"A woman does not marry herself or anyone else, and the father of the woman is given priority in her marriage contract, followed by his testamentary executor in this matter."
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The Shaykh : All right, he said "A woman does not marry herself or anyone else". Yes, a woman does not marry herself, because if it were valid for her to marry herself, there would be no benefit to the condition of the guardian (wali). If she married herself, the contract would not be valid. As for the saying of the Prophet (peace and blessings be upon him) , his meaning by that is her permission in the marriage, not that she marries herself. The apparent meaning of the author's words is that a woman does not marry herself, even in a state of dire necessity. For example, if a woman is in a land where she has no guardian and there is no Muslim authority, she does not marry herself. So what does she do? We said that the one who has authority in her location marries her, even if he is the manager of an Islamic community, such as the administrators of Islamic associations in America and elsewhere. The manager is looked to, and he marries her, because this manager has authority in his place. But if there is no one, like a man and a woman who fled their country, and during the journey the man says, "I have a problem with this woman. I cannot restrain myself from the woman." Yes, should I commit unlawful sexual intercourse with her, or should I marry her through a marriage contract? What does he do?
The questioner : ... .
The Shaykh : He marries her through a marriage contract. All right, is he the guardian, or is she the female guardian?
The questioner : He is the guardian.
The Shaykh : Yes, there are two opinions among the scholars regarding this. Some say that he marries her himself; he asks her, "Do you agree to marry me?" If she says yes, he says, "I have married you to myself," and the matter is concluded. All right, we have no witnesses? It is a dire necessity, correct? Or is it said that she is the one who marries? He says, "Do you wish to marry me to yourself?" She says yes. He says, "Marry me." She says, "I have married you to myself." He says, "I accept." Which is closer to the truth? The second is closer to the truth. The second is closer because there is no legal guardian present. And if there is no legal guardian, she has more right to herself. The matter is now one of dire necessity; he will not be able to restrain himself. So is this contract we made in a state of dire necessity in this manner, or should he commit unlawful sexual intercourse with her?
The questioner : ... .
The Shaykh : The first option, without a doubt, the first is better. All right, and his saying "or anyone else" means she does not marry anyone else. It is known that if she is not permitted to marry herself, then not permitting her to marry anyone else is even more so. And on this basis, O 'Abd Allah, the mother does not marry her daughter, and the older sister does not marry her younger sister. All right, then he said regarding the order of guardians "and the father of the woman is given priority in her marriage contract". Write "in her marriage contract" (inkah). "In her marriage" (nikah) is not appropriate. Is he the one who marries his daughter? That is not appropriate. "In her marriage contract" means in the contract of marriage for her, but the previous conditions must be observed.
The second point, he said "then his testamentary executor in this matter". This is the well-known view in the school of jurisprudence (madhhab) that the father's testamentary executor is in the position of the father. So if a man makes a will to a person, saying, "My testamentary executor after my death in marrying my daughters is so-and-so, the son of so-and-so," and the man dies, and he has a father and sons—his father is the grandfather of the son, and his sons are the brothers of the daughter—does her grandfather marry her? No, nor do her brothers. This is the school of jurisprudence, and the correct view is contrary to that. The correct view is that guardianship is not obtained through a testamentary appointment. It is said to you, O father, your right to guardianship is as long as you are alive. But after your death, the matter belongs to Allah and His Messenger, not to you. All right, if someone asks, "Is his agent in his position?" We say yes. And what is the difference between the agent and the testamentary executor? The agent is during life, and the testamentary executor is after death. And on this basis, if a person appoints another person to marry his daughter, no one among her relatives can marry her as long as the agent remains and the principal remains. If the principal dies, the agency is dissolved. And if the agent dies? Yes? The agency is dissolved. It is known. All right.
A woman who has had sexual intercourse has more right to herself.
الثيب أحق بنفسهاThe questioner : ... .
The Shaykh : He marries her through a marriage contract. All right, is he the guardian, or is she the female guardian?
The questioner : He is the guardian.
The Shaykh : Yes, there are two opinions among the scholars regarding this. Some say that he marries her himself; he asks her, "Do you agree to marry me?" If she says yes, he says, "I have married you to myself," and the matter is concluded. All right, we have no witnesses? It is a dire necessity, correct? Or is it said that she is the one who marries? He says, "Do you wish to marry me to yourself?" She says yes. He says, "Marry me." She says, "I have married you to myself." He says, "I accept." Which is closer to the truth? The second is closer to the truth. The second is closer because there is no legal guardian present. And if there is no legal guardian, she has more right to herself. The matter is now one of dire necessity; he will not be able to restrain himself. So is this contract we made in a state of dire necessity in this manner, or should he commit unlawful sexual intercourse with her?
The questioner : ... .
The Shaykh : The first option, without a doubt, the first is better. All right, and his saying "or anyone else" means she does not marry anyone else. It is known that if she is not permitted to marry herself, then not permitting her to marry anyone else is even more so. And on this basis, O 'Abd Allah, the mother does not marry her daughter, and the older sister does not marry her younger sister. All right, then he said regarding the order of guardians "and the father of the woman is given priority in her marriage contract". Write "in her marriage contract" (inkah). "In her marriage" (nikah) is not appropriate. Is he the one who marries his daughter? That is not appropriate. "In her marriage contract" means in the contract of marriage for her, but the previous conditions must be observed.
The second point, he said "then his testamentary executor in this matter". This is the well-known view in the school of jurisprudence (madhhab) that the father's testamentary executor is in the position of the father. So if a man makes a will to a person, saying, "My testamentary executor after my death in marrying my daughters is so-and-so, the son of so-and-so," and the man dies, and he has a father and sons—his father is the grandfather of the son, and his sons are the brothers of the daughter—does her grandfather marry her? No, nor do her brothers. This is the school of jurisprudence, and the correct view is contrary to that. The correct view is that guardianship is not obtained through a testamentary appointment. It is said to you, O father, your right to guardianship is as long as you are alive. But after your death, the matter belongs to Allah and His Messenger, not to you. All right, if someone asks, "Is his agent in his position?" We say yes. And what is the difference between the agent and the testamentary executor? The agent is during life, and the testamentary executor is after death. And on this basis, if a person appoints another person to marry his daughter, no one among her relatives can marry her as long as the agent remains and the principal remains. If the principal dies, the agency is dissolved. And if the agent dies? Yes? The agency is dissolved. It is known. All right.