The Guardian and the Consent of the Bride

Status of Women in Islam (4)

The Guardian and the Consent of the Bride

Though the Islamic Laws recognise the consent of a woman as an indispensable element of a valid marriage; they recommend the consent of her guardian be also taken. Muslim jurists are, no doubt, divided in their opinions, as to whether the consent of the bride’s guardian is essential but they all agree in holding that ‘a woman can under no circumstances be married without her own express consent.’ According to the Hanfi Islamic School of Law, the capacity of a woman who is adult and of sound mind, to contract herself in marriage is absolute. The same school explicitly lays down that ‘a woman who is adult and of sound mind may be married by virtue of her own consent, although the contract may not have been made or acceded to by her guardian and this whether she be a virgin, or a ‘Thayyiba’.[1] On the same principle, marriage of an adult woman under compulsion has been held to be invalid. It is related on good authority, that an adult woman who was married by her father to a man against her will, came and spoke about it to the Prophet who declared the marriage void.

It is clear, then, that under the Hanafi School of law, a marriage can be contracted with or without a guardian, provided the girl is adult and has given her consent to the contract.

The Shafie and the Maleki School of law, on the other hand, maintain that a maiden cannot personally consent to marriage. According to them, the Wali’s [the guardian’s] consent, in the case of a maiden, is one of the essential factors of marriage, though not in the case of a thayyiba. The distinction seems to have been derived from the idea that a thayyiba’s judgment is naturally more reliable than a virgin’s and that she is expected to understand better the nature of the marriage contract. In support of their view they refer to the tradition, related by Ayesha, that the Prophet said that the contract of marriage is absolutely void, if a woman enters into such without the consent of her guardian.

The great majority of the girls being quite innocent of the nature of the contract, it is therefore necessary that the guardian of the girl should intervene and protect her from being duped by interested persons, or from the evil consequences likely to flow from the choice of the girl, when injudicious or against her own interest.

4. The Inequality of the Two Sexes with Regard to Divorce

Marriage being regarded as a civil contract and as such not indissoluble, the Islamic law naturally recognises the right in both the parties to dissolve the contract under certain given circumstances. Divorce, then, is a natural consequence to the conception of marriage as a contract, and it is regrettable that it should have furnished European critics a handle for attack. Even Sale, that eminent scholar has fallen into the same error; for he too seems to entertain the view, that the Islamic law permits a man to repudiate his wife “even on the slightest disgust!”[2] Whether the law permits, or favours, repudiation on the slightest disgust, we shall presently see, but as to the other point raised by the same learned critic, namely; the inequality of the two sexes in regard to the right of obtaining a divorce, one has to remember that this inequality is more seeing than real. The theory of marriage, no doubt, points to a subordination of the wife to her husband, because of her comparative inferiority in discretionary powers; but in practice the hands of the husbands are fettered in more ways than one. The theoretical discretion must not be understood as giving a tacit sanction to the excesses of a brutal husband; on the other hand it is intended to guard against the possible dangers of an imperfect judgment. Relations between the members of the opposite sexes which marriage legalises are, however, so subtle and delicate, and require such constant adjustment, involving the fate and well–being of the future generations, that in their regulation the law considers it expedient to allow the voice of one partner, more or less, predominance over that of the other.[3]

Perhaps it is here worthy of notice that in Europe the two sexes are not placed on an equal footing in respect of the right of the divorce. Lord Helier, P.C., K., C.B., who was President of the Probate Divorce and Admiralty Division of the High Court of Justice, 1892–1905, observes on this point: “Much comment has been made on the different grounds, on which divorce is allowed to a husband and to a wife – it being necessary to prove infidelity in both cases, but a wife being compelled to show either an aggravation of that offence or an addition to it. Opinions probably will always differ whether the two sexes should be placed in equality in this respect, abstract justice being invoked, and the idea of marriage as a mere contract, pointing in one direction, and social considerations in the other. But the reason of the legislature for making the distinction is clear. It is that the wife is entitled to an absolute divorce only if her reconciliation with her husband is neither to be expected nor desired. This was no doubt the view taken by the House of Lords.” [4]