Chapter: The Third: The Guardian and His Conditions: Legal Capacity, Males, Freedom, and Prudence in the Contract
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The Shaykh : Then the author said "Chapter: The Third: The Guardian" The third of what? Of the conditions. The third of the conditions of marriage is the guardian, based on the saying of the Prophet (peace and blessings be upon him) Sunan Ibn Majah 1880Sahih (Darussalam) And because this is apparent in the Qur'an, as Allah the Exalted said "Marry them," meaning give them in marriage, and as Allah Blessed and Exalted is He said [Al-Baqarah 2:232] And if the guardian had no effect in the marriage contract, there would be no benefit in the prohibition of oppressing him, because we would say, whether he oppresses or not, she gets married. This indicates that, as is apparent in the Qur'an, the guardian is necessary. Thus, the requirement of a guardian in marriage is established by the Qur'an and by the Sunnah in the saying of the Prophet (peace and blessings be upon him) Sunan Ibn Majah 1880Sahih (Darussalam) It is also the requirement of correct reasoning that a woman does not get married except through her guardian. That is because a woman is weak in thinking and short-sighted. A person may come to her and deceive her with his appearance, or with his tongue, or with his wealth, or something similar, and he is not a suitable match. Yes, a man may come to propose to her, and he is handsome in appearance, clean in clothing, tall in stature, and one of the best of men, and he says to her, deceiving her with what he sees will deceive her. Then she agrees, and he says, "Fine, we will bring the authorized person to perform the marriage contract. Marry yourself." This is not possible. Or a man may come to her with a bundle of gold in his hand, having burdened his hand with it, and say, "Look at what I have." Yes, he deceives her into thinking he is wealthy, but the bundle he borrowed from his neighbor, or he does not have a single dinar from it. He deceives her. This is also possible. Likewise, he may deceive her with his eloquence and gentleness, as has been found in the present day. Today, some poor women are deceived into agreeing to a man who spoke to them on the telephone or otherwise, and he showed himself to be one of the best of people in character. Then when she married him, she found him to be the worst of people in character. She was trapped. Therefore, the guardian is necessary. The three proofs indicate the requirement of a guardian: the Book, the Sunnah, and correct reasoning. As for consensus, no, because some scholars differed on this, but the opinion of the one who differed is weak.
Then he said "and his conditions" meaning the conditions of the guardian. "Legal capacity" and legal capacity means reaching puberty. "and intellect" So a minor cannot be a guardian. "and the insane is even more so" This is because the minor and the insane are in need of a guardian. Based on this, if a woman has an uncle who is a suitable match in guardianship, and she has a younger brother who has not reached puberty, a full brother, who marries her?
The questioner : Her uncle.
The Shaykh : Her uncle and her full brother, even if there is only one day between him and puberty, he does not marry her. Rather, the uncle marries her. The second condition is "males" It is required that the guardian be male, so there is no guardianship for a female. Accordingly, a mother does not marry her daughter due to the requirement of being male. Now, does a hermaphrodite marry or not?
The questioner : He does not marry.
The Shaykh : He does not marry because being male is necessary. The third condition is freedom, and its opposite is slavery. A slave does not marry because the slave himself is owned, so how can he marry? The correct view is that he does marry, because a slave may be one of the most knowledgeable people about the conditions of people. The purpose of guardianship is that the woman be with a suitable husband. If this slave has lived in the society and knows people through his master or through direct interaction with people, why do we say that he is not valid as a guardian? This is not a guardianship over wealth, so that we would say a slave does not own that in himself, so he does not own it in another. This is a guardianship over marriage. Just as a slave contracts for himself, he also contracts for another. The correct view is that the requirement of freedom is not established.
He said "and prudence in the contract" This is the most important of the conditions: prudence in the contract. That is, he knows the suitable match and the benefits of marriage. Meaning, he is a man of intellect and intelligence who knows the suitable match and knows the benefits of marriage, what benefits result from it, and what harms descend upon it. He must be prudent. Now, if he is prudent in the contract but not prudent in wealth?
The questioner : ... .
The Shaykh : Does it harm or not? It does not harm, because prudence in each place is according to its context. So he is prudent in the contract, but not prudent in wealth, meaning he does not handle his wealth well. We say it is valid for him to be a guardian in the contract, even though regarding wealth he is under restriction and does not transact without the permission of the guardian.
Now, prudence in the contract.
There is no marriage except with a guardian.
لا نكاح إلا بوليAnd marry the unmarried among you
وأنكحوا الأيامى منكمdo not prevent them from remarrying their [former] husbands
فلا تعضلوهن أن ينكحن أزواجهنThere is no marriage except with a guardian.
لا نكاح إلا بوليThen he said "and his conditions" meaning the conditions of the guardian. "Legal capacity" and legal capacity means reaching puberty. "and intellect" So a minor cannot be a guardian. "and the insane is even more so" This is because the minor and the insane are in need of a guardian. Based on this, if a woman has an uncle who is a suitable match in guardianship, and she has a younger brother who has not reached puberty, a full brother, who marries her?
The questioner : Her uncle.
The Shaykh : Her uncle and her full brother, even if there is only one day between him and puberty, he does not marry her. Rather, the uncle marries her. The second condition is "males" It is required that the guardian be male, so there is no guardianship for a female. Accordingly, a mother does not marry her daughter due to the requirement of being male. Now, does a hermaphrodite marry or not?
The questioner : He does not marry.
The Shaykh : He does not marry because being male is necessary. The third condition is freedom, and its opposite is slavery. A slave does not marry because the slave himself is owned, so how can he marry? The correct view is that he does marry, because a slave may be one of the most knowledgeable people about the conditions of people. The purpose of guardianship is that the woman be with a suitable husband. If this slave has lived in the society and knows people through his master or through direct interaction with people, why do we say that he is not valid as a guardian? This is not a guardianship over wealth, so that we would say a slave does not own that in himself, so he does not own it in another. This is a guardianship over marriage. Just as a slave contracts for himself, he also contracts for another. The correct view is that the requirement of freedom is not established.
He said "and prudence in the contract" This is the most important of the conditions: prudence in the contract. That is, he knows the suitable match and the benefits of marriage. Meaning, he is a man of intellect and intelligence who knows the suitable match and knows the benefits of marriage, what benefits result from it, and what harms descend upon it. He must be prudent. Now, if he is prudent in the contract but not prudent in wealth?
The questioner : ... .
The Shaykh : Does it harm or not? It does not harm, because prudence in each place is according to its context. So he is prudent in the contract, but not prudent in wealth, meaning he does not handle his wealth well. We say it is valid for him to be a guardian in the contract, even though regarding wealth he is under restriction and does not transact without the permission of the guardian.
Now, prudence in the contract.