Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of the Visitors of his Facebook Page “Fiqhi”
Answer to a Question To: Umm Mu’min Maryam Badr
Question:
Peace be upon you, and the mercy of Allah and His blessings.
Dear brother, greetings and kind regards.
Two female marriage officials (Ma’dhunah) were appointed in the city of Hebron and given the authority to conduct marriage contracts...
My question to you, dear brother: Is it permissible for a woman to marry off another woman and conduct the contract for her, given my knowledge of the Hadith: "A woman does not marry off another woman, nor does she marry herself off; for the adulteress is the one who marries herself off," narrated by Ibn Majah and Ibn Khuzyaymah in his Sahih? If it is not permissible, is the contract conducted by a woman valid or void?
May Allah reward you with goodness.
Answer:
And peace be upon you, and the mercy of Allah and His blessings.
Answering this question requires clarifying the reality of the Shari'i ruling regarding the impermissibility of a woman marrying herself or others off. It also requires understanding the reality of the work of a marriage official (Ma’dhun) and the documentation they perform, and then studying whether the ruling on the impermissibility of a woman marrying off another applies to a female Ma’dhun or not...
First: The Shari’i ruling on a woman marrying herself or others off:
The Shari’i ruling indicated by Shari’i evidences is that it is not permissible for a woman to conduct her own marriage contract; meaning, it is not permissible for her to directly initiate the contract. Rather, she must appoint her guardian (Wali), or whoever stands in his place in his absence, to conduct the contract on her behalf. Similarly, it is not permissible for a woman to conduct the marriage contract of other women on their behalf; meaning, a woman cannot be a guardian or a proxy for another woman in the marriage contract. Instead, the guardian and the proxy must be male, according to the jurisprudential details of the subject of guardianship in marriage (Wilayat an-Nikah) in the books of Fiqh. We have mentioned the issue that a woman does not possess the authority to marry herself or others off, along with the evidences, in the book The Social System in Islam, where it states:
(...And if the marriage is contracted, its validity requires the completion of its conditions of validity, which are three conditions:
...And the second: That the marriage is not valid except with a guardian (Wali). Thus, a woman does not possess the authority to marry herself off, nor to marry off others, just as she does not possess the authority to appoint a proxy other than her guardian to marry her off. If she does so, her marriage is not valid... As for the fact that the marriage is not valid except with a guardian, it is due to what Abu Musa narrated from the Prophet ﷺ:
لَا نِكَاحَ إِلَّا بِوَلِيٍّ
"There is no marriage except with a guardian." (Reported by Ibn Hibban and al-Hakim).
As for the fact that a woman does not possess the authority to marry herself off, nor others, nor possess the authority to appoint a proxy other than her guardian to marry her off, it is due to what was narrated by Aisha that the Prophet ﷺ said:
أَيُّمَا امْرَأَةٍ نَكَحَتْ بِغَيْرِ إِذْنِ وَلِيِّهَا فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ
"Whichever woman marries without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid." (Reported by al-Hakim).
And due to what Abu Hurairah narrated from the Prophet ﷺ, who said:
لَا تُزَوِّجُ الْمَرْأَةُ الْمَرْأَةَ وَلَا تُزَوِّجُ الْمَرْأَةُ نَفْسَهَا فَإِنَّ الزَّانِيَةَ هِيَ الَّتِي تُزَوِّجُ نَفْسَهَا
"A woman does not marry off another woman, nor does she marry herself off; for the adulteress is the one who marries herself off.") End of the quote from The Social System in Islam...
Ad-Daraqutni narrated this Hadith as follows: (...Abdul Rahman bin Muhammad al-Muharibi narrated to us from Abd al-Salam bin Harb from Hisham from Ibn Sirin from Abu Hurairah from the Prophet ﷺ who said:
لَا تُزَوِّجُ الْمَرْأَةُ الْمَرْأَةَ وَلَا تُزَوِّجُ الْمَرْأَةُ نَفْسَهَا
"A woman does not marry off another woman, nor does she marry herself off."
And we used to say that the one who marries herself off is the immoral woman (fajirah).) End. In the narration of al-Bayhaqi: (Abu Hurairah, may Allah be pleased with him, said: 'We used to consider the one who marries herself off to be the adulteress'). It was mentioned in Irwa’ al-Ghalil fi Takhrij Ahadith Manar al-Sabil (6/248) by Al-Albani (d. 1420 AH) regarding this Hadith: (I say: its chain of narration is Sahih according to the conditions of the two Sheikhs [Bukhari and Muslim]).
Thus, it is not permissible for a woman to perform the offer (Ijab) in the contract or the acceptance (Qabul) for herself, or to take charge of the offer or acceptance in the marriage contract as a guardian for another woman or as a proxy for another woman... All of that falls within the Hadith: "A woman does not marry off another woman, nor does she marry herself off."
Second: The work of the Marriage Official (Ma’dhun) and the documentation of marriage contracts:
1- The Ma’dhun is a state employee who manages the marriage contract in terms of offer and acceptance between the spouses. He verifies before the marriage the eligibility of the couple, the fulfillment of the Shari'i conditions, and the absence of Shari'i impediments. He also verifies at the time of the contract the identities of the spouses, the guardian, and the witnesses. He prompts the spouses; meaning what the wife's guardian says ("I marry you my daughter...") and what the husband answers ("I accept her marriage...") according to the relevant Shari'i rulings, and he verifies the consent of the betrothed woman... He documents the contract that takes place in writing so that it becomes a recognized official document, including the conditions agreed upon by both parties and the amount of the dowry (mahr), both immediate and deferred... etc.
2- Documenting the marriage contract in state departments is neither a pillar (rukn) nor a condition of validity for the marriage contract. That is, the marriage is contracted and valid if it fulfills its pillars and conditions, even if it is not documented in writing in state departments. However, documentation is obligatory (wajib) for the sake of preserving rights and removing harm if the lack of documentation causes the loss of rights and harm to the spouses and children during disputes. But if the lack of written documentation does not cause the loss of rights or harm to the spouses and children during disputes, then it is not obligatory. This requires verifying the context (tahqiq al-manat) of resolving disputes between spouses and children. In these days, most states do not recognize marriage and parentage unless it is documented in state departments.
Third: The ruling on a woman working as a Ma’dhun:
1- It is clear from what is mentioned above regarding the work of the Ma’dhun that he is not a party to the marriage contract; i.e., in his capacity as a Ma’dhun, he is not a proxy for the wife or the husband in the contract, meaning in the offer and acceptance. The Ma’dhun's job is not to initiate the marriage contract; rather, the initiation of the marriage contract belongs to the two contracting parties: the wife/betrothed woman through her guardian and proxy, and the husband/suitor by himself or through his proxy...
2- Nevertheless, appointing a woman as a Ma’dhun makes her the one who manages the process of the marriage contract. She commands the wife's guardian to say to the husband ("I have married you or given you in marriage my daughter so-and-so...") and tells the husband or his proxy to say ("I have accepted her marriage"), and similar requirements for the marriage contract regarding witnesses and so on. That is, she manages the process of the marriage contract, and her work is not limited solely to documenting the contract, as that is done in state departments like recording the contract in registers and completing the procedures for authentication and signatures from religious endowment officials and interested parties... etc.
3- The Hadiths prohibiting a woman from marrying herself off or acting as a proxy for others in marriage—meaning the impermissibility of the offer and acceptance coming from her—these Hadiths signify through the "signification of allusion" (dalalat al-isharah) the impermissibility of a woman managing the process of offer and acceptance in marriage. To clarify this, we say:
A- The signification of allusion (dalalat al-isharah) is from the mafhum (implied meaning) and is not intended in the text but is understood from it by allusion based on what is mentioned in the text:
- It states in The Islamic Personality (Ash-Shakhsiyyah al-Islamiyyah) Volume 3, Chapter on al-Mafhum: [...The signification of the wording is limited to the mantuq (explicit meaning) and the mafhum (implied meaning). If it is not from the mantuq, then it is from the mafhum, and there is nothing else. Accordingly, the signification of requirement (dalalat al-iqtida’), the signification of notification and indication (dalalat at-tanbih wa al-ima’), and the signification of allusion (dalalat al-isharah) are from the mafhum...
The signification of allusion is when the speech was conveyed to clarify a ruling, or indicated a ruling, but another ruling is understood from it other than the ruling it was conveyed to clarify, even though this other ruling was not intended from the speech. The indication of the speech toward this ruling for which it was not conveyed, and which it did not explicitly point to, but which is understood from it, is the signification of allusion. For example:
The indication of the combination of His saying: ﴿حَمْلُهُ وَفِصَالُهُ ثَلَاثُونَ شَهْراً﴾ "His bearing and weaning is thirty months" and His saying: ﴿فِصَالُهُ فِي عَامَيْنِ﴾ "His weaning is in two years" that the minimum period of pregnancy is six months, even if that was not intended by the wording... and it is called the signification of allusion...] End.
It states in the book Taysir al-Wusul ila al-Usul as examples of the signification of allusion:
[- ﴿وَٱلۡوَٰلِدَٰتُ يُرۡضِعۡنَ أَوۡلَٰدَهُنَّ حَوۡلَيۡنِ كَامِلَيۡنِ لِمَنۡ أَرَادَ أَن يُتِمَّ ٱلرَّضَاعَةَۚ وَعَلَى ٱلۡمَوۡلُودِ لَهُۥ رِزۡقُهُنَّ وَكِسۡوَتُهُنَّ بِٱلۡمَعۡرُوفِ﴾ "Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period]. Upon the father is the mothers' provision and their clothing according to what is acceptable." (Al-Baqarah: 233). It is understood from it by the signification of allusion that lineage is attributed to the father.
He, the Exalted, said: ﴿لَا يَسۡخَرۡ قَوۡم مِّن قَوۡمٍ عَسَىٰٓ أَن يكونوا خَيۡراً مِّنۡهُمۡ وَلَا نِسَآءٌ مِّن نِّسَآءٍ عَسَىٰٓ أَن يَكُنَّ خَيۡراً مِّنۡهُنَّۖ﴾ "O you who have believed, let not a people ridicule [another] people; perhaps they may be better than them; nor let women ridicule [other] women; perhaps they may be better than them." (Al-Hujurat: 11). It is understood from it by the signification of allusion that the society of men is separate from the society of women, so women ridicule women and men ridicule men...] End.
There are other examples:
Al-Hakim reported in al-Mustadrak and said, "This is a Sahih Hadith according to the conditions of the two Sheikhs": from Abu Musa, from the Prophet ﷺ, who said: «الْجُمُعَةُ حَقٌّ وَاجِبٌ عَلَى كُلِّ مُسْلِمٍ فِي جَمَاعَةٍ إِلَّا أَرْبَعَةٌ: عَبْدٌ مَمْلُوكٌ، أَوِ امْرَأَةٌ، أَوْ صَبِيٌّ، أَوْ مَرِيضٌ» "Friday prayer is a mandatory right upon every Muslim in a congregation except four: a slave, a woman, a child, or a sick person." The text came to clarify that Friday prayer is not obligatory for women, but it is understood from it by the signification of allusion that it is not permissible for a woman to lead men in Friday prayer. This is because Friday is an obligation on men and not on women, so the one for whom Friday prayer is mandatory cannot be a follower (ma'mum) to one for whom Friday is not mandatory.
B- Thus, it is understood by the signification of allusion from the Hadiths indicating that a woman does not marry herself off nor others, that it is not permissible for a woman to manage the process of offer and acceptance in marriage, such as saying to the woman's guardian: ("Say I have married you my daughter or my client...") and saying to the husband or his proxy: ("Say I have accepted her marriage..."). It is not permissible for a woman to take charge of that. This is contrary to documenting the contract in state departments after its completion, such as recording it in registers and taking the signatures of specialists on it and the like; this is permissible and there is nothing wrong with it, whether the registration is by a man or a woman.
4- Added to this is another concern, which is that the work of the Ma’dhun is mostly linked to men. The concluding of the marriage contract is done by two men, the witnesses are men, the guardian is a man... and so on... Furthermore, many Islamic countries hold celebrations for the marriage contract, and the Ma’dhun is invited to the house of the wife or the husband, and the contract is concluded in the midst of men. That is, the matter is not limited to the parties of the contract and the witnesses, but extends to others, and the publicizing of the contract occurs through that... The work of the Ma’dhun in some countries is not only in his office in the presence of the parties to the contract and witnesses, but is in the presence of many men... In such a case, it involves impermissible mixing (ikhtilat) with men because it is not limited to the parties of the contract and the witnesses...
The Summary:
• It is not permissible for a woman to marry herself or others off; i.e., it is not permissible for her to perform the offer and acceptance in marriage because the Shari'i texts prevent that. • It is understood by the signification of allusion from these texts that a woman is not permitted to manage the process of offer and acceptance between the spouses. • It is permissible for a woman to record the contract after its completion in state registers, as required by the procedures for documenting contracts. • A woman taking charge of the process of offer and acceptance between spouses is not among the conditions of contracting (in’iqad) nor the conditions of validity (sihha). Therefore, the marriage contract is valid as long as it has fulfilled the conditions of contracting and validity from the spouses.
The Summary of the Summary:
• It is not permissible for a woman to be a Ma’dhunah who manages the process of offer and acceptance between spouses and prompts the spouses with the content of the offer and acceptance. • The marriage contract is valid as long as the conditions of contracting and validity are met, because the identity of the Ma’dhun is not among these conditions.
This is what I outweigh in this matter, and Allah is most Knowing and most Wise.
Your brother, Ata Bin Khalil Abu Al-Rashtah
24 Safar 1441 AH Corresponding to 23/10/2019 CE
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