FIQH MUQARAN (IMU 601)

IC2104C (GROUP 1)

ASSESSMENT 1 : ARTICLE WRITING

TITLE OF ASSIGNMENT :

MUNAKAHAT : MARRIAGE WITHOUT CONSENT OF WALI

PREPARED BY :

NO STUDENT NAME STUDENT ID

1 IMAN AQILAH BINTI ROSHATTA DHARUL ISLAM 2022616546

2 NUR ARFAH SOFIYAH BINTI MUSTAFA KAMAL 2022455644

3 NOUR HASEENA BINTI RAZAK 2022467838

4 NOR SYATIRA BINTI MOHTAR 2022841862

5 EIMANINA ASYURA 2022882534

PREPARED FOR :

NASRUN BIN MOHAMAD GHAZALI @

 STUDENT DECLARATION

This writing paper is submitted to meet the requirements for Semester Evaluation for Course Code
IMU601 (Fiqh Muqaran), specifically for students from the Muamalat Bachelor's Degree, Faculty
of Contemporary Islamic Studies Academy, Semester 4, Universiti Teknologi MARA Branch of
UiTM Shah Alam.

“We hereby certify that at all times all submitted assignments are my own work, not copying and
plagiarizing from any source, or attempting to copy any party without proper citation. We are aware
that any student who violates the certificate may be brought to the Faculty's Disciplinary
Committee.”

STUDENTS NAMES AND ID NUMBER :

IMAN AQILAH BINTI ROSHATTA DHARUL ISLAM

2022616546

NUR ARFAH SOFIYAH BINTI MUSTAFA KAMAL

2022455644

NOUR HASEENA BINTI RAZAK

2022467838

NOR SYATIRA BINTI MOHTAR

2022841862

EIMANINA ASYURA
2022882534

2
 TABLE OF CONTENTS

NO CONTENTS PAGES

i STUDENT DECLARATION 2

1.0 INTRODUCTION 4-5

1.1 Conditions of Marriage

2.0 UNDERSTANDING WALI 6-8

2.1 Types of Wali

3.0 JURISTIC VIEWS OF MARRIAGE WITHOUT CONSENT OF WALI 8-11

3.1 Shafie Schools of Thought
3.2 Maliki Schools of Thought
3.3 Hanbali Schools of Thought
3.4 Hanafi Schools of Thought

4.0 JUSTIFICATION ANALYSIS OF THE JURISTIC VIEWS 12-16

4.1 Interpretation in the meaning of Quran and Hadith

5.0 CONCLUSION 17-18

6.0 REFERENCES 19-21

3
1.0 INTRODUCTION

Marriage in Arabic is ‘nikah’ which refers to ‘aqd’. However, this is not a typical contract
for everyday transactions. The Qur’an employs the term 'mithaqun ghalitun' to refer to marriage
contracts. The term 'mithaqun ghalitun' refers to a solid covenant or agreement. (Marriage:
Purpose and Obligation – Ashton Central Mosque, n.d.). Allah has mentioned in the Qur’an;

"…and they have taken a strong pledge (‘mithaqun ghalitun’) from you?"

In sociological terms, marriage is a process of exchange of rights and obligations and of

appreciation and loss between a couple. Since marriage represents the process of integration of
two individuals with different social and cultural backgrounds, as well as desires and needs, this
process in marriage must always be negotiated and agreed upon jointly. Sexual desire can only
be satisfied through a genuine marriage. Marriage legalises sexual intercourse, which is natural
to humans, fitrah. Nonetheless, it isn't the only goal. Marriage provides a secure and pleasant
environment for couples. Islam respects human honour and dignity. Marriage between a man and
a woman requires mutual agreement from both parties, attestation by witnesses, and shared
ownership. Establishing a suitable and safe connection protects both the lady and her children
from harm. Islam prohibits releasing sexual desires except via marriage. Allah did not want man
to be equated with other animals, leading to a chaotic and unregulated connection with women.

َ ‫َو ِمن ُكلِّ َش ْى ٍء َخلَ ْقنَا َز ْو َجي ِْن لَ َعلَّ ُك ْم تَ َذ َّكر‬

‫ُون‬
“And We created pairs of all things so perhaps you would be mindful.” (Surah Ad-Dhariyat ;49)

Our Blessed Prophet Nabi Muhammad SAW described marriage as 'half the religion',
emphasising its significance. "Whoever has married has completed half of his religion; therefore,
let him fear Allah in the remaining half!". Technically marriage by Ibn Uthaimin, offers one of
the most detailed definitions. He described marriage as, "It is a mutual contract between a man
and a woman whose goal is for each to enjoy the other, become a pious family and a sound
society.". Meanwhile , according to Sahih Muslim, marriage is defined as, "a relation between a
man and a woman which is recognised by custom or law and involves certain rights and duties,
both in the case of the parties entering the Union, and in case of the children born of it”.

4
1.1 Conditions of Marriage

The conditions in arabic term is ‘syarat’. Conditions divided into two categories. First,
the condition of the Qur'an; that is the condition prescribed by the law of Shara'. The other name
of the condition is called as rukun. Rukun is something that depends on it to validate something
else and something that is part of something else. For instance, if there is no takbiratul ihram in
ibadah prayer, then it is not perfect and the ibadah prayer is not acceptable. then it can be
explained, there will be a worship of prayer and its legal with takbiratul ihram. (Summary of
FEQH - Section 2: Conditions of Marriage Contract, n.d.)

According to the mazhab of the imam Shafie, conditions of marriage there are five
conditions which are husband, wife, wali, two witnesses and sighah. Syafiiyyah classifies two
witnesses into sections of terms of marriage. They reasoned because the witness was outside the
essence of the akad marriage. Wisdom designated two witnesses as one reconciliation of its own,
while husband and wife as one reconciliation for each. The conditions of two witnesses are the
same, whereas the conditions of husband and wife are different. (Mubarak, 2022)

According to them, the terms of marriage are partly related with sighah, some with wali,
some with husband and wife and some relate to witnesses. From the provisions of the harmony
above, it is not a dowry. Thus, dowry is not a pillar of marriage according to them. For the title to
be discussed which is to marry without the permission of the guardian. According to the opinion
of Jumhur, Wali is included in the rukun, but there is a sect that holds other opinions which does
not require a guardian to marry. This exception sect is the madhhab of Imam Hanafiyah.
Marriage with wali according to imam hanafiyah is not a valid condition of marriage. Abu
Hanifah, Zufar, Al-Sya’bi and Al-Zuhri, they argue that when a woman commits akad nikah for
her without a wali is permissible. (Mubarak, 2022)

5
2.0 UNDERSTANDING WALI

Wali is one of the conditions that has to be in a legitimate marriage. Not only that but in
Islam, a "Wali" (Arabic: ‫ )ولي‬is an important term that means "protector," "guardian," or "friend
of God." It often refers to a saint or a very religious person who is considered very close to God
and is believed to have special spiritual insights and blessings. Also, these individuals are
respected for their deep faith and good deeds, and many people look up to them for spiritual
guidance. Plus, the places where these saints are buried often become sites of pilgrimage, where
people go to seek blessings and feel inspired by their lives.

Moreover, the term "Wali" also has a significant role in Islamic family law. It refers to a
legal guardian, especially in the context of marriage. In this case, a Wali is responsible for giving
the bride away, ensuring that the marriage is in her best interest. Usually, the bride's father or
another male relative acts as the Wali, but if they are not available, an appointed guardian can
take on this role. This shows how the concept of Wali is important both for individual spirituality
and for protecting and guiding family members. (Mohd Azam Hussain & Alias Azhar, 2015)

2.1 Types of Wali

2.1.1 Wali Mujbir

A Wali Mujbir is regarded as the perfect wali because he has full power to endorse a
marriage on behalf of everyone under his care. Although a father may marry off his virgin
daughter without her consent, it is sunat which is favourable for the father to request her consent.
The father cannot act freely using his ijbar authority which is the authority to be a wali.
Furthermore, he must make sure that his actions are just and fair for the benefit of his daughter.
That is why Islam has enforced three conditions which allow for the ijbar authority of the father
to be enforced upon his daughter. (JKS Pulan Pinang, n.d.)

First of the conditions is there should be no apparent dispute between the father and the
daughter. This means that there should be no evident disagreement or conflict between the father

6
and his daughter regarding the marriage decision, ensuring that the arrangement is made in a
harmonious and mutually accepted manner, prioritizing agreement and understanding between
them. This condition aims to foster a supportive environment where both parties are aligned in
their consent and understanding of the marriage proceedings. (Natirah Azira, 2020)

Secondly, the suitability of the groom. This refers to the requirement that the prospective
groom which is the future husband should be compatible with the daughter in terms of his
character, values, and social standing, ensuring a relationship built on mutual understanding and
care. This condition emphasizes the importance of finding a partner who shares similar beliefs
and societal status, aiming to establish a stable and supportive marital union based on shared
values and harmonious companionship. (Natirah Azira, 2020)

The last condition is the capability of paying the dowry which is mahar. The meaning of
this is that the prospective husband should have the financial means to promptly provide the
dowry, which is a compulsory gift symbolizing his commitment and accountability towards the
bride. Moreover, this condition underscores the groom's responsibility to ensure financial
security and demonstrates his readiness to fulfill marital obligations, thus ensuring a foundation
of mutual respect and stability in the marriage. (Natirah Azira, 2020)

Furthermore, it is a different case for a daughter who is widowed or divorced. According

hadith by the Prophet (peace and blessings be upon him) by Darulqutni which stated “A
widowed woman has more rights unto herself than her guardian and a virgin woman is married
off by his guardian ”. This emphasized that a widowed woman has more say in her marriage
decisions compared to a guardian's control over a virgin woman. Moreover, a widowed or
divorced daughter's wishes should be respected, and she cannot be forced into a marriage without
her clear and undisputed permission. (Kiran Kachhawaha, n.d.)

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 2.1.2 Wali Ikhtiar

Wali ikhtiar which in language means choices or selection refers to a guardian entrusted
with the responsibility of overseeing a woman's marriage when she gives her consent. This role
includes "Wali Akrab" which is closest male relatives and "Aba’ad" that refers to a more distant
male relatives who step in when a "Wali Mujbir", that is usually the father or paternal
grandfather of the women is absent. These guardians can facilitate the marriage of adult women
but do not have the authority to compel any marriage contract. Their role emphasizes ensuring
the woman's willingness and agreement in the marriage process, reflecting Islamic principles of
consent and guardianship in marital matters. (Maahad al-Tahzib wa al-Ta’alim, 2020)

Not only that but wali ikhtiar may only marry off a bride after she has given her consent
and the consent may be given in two ways. Firstly, for virgins women her silent is understood as
consent. This means if she doesn't object or speak up against the proposal made by her wali
which is her guardian, it's considered that she agrees to marry the wali has chosen for her. While
in the case of widowed and divorced women, she must clearly and verbally express her
agreement meaning that simply remaining silent is not considered consent like in the case of
virgins women. Furthermore, this practice is rooted in a teaching of the Prophet Muhammad
(peace be upon him) which he said in hadith “It is sunat for a father to ask permission from a
virgin woman, and her silence is her consent”. This hadith shows that it is recommended that
fathers seek permission from their virgin daughters before arranging their marriage but also says
that a virgin’s silence signs her acceptance of the marriage proposal. Lastly, this guidance
underscores the importance of respecting a woman's voice and choice in marital matters within
Islamic tradition. (Kiran Kachhawaha, n.d.)

8
3.0 JURISTIC VIEW OF MARRIAGE WITHOUT CONSENT WALI

In Islamic jurisprudence, the concept of a "wali" (guardian) is crucial, particularly in the

context of marriage for women. The significance and necessity of a wali's consent vary across
different Islamic schools of thought. Below is a summary of the various legal perspectives on
marriage without the wali's consent:

3.1 Shafie Schools of Thought

In the Shafi'i school of thought, a woman cannot marry without the consent of her wali
(guardian). According to Shafi'i jurisprudence, as outlined in the book "Al-Fiqh Al-Manhaji," the
consent of the wali is a fundamental pillar of marriage. A female adult, whether a widow or a
virgin, should have her marriage proposed by her guardians. Furthermore, the concept that a
father can marry his virgin daughter without her explicit permission is based on certain
precedents. However, Islamic law encourages fathers to consult their daughters before arranging
their marriages. This Hadith highlights the necessity of obtaining a woman's consent, particularly
in the case of a widow or divorcee. Some jurists interpret this requirement as applying primarily
to widows and divorcees, rather than virgins. However, the overall perspective within the Shafi'i
school remains that a woman's marriage without the agreement of her wali is invalid,
underscoring the guardian's critical role in the matrimonial process. (Mehmood, 2021)

3.2 Maliki Schools of Thoughts

Maliki jurists emphasize the critical importance of a wali's (guardian's) consent, particularly
for a woman's first marriage. This requirement is upheld to ensure that the marriage aligns with
Islamic principles and provides the necessary protection for the woman. The Maliki perspective
draws on specific Hadiths to substantiate this view:Maliki jurists refer to a Hadith narrated by
Aisha (R.A) and the Prophet (P.B.U.H) which underscores the necessity of a wali's involvement
in the marriage process. (Mehmood, 2021)

9
 "There is no halal (permissible) marriage except with a guardian, a dowry, and two fair
witnesses."

This Hadith clearly outlines the essential elements for a valid Islamic marriage, emphasizing
that the presence and consent of a wali are indispensable. This ensures that the marriage contract
is entered into with the necessary oversight and adherence to Islamic legal and ethical standards.

3.3 Hanbali Schools of Thoughts

Hanbali jurists unanimously agree that the consent of a wali (guardian) is essential for the
validity of a marriage. This requirement is seen as a necessary condition (shart li sihat al-nikah)
for the completeness of the marriage contract, rather than as a fundamental pillar (rukun). Imam
Ahmad bin Hanbal, a prominent figure in the Hanbali school, holds that the wali's consent is
crucial for ensuring that the marriage is conducted properly and in accordance with Islamic
principles. Although not classified as a pillar, the wali's assent is indispensable for the marriage
to be considered legitimate and binding.This perspective underscores the guardian's role in
safeguarding the interests of the woman and ensuring that the marriage is established on a solid
and ethical foundation. (Abas, 2015)

3.4 Hanafi Schools of Thoughts

Hanafi jurists have a distinctive stance regarding the necessity of a wali's (guardian's)
consent in marriage. They maintain that while a wali's approval is generally important, virgin
women possess the autonomy to marry without their wali's consent once they reach adolescence.
Hanafi jurists argue that after reaching adolescence, women have the right to make their own
decisions, including marriage. Consequently, a wali cannot force his virgin daughter into
marriage against her will. (Adil, 2020)

Although Muslim jurists generally prioritize the wali's permission as a cornerstone of

marriage, the Hanafi school holds a minority stance, advocating for greater female autonomy.
This is further exemplified by the Prophet (P.B.U.H) annulling marriages where guardians had

10
contracted marriages for adult women without their consent. For instance, the Prophet (P.B.U.H)
annulled Khansa's marriage contract, which her father Khadim had entered into without her
consent, saying, (Abas, 2015)

"He has no right to give you in marriage. Marry anyone you want."

According to Hanafi jurisprudence, women can marry without their wali's consent if certain
conditions are met, such as both parties must be socially equal in terms of ancestry, piety,
financial status, and profession. The marriage also should involve an appropriate dowry (mahar).
If no mahar is specified, the groom must give mahar-e-mathil to validate the marriage. The
Hanafi school insists that if these conditions are not met, the marriage could be declared null and
void. Additionally, for minors and individuals deemed mentally incapable, a wali's consent is
mandatory, regardless of their sex. If a proposed marriage does not meet the criterion of kufu, the
guardian has the right to object and invalidate the marriage. (Adil, 2020)

3.5 Others Schools of Thoughts

Imam Ibn Hazm contends that neither a virgin nor a non-virgin cannot marry without their
wali's consent. His reasoning is based on the Quranic verse:

"Marry off the singles among you, as well as the righteous of your male and female slaves. If
they are poor, Allah will enrich them out of His bounty. For Allah is All-Bountiful, All-Knowing"
(Quran 24:32).

According to Ibn Hazm, this directive pertains to the guardians rather than the women
themselves. In summary, while the majority of Islamic jurists emphasize the wali's permission as
crucial, Hanafi scholars advocate for the autonomy of women, particularly virgins, to marry
without the guardian's consent, provided certain conditions are met. This stance highlights a
nuanced interpretation within Islamic jurisprudence regarding women's rights and marriage.
(Farooq, 2019)

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4.0 JUSTIFICATION ANALYSIS OF THE JURISTIC VIEWS

4.1 Interpretation in the meaning of Quran and Hadith

According to the aforementioned legal perspectives, the vast majority of jurists concur
that getting married with a wali's approval is necessary and required. A guardianship is a
requirement for a marriage's legitimacy, according to Imams Syafi'i, Malik, and Hanbali. This
means that a marriage is deemed void in the absence of a guardian. Numerous pieces of evidence
back up this assertion. To be exact, according to the Shafie, legitimacy requires having a walī. A
woman cannot, therefore, marry herself off. And her marriage is void if she does. According to
reports, Imām Mālik had the same opinion. The Ḥanbalis perspective differs significantly from
the others', but the conclusion is the same. They also make use of the same evidence. Hanafi
Schools, however, contest the idea that a marriage cannot be legal without the wali's approval.
According to Abu Hanifah, while consent of wali is sunnah and advised, marriages without wali
approval are still deemed lawful and will be recognized regardless of the wali's assent. In fact,
there isn't a single verse in the Qur'an that makes it apparent in a manner comparable to al-nash
that a guardian must be included in a marriage contract. However, the Qur'an contains linguistic
instructions that, while they do not explicitly state that having a guardian is necessary, it may be
inferred from this verse that having a guardian is required. The following are some Quran
passages that mention the existence of a guardian. (Mubarak, 2022). They diverge due to the
various interpretations of verse 25 in Surah An-Nisa which stated below :

“Wed them with the leave of their owners, and give them their dowers, according to what is
reasonable: They should be chaste, not lustful”

The word "ahli" in this passage has several meanings. In the words of Tafseer Abul Ala
Maududi, "ahli" refers to guardianship (al-wilayah) or guardian (wali). The phrase "Wed them
with the permission of their own folk (guardians, Auliya, or masters) and give them their Mahr
according to what is reasonable" is another interpretation of this passage offered by Muhsin
Khan. As a result, most schools agree that in order for a marriage to be considered lawful, a

12
number of requirements must be satisfied, with the approval and presence of the wali being the
most important. The protection of the couple's other rights, such as the wife's and children's
rights to mahr, the husband's right to obedience, and the children's right to custody and lineage
(nasab), depends on the legitimacy of the marriage. In contrast, if there is no wali, the marriage is
null and invalid and has no legal obligations or privileges. (Surah An-Nisa Ayat 25 (4:25 Quran)
With Tafsir - My Islam, 2023). However, based on certain tafseer, the word “ahli” in the verse
means the masters which is the owners of the women slaves that is referred. According to Sahih
international tafseer, it is indicated with their owners' consent, get married and pay them what's
due): This indicates that, should they decline to provide consent, the bondwoman's marriage will
be invalid as she lacks personal authority. The bondman is subject to the same rules, as he is also
prohibited from getting married without his master's consent. Other than that, there is another
verse in Surah Al-Baqarah : 232 that indicates Allāh is commanding the walī not to stop her from
being married again after her waiting time. This verse also have different interpretations between
Shafie School and Hanafi Schools. (Mubarak, 2022)

When you divorce women and they have reached the end of their waiting period, do not ˹let the
guardians˺ prevent them from re-marrying their ex-husbands if they come to an honourable
agreement. This is enjoined on whoever has faith in Allah and the Last Day. This is purer and
more dignifying for you. Allah knows and you do not know.

According to Shafie Schools, this demonstrates that the guardian arranges her marriage.
In addition, Ibn Abbas reportedly stated, according to Ali bin Abu Talhah, "This Ayah was
revealed about the man who divorces his wife once or twice and her `Iddah finishes." Later on,
he considers marrying her again, and she agrees to do the same, but her family forbids her from
doing so. Allah forbade her relatives from stopping her as a result." This is the rationale for the
revelation of the Ayah, according to Masruq, Ibrahim An-Nakha`i, Az-Zuhri, and Ad-Dahhak
(2:232). These claims unmistakably match the Ayah's apparent meaning. It is also indicated in

13
the Ayah (2:232) that a woman is not allowed to give herself up in marriage. It is instead
necessary for her to be given away in marriage to a Wali (guardian) like her father, brother, adult
son, and so on, as Ibn Jarir and At-Tirmidhi have said when they brought up this Ayah. (Surah
Al-Baqarah - 232 - Quran.com, n.d.). Furthermore, it is supported by several Hadith that is stated
below:

َّ َّ‫‏ الَ ُت َزوِّ ُج ْال َمرْ َأةُ ْال َمرْ َأ َة َوالَ ُت َزوِّ ُج ْال َمرْ َأةُ َن ْف َس َها َفِإن‬:‫ َقا َل َقا َل َرسُو ُل هَّللا ِ ﷺ‬،‫َعنْ َأ ِبي ه َُري َْر َة‬
‫الزا ِن َي َة‬
‫ِي‬
َ ‫ه‬
‫الَّتِي ُت َزوِّ ُج َن ْف َس َها‬
On the authority of Abū Hurayrah that the Prophet (upon him be peace) said: “No woman
should arrange the marriage of another woman, and no woman should arrange her own
marriage. The adulteress is the one who arranges her own marriage.”

‫ت ِب َغي ِْر ِإ ْذ ِن َم َوالِي َها َف ِن َكا ُح َها بَاطِ ٌل‬

ْ ‫ َأ ُّي َما امْ َرَأ ٍة َن َك َح‬:‫ت َقا َل َرسُو ُل هَّللا ِ ﷺ‬
ْ ‫ َقا َل‬،‫َعنْ َعاِئ َش َة‬
On the authority of ʿĀʾishah that the Prophet (upon him be peace) said: “Any woman who
marries without the consent of her guardians, her marriage is invalid…”

َ ‫‏ الَ ِن َك‬:‫هللا ﷺ‬
ٍّ‫اح ِإالَّ ِب َولِي‬ َ ‫َعنْ َأ ِبي م‬
ِ ‫ َقا َل َقا َل َرسُو ُل‬،‫ُوسى‬
On the authority of Abū Mūsā that the Prophet (upon him be peace) said: “There is no marriage
except for with a guardian.

These three narrations are the main evidence that is held by the three imams which is
Shafie, Hanbali and Malikis. This was the opinion of most of the Companions. In a particular
case, ʿUmar b. al-Khaṭṭāb chastised the person who arranged the lady's marriage and lashed the
woman herself. On the other hand, Hanafi interpret the verse 232 in Surah Al-Baqarah
differently. This verse provides two different angles of support. First, as was already indicated,
Allah brought up the topic of a lady getting married without telling her guardian. This is based
on the Shafie interpretation above. Secondly, which is held by Hanafi Scholls, Allah forbids the

14
walī in this verse from stopping her from being married to her former spouse. Based on the
following concept, this ban demonstrates that a woman can, in fact, be married on her own, the
principle implies that a potential of an activity happening must precede its prohibition;
otherwise, there would be no purpose in prohibiting it. (Adil, 2020). It is based on the principle
below:

‫النهي يقتضي تصوير المنهي عنه‬

“The prohibition necessitates that the existence of what was prohibited from be possible to
actualize.”

A few objections were made by the Ḥanafīs to the evidence that the other imāms had
presented. Because it was customary for people to rely on their walīs to get them married, Allah
addresses the walī in Quran Surah An-Nur verse 32 rather than the women directly. In general,
ladies wouldn't take on such a duty. This is due to the fact that they would be viewed as
shameless if they ventured out into the groups of men to look for appropriate partners. However,
that does not imply that a woman cannot find a spouse on her own. Instead, she wouldn't usually.
As a result, this verse's instruction is one of preference rather than compulsion. In Surah An-Nur
verse 32, “Get married to the (free) singles among you and your bondmen and bondwomen who
are upright. Allah will use His abundance to enrich them if they are impoverished. Because Allah
is All-Powerful, All-Aware. Along with that, another evidence that Hanafi held in Quran is Surah
Al-Ahzab verse 50 that means “...a believing woman who presents herself to the Prophet
(without dowry) is also permitted to be married.” Allah describes a woman marrying herself off
in this verse; no wali is mentioned. (Adil, 2020)

Moreover, according to Hanafi objections, since Aishah married off her niece Ḥafṣah bint
ʿAbd al-Raḥmān whilst her father was gone on a voyage, the ḥadith of Aishah cannot be used as
evidence. The narrative is weakened (dhoif) when a narrator acts in a way that is inconsistent
with his narration. Furthermore, Imam al-Zuhri, one of the ḥadith's narrators, denied having told
it when it was submitted to him. Consequently, the ḥadith is not cited as proof. Even if it were
proven, reading different versions of the ḥadith would lead one to understand the term "imra’ah"
to mean "bondwoman." Then, in the hadith narration to Abu Musa reference, it does not

15
completely refute the marriage. Instead, it is understood to imply that it was not carried out in the
correct way. The Ḥanafīs say that having a walī is preferable. They simply disagree that it's
essential. (Afifah, 2022)

To these objections, the other schools replied. Ibn ʿUlayyah was the only scholar to have
noted that Zuhri rejected the ḥadīth of Aishah. This demonstrates that the criticism was not
unanimous. Numerous others received it from Zuhrī, despite his rejection of it. An alternative
explanation put forward is that Aishah's story is not contradicted by her conduct. What she
actually did was organize the marriage and recommend a dowry, one of her niece's agnate
cousins performed the marriage contract. Aishah was held accountable for the marriage as she
was the one who arranged it. Regarding Abu Musa ḥadith, it is not possible to claim that it
alludes to nafī al-kamāl, since this would be in contradiction to its apparent meaning (khilaf
al-ẓahir). Wherever there is a denial, it seems to be a rejection of something's actuality. And
that's the denial of legislation in this instance. Moreover, the Hanafi school of thought maintains
that it is acceptable for a woman to marry herself in the book Al Mabsuth. The Prophet SAW
said in his hadith that a widow has greater rights over herself than her guardian. (Afifah, 2022)

The word "widow" in this context refers to any unmarried woman, regardless of whether
she is a widow or still a girl. The aforementioned hadith implies that both widows and girls are
permitted to be married. The aforementioned hadith demonstrates that a woman has the sole
authority to carry out a marriage contract. If this hadith is found to be at odds with other hadiths
presented by a group that forbids marriage without a guardian, then it may be excluded (tarjih)
from the hadiths. due to the fact that he has more narrations and is less likely to be unsure of his
true identity (Muhammad Ibn Abdul al-Wahid AlHammam, 1894). Respectfully, there is much
evidence to back up the beliefs of the four schools. Because of this, nobody has the right to
declare that one viewpoint is true while another is false. The viewpoint of one's own imam
should be adhered to by the muqallid (trans. follower) and Allah is the wisest. (Afifah, 2022)

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5.0 CONCLUSION

The matter of a lady's marriage without the permission of her wali (guardian) has always
attracted long discussions and varying outlooks from the different schools of Islamic law. Indeed,
the wali’s agreement tops the list for most of the early jurists as far as what must be there for the
woman’s marriage to be deemed as correct, whereas Hanafiyyah has what can be termed as an
opposing view since it allows grown-up virgins who may go ahead with their decisions on the
same. Anyway, one of the important rulings of wali's consent is that if the guardian is lacking or
absent or does not consent without good reasons provided, a woman could ask permission from a
judge or wali al-amr to get married. The purpose of this clause is to prevent a woman's marriage
from being unnecessarily obstructed because her guardian is not available or cooperative. Also,
the Maliki, and Hanbali schools appreciate that there is the situation where the wali ab’ad is the
much closer guardian in place of the unavailable closest male one. This flexibility allows for
scenarios where the first wali can’t carry out his duties. Furthermore, in the situation of a widow
or divorcee, most Islamic scholars agree that she has adequate decision-making ability hence she
does not require the approval of her wali unlike the first marriage of a virgin where the
requirement of the wali’s permission applies mainly.

It is essential to make clear that the necessity of wali’s approval applies mainly to virgin
girls’ initial wedlocks. Nonetheless, when it comes to widows or divorcees, the majority of
scholars believe that these women should be allowed to decide themselves who to marry without
any interference from their walis since it is assumed that they are more knowledgeable and able
to choose wisely. In the end, this varying opinion on whether a wali’s permission is mandatory
before a marriage reflects the complex and multifaceted nature of this issue as embedded within
the depth of Islamic jurisprudence. Most opinions concur on the importance of guardianship,
though Hanafi’s standpoint allows women more freedom thus highlighting that this topic can be
interpreted differently. No matter the stance, it is obvious that wali only wants to protect the
interests of women, ensure a respectable marriage is conducted and maintain an Islamic family
structure. The whole matter still generates scholarly debates that borrow heavily from scriptures,
hadith and logical reasoning.

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 The question of marriage without the permission of a guardian, however, remains
unresolved within the perspective of today's Muslim communities stressing increased women’s
rights and self-determination. As Muslim societies try to bridge the gap between traditional
expectations and ever-changing global dynamics, it seems likely that Islamic argumentation
regarding this issue will go on developing, possibly leading to more subtle variations and
corrections. The depth and complexity of Islamic legal tradition is underscored by the variety of
views on the issue; this tradition has dealt with such things for a long time as the individual
rights, social responsibilities and family preservation. It is likely that the scholarly discourse on
the position of the wali in matrimony will be an important part of the Islamic jurisprudence as
Muslim communities keep transforming.

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