Legal guardianship in marriage

Egypt's Dar Al-Ifta

Legal guardianship in marriage


We reviewed request no. 1617 for the year 2005 which includes the following:

My daughter was married without a guardian. I would like a fatwa on the legitimacy of this marriage, since her husband is not a suitable match and she has not received mahr al-mithl[1]. Is it permissible for me to object to this marriage? 
[1]The amount typically received as marriage payment by similar brides from her relatives resembling her in such characteristics as age, intelligence, beauty, wealth, being virgin or non virgin, and in having the same hometown.  




Al- Wilaya
Al-Wilaya or guardianship in marriage, is a kind of protection instituted by Islamic law to guarantee a woman's interests when she is at the start of an important phase in her life. Islamic law bases the rulings of guardianship on the meanings of consideration, protection and assistance.
Imam Abu Hanifa maintained that it is not obligatory upon an legally responsible adult woman to have a guardian. Based on this, a woman is entitled to conduct her marriage contract whether she has been previously married or is a virgin. According to him, al-wilaya as guardianship is exclusively reserved for prepubescent females while al-wilaya as deputation and not guardianship, is reserved for the legally responsible adult female.
Egyptian law follows the Hanafi opinion concerning marriage and entitles a pubescent woman to conduct her own marriage which is considered valid if she is married to a suitable match and with mahr al-mithl.
Age of puberty
Islamic law regards puberty as the sign of the beginning of maturity of mind. Moreover, it made puberty contingent upon reaching a certain age in the absence of other signs of puberty. There is a scholarly dispute over the age of puberty.
Shafi'is and the Hanbalis
 Shafi'i and Hanbali scholars and Abu Yusuf and Mohammed determined that the age of puberty is fifteen lunar years for both males and females.
Maliki scholars maintained that puberty is reached at the age of 18. Other opinions in the school determined the age of puberty at 15, 17 and 19 respectively.
Abu Hanifa
According to Abu Hanifa males reach puberty at 18 and females at 17.
Egyptian law
Egyptian law has organized litigation procedures in personal affairs cases through issuing law no. 56/1923. According to this law, the minimum age of marriage is 18 years for males and 16 for females. Consequently, the court may not hear cases where the parties have not reached the minimum age at the time of conducting the marriage except with the guardian's permission. It later enacted decree law no. 78/1931 in correspondence to the preceding law. Article no. 5/99 of this law was amended in law no. 88/1951 which based the age of puberty on the Hijri calendar. Finally, law no. 1/2000 based the age of puberty on the Gregorian Calendar.
Hanafi scholars permit the guardian to apply for the dissolution of his pubescent daughter's marriage if she marries someone who is not a suitable match or without receiving mahr al-mithl. However, this applies only if she is not pregnant or had any children [from the marriage].
It is permissible for her guardian to object to his ward's marriage if her husband is a suitable match but has given her a mahr that is significantly and unjustly less in value than mahr al-mithl. The marriage is considered valid if the husband completes the mahr to equal mahr al-mithl. Otherwise, the guardian is to resort to the court to revoke the marriage contract. This is the opinion of Abu Hanifa; Abu Yusuf and Mohammed concurred.
The ruling
Based on the above, it is permissible for the guardian to object to the marriage mentioned in the question on grounds of unsuitability and he is entitled to demand an annulment of the marriage if his claim is proved. Moreover, he is entitled to object because his daughter did not receive mahr al-mithl.
Allah the Almighty knows best   
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