3. THE INTEGRALS OF A MARRIAGE AGREEMENT
THE INTEGRALS OF A MARRIAGE AGREEMENT
Marriage has integrals (which are five in number:
a) the spoken form;
b) the witnesses;
c) the bride’s guardian;
d) the groom;
e) and the bride).
THE SPOKEN FORM
The first integral is the explicitly stated spoken form (comprising a spoken offer by the guardian and its acceptance by the groom, like other, nonmarital transactions, its necessary conditions are the same as those of valid sale (a, b, c, d, e), the form being valid in languages other than Arabic even when one is able to speak Arabic,
The spoken form is not valid if allusive. Nor is it valid without:
a) a statement (from the guardian) that effects it, namely “I marry you” (i.e. to her, the Arabic zawwaja meaning to marry someone to another);
b) and an immediate spoken acceptance (by the groom), namely “I marry her,” or HI accept her marriage.”
(The spoken form, when the other integrals exist, is what is meant by the term marriage contract, not an actual written document, though it is sunnah to write it. Extraneous conditions added to the marriage contract, such as that the husband observe monogamy or the like, are not binding, being meaningless, though they do not invalidate the marriage agreement, which remains effective.)
THE WITNESSES
The second integral is that the marriage has witnesses, it not being valid unless two witnesses are present who are:
a) male (since a marriage witnessed by a man and two women would not be valid (though it would be valid in the Hanafi school));
b) sound of hearing;
c) sound 9f eyesight;
d) familiar with the language of the two contracting parties;
e) Muslims;
f) and upright witnesses, even if their uprightness is merely apparent (since marriages take place among average, common people, and if they were made responsible to know the inward uprightness of witnesses, it would cause delays and difficulties. Apparent uprightness means the person is outwardly known to be upright, even if he is inwardly unknown).
THE BRIDE’S GUARDIAN
The third integral is the (bride’s) guardian (since a woman may not conduct her own marriage. Ibn Majah relates that the Prophet (Allah bless him and give him peace) said,
“Let no woman marry a woman to another or marry herself to another. ”
Daraqutni related this hadith with a chain of transmission meeting the standards of Bukhari and Muslim). The marriage agreement is not valid without a guardian who is:
a) male;
b) legally responsible (mukallaf);
c) Muslim;
d) upright;
e) and of sound judgement.
The following may not be a bride’s guardian:
1. above) a woman;
2. a child or insane person;
3. a non-Muslim;
4. (a corrupt person) (though the opinion of later scholars is that a corrupt person may be a guardian);
5. or (non- (e) someone whose judgement is unsound because of old age or weakmindedness (whether innate or acquired. Old age includes someone with severe pain or illnesses which distract him from realizing what is most advantageous for his charge and her interests, since such a person would be incapable of learning how suitors really are and whether they are an appropriate match for the bride). It is of no consequence if the guardian is blind.
A non-Muslim responsible for a non-Muslim bride may be her guardian (provided he does not violate the rules of his own religion), though a Muslim may not.
(If the bride has no Muslim guardian and there is no Islamic magistrate to act as one, she may authorize a male Muslim who has the qualifications of an Islamic judge or if there is none, then a male Muslim who is legally upright to act as her guardian in marrying her to the groom (Mughni al-rnuhtaj ita rna’rifa rna’ani alfaz al-Minhaj (y73), 3.147).)
THE ORDER OF LAWFUL GUARDIANSHIP AMONG THE BRIDE’S RELATIVES
The male relatives of a free woman are the Ones who may marry her to another, and the order (0: as to who has the right to be her guardian) is her:
1. father;
2. father’s father (0: and on up);
3. brother;
4. brother’s son;
5. father’s brother;
6. her father’s brother’s son (and so on, in the same order as the universal heirs in estate division);
7. and then the Islamic magistrate (A: i.e. the judge (qadi)).
None of the above may marry her to someone when a family member higher on the list exists. If there are two of equal standing (two brothers, for example) and one is related to her through two parents while the other is related to her through the father alone, then the one related to her through both parents is the guardian. If both are equal in this respect, precedence is given to the oldest, most learned in Sacred Law, and most god fearing. But if the other (less deserving of two would-be guardians who are of equal affiliation to her) marries her to the groom, the marriage is valid. If both insist on being the one, they draw lots to see who will do it, though if the loser marries her to the groom, the marriage is also legally valid,
If a guardian does not have the right to be a guardian because of the existence of one of the above-mentioned preventives, the guardianship devolves to the next family member in the order of lawful guardians.
THE BRIDE’S RIGHT TO MARRY A SUITABLE MATCH OF HER CHOICE
Whenever a free woman asks to marry a suitor who is a suitable match (by telling her guardian, “Marry me to him”), the guardian must marry her to him (whether she is a virgin or nonvirgin, and whether prepubescent or not). The Islamic magistrate (i.e. judge) marries her to such a groom if the guardian:
1. in the presence of the magistrate refuses to marry her to the groom;
2. is on a journey farther than 81 km. l5O mi. from home;
3. or is in a state of pilgrim sanctity (ihram) (for hajj, ‘umra, or both).
In such cases, the guardianship does not devolve to the next most eligible in the order of lawful guardians. If (non-(2) above) the guardian is on a journey of less than 81 km./SO mi. from home, the bride may not be married to someone without the guardian’s leave.
COMMISSIONING ANOTHER TO AFFECT THE MARRIAGE AGREEMENT
The guardian may commission another to marry his charge to someone, though it is not permissible to commission someone who himself lacks the requisite conditions (a, b, c, d, e) to be a guardian.
The groom too may commission someone to accept the marriage agreement on his behalf, provided the person commissioned is someone who would be legally entitled to accept such a marriage for himself. (A child, for example, may not accept a marriage for himself, let alone someone else, nor maya woman be commissioned for this, nor someone in a state of pilgrim sanctity (ihram).)
Neither the guardian of the bride nor his agent may state the marriage offer (a) for the guardian’s own marriage (to her). If her guardian wants to marry her, as when, for example, he is the son of her father’s brother, then he lets a different son of the father’s brother stand in as guardian. If there is no one in his own degree (of relation to her), then the Islamic judge stands in as guardian.
No one may state both the proposal and its acceptance (a, b) for one marriage, except the bride’s grandfather when marrying his son’s daughter to his (other) son’s son.
GUARDIANS WHO MAY MARRY A VIRGIN TO A MAN WITHOUT HER CONSENT
Guardians are of two types, those who may compel their female charges to marry someone, and those who may not.
1. The only guardians who may compel their charge to marry are a virgin bride’s father or father’s father, compel meaning to marry her to a suitable match without her consent.
2. Those who may not compel her are not entitled to marry her to someone unless she accepts and gives her permission.
Whenever the bride is a virgin, the father or father’s father may marry her to someone without her permission, though it is recommended to ask her permission if she has reached puberty. A virgin’s silence is considered as permission.
As for the nonvirgin of sound mind, no one may marry her to another after she has reached puberty without her express permission, no matter whether the guardian is the father, father’s father, or someone else.
No guardian may marry a woman to someone who is not a suitable match without her acceptance and the acceptance of all who can be guardians. If the Islamic magistrate is her guardian, he may not under any circumstances marry her to someone who is not a suitable match for her.
If the bride selects a suitor who is not a suitable match for her, the guardian is not obliged to marry her to him. If she selects a suitable match but her guardian chooses a different suitor who is also a suitable match, then the man chosen by the guardian takes precedence if the guardian is one who may lawfully compel her to marry, while the one she selects takes precedence when the guardian may not lawfully compel her to marry.
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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