"For the father and his guardian in marriage marry them off without their permission"
Machine translationRead the Arabic original
The Shaykh : The author said "For the father and his guardian in marriage marry them off without their permission". The adult insane person, the madman, the minor, and the virgin are four categories. The father and his guardian in marriage marry them off without their permission. The father is well known. What about the grandfather? No, the grandfather does not force the marriage of his son's daughters, even those who are subject to forced marriage; he does not force them. Good. Does the brother force? No, he does not force his sister, even if she is a virgin.
The questioner : ... .
The Shaykh : If we say that the grandfather, speaking according to the school of thought, we are speaking according to the school of thought, good, he also does not force. And his saying "and his guardian in marriage" means the one to whom he bequeathed the authority to marry off his daughters after him. Is this a reality or not?
The questioner : It is a reality.
The Shaykh : It is a reality. Some people say, "I bequeathed to so-and-so the authority to conclude the marriage contract for my daughters," and then he dies. Who concludes the marriage for the daughters? The guardian. Good. The daughters have full brothers who are trustworthy in religion and socially reliable. One of them wants to marry off his sister, so the guardian says, "Stop, I am the one who marries them off." Who marries them off? The guardian. We prevent the caring, pious, and good brother from marrying off his sisters to a stranger, but they explain this issue by saying that the one to whom the bequest is made, who is the guardian, takes the place of the bequeather. Just as the bequeather forces, so his guardian forces. We understand from this statement that the authority of marriage is obtained through bequests. Be careful. The authority of marriage is obtained by what? By bequests. This means it is permissible for the father to bequeath to someone after him, to a stranger or a non-stranger, saying, "Marry off my daughters." They explained this by saying that the father has compassion and far-sightedness regarding the daughters, so he may see that the guardians are not qualified or trustworthy in his view, so he bequeaths to another person. For this reason, we accepted it. And some scholars said that the authority of marriage is not obtained through guardianship. Based on that, we say that if the bequeather dies, the guardianship is void. In fact, the guardianship was not established from the beginning. This is the correct opinion, because the authority of marriage is a legal authority derived from whom? From the Shari'ah. Good. Does the father's agent take his place?
The questioner : Yes.
The Shaykh : Yes, he takes his place. The difference between the agent and the guardian is that the agent acts by agency during the life of the principal, and the guardian acts by guardianship after his death and departure from this world. So there is no harm in appointing an agent to conclude the marriage contract for his daughter, but not to bequeath to someone to conclude the marriage contract for his daughter. This is the correct opinion. Good.
And his saying "For the father and his guardian in marriage", is there a guardian in matters other than marriage?
The questioner : Yes.
The Shaykh : Yes, there is a guardian over wealth. For example, he says, "I have endowed a fifth of my wealth for spending on mosques, and the guardian is so-and-so." Is this possible or not? Good. He has young children and says, "My guardian over them is so-and-so." Is this valid or not? Good. Is the guardian over wealth or over looking after the young children a guardian in the marriage contract?
The questioner : ... .
Another questioner: He is.
The Shaykh : No, and for this reason they said "his guardian in marriage." So if he has a guardian over wealth or over the young children, he is not a guardian in marriage. So if a man was bequeathed by his father over his young children, meaning over their upbringing, their support, and what concerns their interests, and then one of the daughters grew up and wanted to get married, who takes charge of her contract? The guardian or the legal guardian?
The questioner : ... .
The Shaykh : The legal guardian. So if the guardian says, "I am the guardian over the young children," we say, yes, you are the guardian over their upbringing, support, and spending on them, but you are not a guardian in the marriage contract. The marriage contract must be explicitly stated, so it is said, "I bequeathed to him the marriage contract for my daughters." However, we said that the stronger opinion is that there is no guardianship in marriage. Marriage is a legal authority established by the Shari'ah. Yes? Is the time over? No, Adel?
The questioner : ... .
The Shaykh : If we say that the grandfather, speaking according to the school of thought, we are speaking according to the school of thought, good, he also does not force. And his saying "and his guardian in marriage" means the one to whom he bequeathed the authority to marry off his daughters after him. Is this a reality or not?
The questioner : It is a reality.
The Shaykh : It is a reality. Some people say, "I bequeathed to so-and-so the authority to conclude the marriage contract for my daughters," and then he dies. Who concludes the marriage for the daughters? The guardian. Good. The daughters have full brothers who are trustworthy in religion and socially reliable. One of them wants to marry off his sister, so the guardian says, "Stop, I am the one who marries them off." Who marries them off? The guardian. We prevent the caring, pious, and good brother from marrying off his sisters to a stranger, but they explain this issue by saying that the one to whom the bequest is made, who is the guardian, takes the place of the bequeather. Just as the bequeather forces, so his guardian forces. We understand from this statement that the authority of marriage is obtained through bequests. Be careful. The authority of marriage is obtained by what? By bequests. This means it is permissible for the father to bequeath to someone after him, to a stranger or a non-stranger, saying, "Marry off my daughters." They explained this by saying that the father has compassion and far-sightedness regarding the daughters, so he may see that the guardians are not qualified or trustworthy in his view, so he bequeaths to another person. For this reason, we accepted it. And some scholars said that the authority of marriage is not obtained through guardianship. Based on that, we say that if the bequeather dies, the guardianship is void. In fact, the guardianship was not established from the beginning. This is the correct opinion, because the authority of marriage is a legal authority derived from whom? From the Shari'ah. Good. Does the father's agent take his place?
The questioner : Yes.
The Shaykh : Yes, he takes his place. The difference between the agent and the guardian is that the agent acts by agency during the life of the principal, and the guardian acts by guardianship after his death and departure from this world. So there is no harm in appointing an agent to conclude the marriage contract for his daughter, but not to bequeath to someone to conclude the marriage contract for his daughter. This is the correct opinion. Good.
And his saying "For the father and his guardian in marriage", is there a guardian in matters other than marriage?
The questioner : Yes.
The Shaykh : Yes, there is a guardian over wealth. For example, he says, "I have endowed a fifth of my wealth for spending on mosques, and the guardian is so-and-so." Is this possible or not? Good. He has young children and says, "My guardian over them is so-and-so." Is this valid or not? Good. Is the guardian over wealth or over looking after the young children a guardian in the marriage contract?
The questioner : ... .
Another questioner: He is.
The Shaykh : No, and for this reason they said "his guardian in marriage." So if he has a guardian over wealth or over the young children, he is not a guardian in marriage. So if a man was bequeathed by his father over his young children, meaning over their upbringing, their support, and what concerns their interests, and then one of the daughters grew up and wanted to get married, who takes charge of her contract? The guardian or the legal guardian?
The questioner : ... .
The Shaykh : The legal guardian. So if the guardian says, "I am the guardian over the young children," we say, yes, you are the guardian over their upbringing, support, and spending on them, but you are not a guardian in the marriage contract. The marriage contract must be explicitly stated, so it is said, "I bequeathed to him the marriage contract for my daughters." However, we said that the stronger opinion is that there is no guardianship in marriage. Marriage is a legal authority established by the Shari'ah. Yes? Is the time over? No, Adel?