Aslam

Praise be to Allah.(1)This advice is addressed to parents:

The

duty of parents is to hasten to arrange the marriages of the women who

are under their guardianship, if someone who is compatible proposes

marriage and the woman agrees to that. Whoever does not do that is going

against the command of the Prophet

(peace and blessings of Allaah be upon him). It was narrated from Abu

Hurayrah that the Messenger of Allaah

(peace and blessings of Allaah be upon him) said: “If there comes a

proposal of marriage from one with whose religious commitment and character

you are pleased, then marry [your female relative under your guardianship]

to him, for if you do not do that, there will be fitnah (temptation,

tribulation) on earth and much corruption.” (Narrated by al-Tirmidhi,

al-Nikaah, 1004; classed as hasan by al-Albaani in Saheeh

Sunan al-Tirmidhi, no. 865).

It

is not permissible to treat them with harshness [cf. al-Nisaa’ 4:19

– interpretation of the meaning] for any reason that has not been prescribed

by Allaah and His Messenger. “Harsh treatment”, as defined by Ibn Qudaamah,

means, “preventing a woman from getting married to someone who is compatible,

if she asks for that and if each of them wants to marry the other.”

(See al-Mughni, part 7, p. 24). Parents and guardians should

hasten to marry the women under their care because that will protect

them from falling into that which Allaah has forbidden, and so that

the guardian himself will not fall into that which Allaah has forbidden

of the sin of treating them harshly. The basic principle is that harsh

treatment on the part of the guardian by not letting her marry someone

compatible is haraam, because it is oppression and harming the woman

by depriving her of her right to marry someone she wants. That is because

Allaah forbade that when He said, addressing guardians:

“…

do not prevent them from marrying their (former) husbands…” [al-Baqarah

2:232 – interpretation of the meaning].

(2)The ruling on this matter may be one of two:

The

first is that if the closest relative or guardian of the woman was treating

her harshly by preventing her from getting married, then it is OK for

a more distant  relative to act as her guardian in marriage, even

if the closer relative is present, because in this case he has no right

to be her guardian.

Al-Mirdaawi said: “The phrase ‘if the

closer relative is preventing her from getting married then the more

distant relative should act as her guardian in marriage’ is the correct

view in the madhhab; most of our companions share this view… Shaykh

Taqiy al-Deen (may Allaah have mercy on him) said: one of the forms

of ‘harsh treatment’ is when no one is proposing marriage to her, because

of the harshness of her guardian.”

(al-Insaaf,

part 5, p. 74)

Shaykh al-Islam Ibn Taymiyah said: If

she likes a man and he is compatible with her, then it is obligatory

for her brother or her (paternal) uncle to act as her guardian in her

marriage to him. If they treat her harshly and prevents her from marrying,

then a more-distantly related guardian may marry her to him.”

(al-Fataawa

al-Kubra, part 3, p. 83)

Ibn Qudaamah said: “If her more-closely related guardian

treats her harshly (by not letting her get married), then the guardianship

passes to one who is more distantly related. This was stated by Ahmad…”

(al-Mughni

by Ibn Qudaamah, part 7, p. 24)

Shaykh Ibn ‘Uthaymeen said: If a father prevents his

daughter from marrying someone who is compatible, then guardianship

passes to a more distant relative, the closest then the closest.”

(Fataawa

Islamiyyah, part 3, p. 149)

The

second is when a more distant relative has arranged the marriage when

the closer relative is present and was not treating her harshly (by

preventing her from getting married).

Al-Mardaawi

said: “If a more distant relative arranged the marriage for no reason,

or a non-relative arranged the marriage, then this is not valid.” (al-Insaaf,

part 8, p. 82).

Al-Bahooti

said: “If a more distant relative arranged the marriage with no reason

why a closer relative could not have arranged it, then the marriage

is not valid… because the more distant relative has no right of guardianship

if a closer relative is present.”

(Kashshaaf

al-Qinaa’, part 5, p. 56)

This issue may be examined further. If

the closer relative approves of this marriage, what is the ruling? And

if the closer relative approves of this marriage, does his approval

make the marriage valid or not?

The

scholars said: If someone arranges the marriage when there is someone

else who is more entitled to guardianship and he is present, and is

not treating her harshly (by preventing her from getting married), then

the marriage is invalid. This issue includes three rulings, the first

of which is that if the more distantly related guardian arranges the

marriage, when the more closely related guardian is present, and she

accepts the proposal of marriage without the permission of the closer

relative, then it is not valid.

This

was the view of al-Shaafa’i.

Maalik

said: It is valid, because this is a guardian, so it is permissible

for him to arrange the marriage with her permission, as is the case

with a closer relative.

The

second ruling is that this marriage is null and void; it was not done

with permission or with proper permission, and it cannot be made valid

with the approval of the closer relative. Marriage in all such cases

is invalid, according to the more sound of the two reports. This was

stated by Ahmad in several places, and this is the view of al-Shaafa’i,

Abu ‘Ubayd and Abu Thawr.

Another

report was narrated from Ahmad, in which he said that it depended on

approval, if approval was given it was permissible, and if approval

were not given, it was invalid.

Inkaah

al-Fudooli.

According

to the terminology of the fuqaha’, the fudooli means one who

interferes in the rights of another without any permission from sharee’ah,

because his interfering is not based on any rights of ownership, trusteeship

or guardianship.

(al-Mawsoo’ah

al-Fiqhiyyah, part 32, p. 171)

The

fuqaha’ differed concerning the ruling on a marriage arranged by a fudooli

without any rights of guardianship or proxy:

The

Hanbalis and al-Shaafa’i in al-Jadeed said that the marriage

arranged by a fudooli is invalid and the approval of the guardian has

no effect (i.e., the marriage contract must be repeated).

The second view is that of Ahmad, according

to one report narrated from him, and of Abu Yoosuf, which is that the

marriage arranged by a fudooli is valid, but it depends on the approval

of the guardian. If he gives approval then it is OK, but if he disapproves,

it is not valid.

(al-Mawsoo’ah

al-Fiqhiyyah, part 32, p. 175)

In

conclusion: some of the scholars have said that the marriage contract

is valid if the guardian approves – as you have seen – and if you want

to have more peace of mind and avoid an area concerning which there

are differences of opinion among the scholars, then do the marriage

contract again. All that is needed is the proposal from your guardian

– your father – and acceptance from the husband, and the witness of

two Muslim men, and repentance for what has happened.

We

ask Allaah to give you strength.