Conditions of Marriage
May 4, 2023
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MARRIAGE
FAMILY
From among the beautiful aspects of the intricately precise legal rulings of the Islamic system (sharee’ah), is that it has made for all its contracts, the conditions which regulate them, the validity of them and the assurance of their continuation.
For every contract has its conditions that will be invalid without them and this is clear evidence of the perfection of the Islamic legal system, that it has come from one who is (extremely) Wise, (ever) Aware, and Knowledgeable of what is beneficial for the creation. Thus, He has legislated for them that which will help them in their religious and worldly affairs, so that those affairs will have no chaos, being free from constraints. And from among those contracts is the contract of marriage.
The contract of marriage has prerequisites which we will mention now. The most important of them are:
1. Satisfaction or pleasure of the two mates
The marriage of a man to a woman is invalid if he does not desire her or a woman to a man if she does desire him.
Allaah, the Most High has stated:
"O you who believe! You are not permitted to inherit women against their will"10 [Sooratun-Nisaa’, 4:19]
And the Prophet (sallallaahu ‘alayhi wa sallam) said:
“An ayyim11woman should not be married without consulting her and a bikr [virgin] should not be married without asking her permission.” They said, ‘O Messenger of Allaah, how does she give her permission?’ He said, “If she remains silent.”12
Thus, the Prophet (sallallaahu ‘alayhi wa sallam) has prohibited marrying a woman without her consent or desire, whether she is a virgin or thayyib except that the thayyib has to express her consent.
As for the bikr (virgin), her silence is sufficient concerning that because perhaps she may be too shy to make her consent explicit. If she refuses to marry (a certain person), then it is not permissible for anyone to force someone upon her, not even her father. For the Prophet (sallallaahu ‘alayhi wa sallam) said in the hadeeth collected by al-Imaam Muslim: “… And the virgin, [then] her father asks her permission…”13
So in this case, there will be no sin upon the father if he does not give her away in marriage because it was she who refused. Yet, at the same time, he should guard and protect her (best interest).
If two suitors ask for her hand in marriage and she says: “I want this one” and her walee (guardian) says: “Marry the other one” then she will be married to the one whom she desires if he is compatible.14
If there is no compatibility then her walee may prevent her from marrying him and there will be no sin upon him in this case.
2. The Walee (Guardian)
The marriage will not be valid without a walee since the Prophet (sallallaahu ‘alayhi wa sallam) said: “There is no marriage without a walee.”15
Therefore, if a woman gave herself in marriage (without a guardian) then her marriage is void, whether she actually completed the contract herself or commissioned someone else to do it on her behalf.
The walee is one who is at or above the age of puberty (al-baaligh)16 , sane (al-’aaqil), a mature male from her relatives, like the father, paternal grandfather, sons, nephews in a descending order, full brother, brother from the father only, (full) uncle (from both father and mother), uncle of the father and their sons then the next closest then the next closest (Ar-Rasheed min asabaatihaa).
There is no wilaayah (guardianship) for the brothers of the mother, or their sons, or the father of the mother or uncles because they are not included amongst the male relatives (from the father’s side).
So if it is inevitable (for a Muslim female) to have a guardian in order to marry, it is mandatory that the guardian selects those most compatible, (then if they are not available) those next most compatible if there are many suitors (seeking her hand in marriage).
In the event that only one suitor comes forward (seeking her hand in marriage) and he is compatible and she is pleased with him, it is incumbent upon him (the guardian) to give her away in marriage to him.
We would like to pause here for a moment so we can understand the scope of the great responsibility which the guardian is carrying regarding the one whom Allaah has placed him in charge of. Since it is an amaanah (trust) with him and it is necessary for him to protect it and put it in its proper place.
It is impermissible for him to dictate her situation by marrying her to someone who is incompatible for his own personal gain (monetary or otherwise), for this will indeed be a betrayal (of the trust). Allaah, the Most High has said:
"O you who believe! Betray not Allaah and His Messenger, nor betray knowingly your Amaanat [trusts]." [Sooratul-Anfaal, 8:27]
And the Most High’s statement:
"…Indeed Allaah loves not any treacherous ingrate." [Sooratul-Hajj, 22:38]
And the statement of the Prophet (sallallaahu ‘alayhi wa sallam):
“All of you are shepherds and all of you will be responsible for his flock.”17
You will see someone whose daughter’s hand is asked for by a compatible person, but he (the guardian) will reject him and reject another then another.
Hence, whoever does this (repeated rejection) his guardianship is dissolved and someone else from the (other) guardians will take responsibility for her guardianship, (if they are not available) then those next in line then those next in line.
---
10 Translator’s note: al-Imaam Ibnu Katheer (rahimahullaah) said: Before, the practice was that when a man died, his male relatives used to have the right to do whatever they wanted with his wife. If one of them wanted to, he could marry her, give her away in marriage, or preclude her from marriage, for they had more right to her than her own family. Afterward, this aayah [Sooratun-Nisaa’, 4:19] was revealed about this practice. Shaykh Muhammad Naasirud-Deen al-Albaanee (rahimahullaah) was asked the question: “If a girl has reached the proper age for getting married, can her guardian force her to get married?” He replied: It is not permissible for the guardian of a girl’s affairs to force her into getting married. So if the girl has not reached the proper age and has been forced into marriage, she can look for a way to dissolve this marriage after having reached the age of comprehension and maturity. This is because there was a girl who was forced into marriage during the time of the Messenger of Allaah (sallallaahu ‘alayhi wa sallam). After the marriage, she went to the Messenger (sallallaahu ‘alayhi wa sallam) and said to him: ‘O Messenger of Allaah! My father has married me to a man that I dislike, in order to raise his own status.’ So the Messenger (sallallaahu ‘ alayhi wa sallam) nullified her marriage. Due to this, it is not permissible for a girl’s guardian to force her into marriage, regardless if she is a girl who has reached the legitimate age (of marriage) or if she is divorced or if she was married and then lost her husband. Rather, it is only required of him to direct her towards that which is most beneficial for her in her affairs of this world and the hereafter. The Prophet (sallallaahu ‘alayhi wa sallam) said: “There is no marriage except with (the permission of) a guardian and (the presence of) two trustworthy witnesses.” Collected by alBayhaqee from the hadeeth of ‘Imraan and ‘ Aa’ishah; classed as saheeh by al-Albaanee in Saheeh al-Jaami’, no. 7557. And he (sallallaahu ‘alayhi wa sallam) also said: “Do not force your women [to get married], but rather, get their consent.” And he (sallallaahu ‘alayhi wa sallam) said: “Her silence is her consent.” Collected by Muslim, 1421. These are etiquettes and conditions that must be adhered to. However, at times there occurs something that opposes the divine legislation, such as when the father prevents his daughter and delays her marriage because of a materialistic ambition; or because the man proposing marriage to her is poor, and due to this, his status will not be elevated. And so the girl remains without a husband. In this situation, the divine legislation has permitted her to marry herself because the Messenger (sallallaahu ‘alayhi wa sallam) has said: “Any woman who marries herself without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. But if they differ then the authoritative figure [sultaan] is the guardian of one who has no guardian.” Therefore, this girl - whose father has prevented her marriage due to an obvious materialistic reason - may take her case to a legitimate judge. So he will investigate the guardian of the girl’s affairs and interrogate him as to the reason why he is preventing her (from getting married). So if he hears a legitimate reason from him, such as the man intending marriage is an innovator or he doesn’t pray or that he drinks alcohol, then the judge cannot oppose him in this. But if he hears illegitimate reasons from him, then at that point, the judge can assume guardianship of her marriage. (al-Asaalah Magazine, question #45 issue #6)
11 Translator’s note: ‘ayyim’ is sometimes confused with a ‘ thayyib’ . An ayyim is a man or a woman who has married or not married in the past. Whereas a thayyib is a woman who had already married then returned to her parents’ home and returned to her former condition that she had before having a husband. In this narration an ayyim is a woman who is no longer a virgin.
12 Collected by Imaam al-Bukhaaree , “The Book of Marriage,” #5136 and Imaam Muslim “The Book of Marriage,” #1419
13 Collected by Imaam Muslim “The Book of Marriage,” #1421
14 Shaykh Saalih Ibnul-Fawzaan al-Fawzaan has stated: ‘Kafaa’ah’ or compatibility linguistically is “evenness” or “similarity” and is categorized into five aspects: 1) Ad-Deen: Religion 2) Al-Mansib: Lineage 3) Al-Huriyyah: Freedom [non-enslaved] 4) As-Sinaa’ah: Occupation 5) Al-Yasaaru bil Maal: Affluence of wealth in accordance to what is required for her of the dower and maintenance. Thus, the poor man will not be compatible with the well-off woman because his financially constrained condition may cause her harm and may be an encroachment of her maintenance. So if one of the two spouses differs in any one of these five matters then compatibility ceases. However, this will not have any effect on the validity of the marriage. For compatibility is not a condition for the validity of marriage, seeing as the Prophet (sallallaahu ‘alayhi wa sallam) instructed Faatimah Bint Qays to marry Usaamah Ibn Zayd (radiyallaahu ‘anhumaa) so he married her at his command, but compatibility will be a prerequisite for the marriage only. So if a woman was given in marriage to someone incompatible with her and there was some displeasure [for instance] - from the woman or her awliyaa [guardians] - the marriage is annulled, since we find [in the time of the Prophet sallallaahu ‘alayhi wa sallam] a man married his daughter to his brother’s son to elevate his ignoble status. Therefore, he (sallallaahu ‘alayhi wa sallam) gave her a choice [in the matter].
15 Collected by at-Tabaraanee; see also Saheeh al-Jaami’, 7558.
16 Translator’s note: According to the ‘Ulamaa of Ahlus-Sunnah wal-Jamaa’ah, like Shaykh Muhammad Ibnus-Saalih al-’Uthaymeen (rahimahullaah), a person is baaligh (one who has reached the age of puberty) when they have either: a) completed fifteen years of age b) produced hair under the arms or private parts c) seminal emission in a state of sleep or whilst awake d) menses [in the case of females]
17 Collected by Imaam al-Bukhaaree , “The Book of Marriage,” #5188 and Imaam Muslim, “The Book of Government,” #1829
Source: Adopted from The Concise Manual of Marriage by Sh. Al-Uthaymeen
For every contract has its conditions that will be invalid without them and this is clear evidence of the perfection of the Islamic legal system, that it has come from one who is (extremely) Wise, (ever) Aware, and Knowledgeable of what is beneficial for the creation. Thus, He has legislated for them that which will help them in their religious and worldly affairs, so that those affairs will have no chaos, being free from constraints. And from among those contracts is the contract of marriage.
The contract of marriage has prerequisites which we will mention now. The most important of them are:
1. Satisfaction or pleasure of the two mates
The marriage of a man to a woman is invalid if he does not desire her or a woman to a man if she does desire him.
Allaah, the Most High has stated:
"O you who believe! You are not permitted to inherit women against their will"10 [Sooratun-Nisaa’, 4:19]
And the Prophet (sallallaahu ‘alayhi wa sallam) said:
“An ayyim11woman should not be married without consulting her and a bikr [virgin] should not be married without asking her permission.” They said, ‘O Messenger of Allaah, how does she give her permission?’ He said, “If she remains silent.”12
Thus, the Prophet (sallallaahu ‘alayhi wa sallam) has prohibited marrying a woman without her consent or desire, whether she is a virgin or thayyib except that the thayyib has to express her consent.
As for the bikr (virgin), her silence is sufficient concerning that because perhaps she may be too shy to make her consent explicit. If she refuses to marry (a certain person), then it is not permissible for anyone to force someone upon her, not even her father. For the Prophet (sallallaahu ‘alayhi wa sallam) said in the hadeeth collected by al-Imaam Muslim: “… And the virgin, [then] her father asks her permission…”13
So in this case, there will be no sin upon the father if he does not give her away in marriage because it was she who refused. Yet, at the same time, he should guard and protect her (best interest).
If two suitors ask for her hand in marriage and she says: “I want this one” and her walee (guardian) says: “Marry the other one” then she will be married to the one whom she desires if he is compatible.14
If there is no compatibility then her walee may prevent her from marrying him and there will be no sin upon him in this case.
2. The Walee (Guardian)
The marriage will not be valid without a walee since the Prophet (sallallaahu ‘alayhi wa sallam) said: “There is no marriage without a walee.”15
Therefore, if a woman gave herself in marriage (without a guardian) then her marriage is void, whether she actually completed the contract herself or commissioned someone else to do it on her behalf.
The walee is one who is at or above the age of puberty (al-baaligh)16 , sane (al-’aaqil), a mature male from her relatives, like the father, paternal grandfather, sons, nephews in a descending order, full brother, brother from the father only, (full) uncle (from both father and mother), uncle of the father and their sons then the next closest then the next closest (Ar-Rasheed min asabaatihaa).
There is no wilaayah (guardianship) for the brothers of the mother, or their sons, or the father of the mother or uncles because they are not included amongst the male relatives (from the father’s side).
So if it is inevitable (for a Muslim female) to have a guardian in order to marry, it is mandatory that the guardian selects those most compatible, (then if they are not available) those next most compatible if there are many suitors (seeking her hand in marriage).
In the event that only one suitor comes forward (seeking her hand in marriage) and he is compatible and she is pleased with him, it is incumbent upon him (the guardian) to give her away in marriage to him.
We would like to pause here for a moment so we can understand the scope of the great responsibility which the guardian is carrying regarding the one whom Allaah has placed him in charge of. Since it is an amaanah (trust) with him and it is necessary for him to protect it and put it in its proper place.
It is impermissible for him to dictate her situation by marrying her to someone who is incompatible for his own personal gain (monetary or otherwise), for this will indeed be a betrayal (of the trust). Allaah, the Most High has said:
"O you who believe! Betray not Allaah and His Messenger, nor betray knowingly your Amaanat [trusts]." [Sooratul-Anfaal, 8:27]
And the Most High’s statement:
"…Indeed Allaah loves not any treacherous ingrate." [Sooratul-Hajj, 22:38]
And the statement of the Prophet (sallallaahu ‘alayhi wa sallam):
“All of you are shepherds and all of you will be responsible for his flock.”17
You will see someone whose daughter’s hand is asked for by a compatible person, but he (the guardian) will reject him and reject another then another.
Hence, whoever does this (repeated rejection) his guardianship is dissolved and someone else from the (other) guardians will take responsibility for her guardianship, (if they are not available) then those next in line then those next in line.
---
10 Translator’s note: al-Imaam Ibnu Katheer (rahimahullaah) said: Before, the practice was that when a man died, his male relatives used to have the right to do whatever they wanted with his wife. If one of them wanted to, he could marry her, give her away in marriage, or preclude her from marriage, for they had more right to her than her own family. Afterward, this aayah [Sooratun-Nisaa’, 4:19] was revealed about this practice. Shaykh Muhammad Naasirud-Deen al-Albaanee (rahimahullaah) was asked the question: “If a girl has reached the proper age for getting married, can her guardian force her to get married?” He replied: It is not permissible for the guardian of a girl’s affairs to force her into getting married. So if the girl has not reached the proper age and has been forced into marriage, she can look for a way to dissolve this marriage after having reached the age of comprehension and maturity. This is because there was a girl who was forced into marriage during the time of the Messenger of Allaah (sallallaahu ‘alayhi wa sallam). After the marriage, she went to the Messenger (sallallaahu ‘alayhi wa sallam) and said to him: ‘O Messenger of Allaah! My father has married me to a man that I dislike, in order to raise his own status.’ So the Messenger (sallallaahu ‘ alayhi wa sallam) nullified her marriage. Due to this, it is not permissible for a girl’s guardian to force her into marriage, regardless if she is a girl who has reached the legitimate age (of marriage) or if she is divorced or if she was married and then lost her husband. Rather, it is only required of him to direct her towards that which is most beneficial for her in her affairs of this world and the hereafter. The Prophet (sallallaahu ‘alayhi wa sallam) said: “There is no marriage except with (the permission of) a guardian and (the presence of) two trustworthy witnesses.” Collected by alBayhaqee from the hadeeth of ‘Imraan and ‘ Aa’ishah; classed as saheeh by al-Albaanee in Saheeh al-Jaami’, no. 7557. And he (sallallaahu ‘alayhi wa sallam) also said: “Do not force your women [to get married], but rather, get their consent.” And he (sallallaahu ‘alayhi wa sallam) said: “Her silence is her consent.” Collected by Muslim, 1421. These are etiquettes and conditions that must be adhered to. However, at times there occurs something that opposes the divine legislation, such as when the father prevents his daughter and delays her marriage because of a materialistic ambition; or because the man proposing marriage to her is poor, and due to this, his status will not be elevated. And so the girl remains without a husband. In this situation, the divine legislation has permitted her to marry herself because the Messenger (sallallaahu ‘alayhi wa sallam) has said: “Any woman who marries herself without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. But if they differ then the authoritative figure [sultaan] is the guardian of one who has no guardian.” Therefore, this girl - whose father has prevented her marriage due to an obvious materialistic reason - may take her case to a legitimate judge. So he will investigate the guardian of the girl’s affairs and interrogate him as to the reason why he is preventing her (from getting married). So if he hears a legitimate reason from him, such as the man intending marriage is an innovator or he doesn’t pray or that he drinks alcohol, then the judge cannot oppose him in this. But if he hears illegitimate reasons from him, then at that point, the judge can assume guardianship of her marriage. (al-Asaalah Magazine, question #45 issue #6)
11 Translator’s note: ‘ayyim’ is sometimes confused with a ‘ thayyib’ . An ayyim is a man or a woman who has married or not married in the past. Whereas a thayyib is a woman who had already married then returned to her parents’ home and returned to her former condition that she had before having a husband. In this narration an ayyim is a woman who is no longer a virgin.
12 Collected by Imaam al-Bukhaaree , “The Book of Marriage,” #5136 and Imaam Muslim “The Book of Marriage,” #1419
13 Collected by Imaam Muslim “The Book of Marriage,” #1421
14 Shaykh Saalih Ibnul-Fawzaan al-Fawzaan has stated: ‘Kafaa’ah’ or compatibility linguistically is “evenness” or “similarity” and is categorized into five aspects: 1) Ad-Deen: Religion 2) Al-Mansib: Lineage 3) Al-Huriyyah: Freedom [non-enslaved] 4) As-Sinaa’ah: Occupation 5) Al-Yasaaru bil Maal: Affluence of wealth in accordance to what is required for her of the dower and maintenance. Thus, the poor man will not be compatible with the well-off woman because his financially constrained condition may cause her harm and may be an encroachment of her maintenance. So if one of the two spouses differs in any one of these five matters then compatibility ceases. However, this will not have any effect on the validity of the marriage. For compatibility is not a condition for the validity of marriage, seeing as the Prophet (sallallaahu ‘alayhi wa sallam) instructed Faatimah Bint Qays to marry Usaamah Ibn Zayd (radiyallaahu ‘anhumaa) so he married her at his command, but compatibility will be a prerequisite for the marriage only. So if a woman was given in marriage to someone incompatible with her and there was some displeasure [for instance] - from the woman or her awliyaa [guardians] - the marriage is annulled, since we find [in the time of the Prophet sallallaahu ‘alayhi wa sallam] a man married his daughter to his brother’s son to elevate his ignoble status. Therefore, he (sallallaahu ‘alayhi wa sallam) gave her a choice [in the matter].
15 Collected by at-Tabaraanee; see also Saheeh al-Jaami’, 7558.
16 Translator’s note: According to the ‘Ulamaa of Ahlus-Sunnah wal-Jamaa’ah, like Shaykh Muhammad Ibnus-Saalih al-’Uthaymeen (rahimahullaah), a person is baaligh (one who has reached the age of puberty) when they have either: a) completed fifteen years of age b) produced hair under the arms or private parts c) seminal emission in a state of sleep or whilst awake d) menses [in the case of females]
17 Collected by Imaam al-Bukhaaree , “The Book of Marriage,” #5188 and Imaam Muslim, “The Book of Government,” #1829
Source: Adopted from The Concise Manual of Marriage by Sh. Al-Uthaymeen
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