Side Links
Prayer Time

  |      |   

Ranking of guardianship in marriage means placing some guardians before others when it comes to marriage. This can be obligatory or enforced, according to the correct view, in the school of thought of Abu Haneefah in the following hierarchy:

1-   Linage is put fist before any other kind of guardianship. This is the blood linage only and not that of adoption. This covers the following: sonhood, fatherhood, then brotherhood and unclehood.

2-   Circumstantial linage follows, such as that between a master and his freed slave.

3-   Guardian from adoption.

4-   Other relatives that are not of the afore mentioned categories.

5-   The ruler or judge or anyone representing them.

This is based on the view of Imam Abu Haneefah. But his two followers only assigned guardianship  to the first three categories and then the ruler or judge. If not in the three categories, they do not see guardianship given to any other type of relative. Nonetheless, the view of the Imam himself is what is applied in Egyptian courts.

In the case whereby two or more have equal stake in the guardian of a lady, the stronger one is put forth, i.e. a brother from same mother and father (full brother) is stronger than a brother from father alone (half brother). If both are of the same strength, anyone can be her guardian.

As for the Maliks, the power of compulsion is for the master over his slave or father over his little girls in such cases as lower dowry than usual or competence or bad looking. Their reason is the rationality and religious point of the father's comprehensive care for his daughter, for he knows what is better for her than any other person can. Guardian then transfers to the father's appointed representative while he is still alive or his will if after his death. Their evidence on this is the hadith of the prophet (PBUH) that confers the power to compel a little virgin girl on the father, and thus, since the father's representative bears his command and takes his place while alive, he can also do the same after his death.

Therefore, guardian in the Malik's school is strictly based on the 'sabah (such relative bond that outweigh any other in inheritance), making the sonhood stronger, then fatherhood, then paternal uncleshood and maternal unclehood followed by half brothers' children and lastly, paternal grandfathers.

The Shafi' school of thought, the power to compel is bestowed upon the father and then paternal grandfather. This is because he takes the place of the father in catering and caring for her and thus will know the best for her interest too. This is the same for the master over his slave. On this basis, the ranking of the guardian begins from the father, then paternal grandfather, then paternal and maternal half brother, then paternal and maternal half brother's son, then paternal uncle and then his son.

the rating in power of guardian in marriage is the same in inheritance, except in the case of the grandfather who is put forth herein before the brother. However, for the sonhood, he does not act as guardian for marriage for being a son, though it is put first in inheritance.

If the ranks of the 'sabat (out weighing bonds) are lacking, then the freed-adopted and its rank take over. This is how it is also arranged in the inheritance. The prophet (PBUH) said: "Guardianship is a wholesome conglomeration just as the inheritance is." If the master who freed the slave is a woman, the correct view is that such a freed slave is married out under the guardianship of the one who serves as guardian to the female master that freed her. However, the freed slave agreement is required here, not that of her master.

As for the Hanbali school, it takes exactly the format of the Maliki's school of thought.

The objective in giving a summarized essay on the marriage guardianship is to put it to us that the condition of a guardian as upheld by those who uphold it in marriage is not as open as being practiced by most Imams who contract marriages in mosques. They contract marriages with the presence of any relatives who stands as a guardian and do not consider the ranking of the powers of guardianship conferred on the nature and closeness of the bond of relationship.

Therefore, our Imams are at liberty to either hold on to the view that does not consider the presence of a guardian to contract marriage, or hold on to such view and abide strictly by the specifications of such school of thought.



© 2015 - 2016 All rights reserved Islam Message