated between them, without mentioning him giving her a choice. (Tarikh Baghdad v. 8, p. 88)

Regarding the hadith, Abu Zur’ah and Abu Hatim identified an ‘illah [defect]. (Fath al-Bari v. 9, p. 196; ‘Ilal al-Hadith #1255)

Additionally, the reason for the woman’s dislike is not clearly stated, perhaps she was married to someone incompatible. Imam Shafi’i has two opinions regarding if a father marries his daughter, without her approval, to someone incompatible: 1) the relied-upon view [qawl azhar] is that the marriage is invalid and 2) another opinion maintains that she may opt to annul it or go on with it. (Mughni al-Muhtaj v. 4, p. 272) Perhaps the second view is supported by Abu Dawud’s version of the hadith.

In conclusion, wilayat al-ijbar does not contradict Abu Dawud’s hadith.

And Allah knows best.

Answered by Yaqub Abdurrahman