For example, suppose that the father has travelled to a European country and no news is known of him. In that case, we say: we should not let the woman’s interests be lost merely in order to seek out this man, for we may remain two or three months—or even a year—without knowing anything of him.
The madhhab, too, differs from the author’s view. According to the madhhab, if he is absent by a distance that permits shortening the prayer, the more distant guardian may marry her off. Thus, if, for example, the guardian is in Zulfi while she is in Unayzah (1), her father is not to be consulted; rather, the more distant guardian marries her off. This is because they hold that whoever is separated from his female ward by a journey distance that permits shortening the prayer forfeits his guardianship. Yet all of this is open to question. The correct view is that whenever it is possible to consult the nearer guardian, doing so is obligatory. If that is not possible, however, and a suitable match would otherwise be lost, then the more distant guardian should marry her off.
His statement: “If the more distant guardian, or a non-relative, marries her off without a valid excuse, it is invalid.” Here, “the more distant” means the remote guardian. It does not mean that, if there is no brother, then, for example, the emancipator may marry her off while her paternal uncle is present, or that her paternal cousin may marry her off while her paternal uncle is present. Rather, “the more distant” here means the remote guardian; or it is understood as, “more distant than him”—that is, more distant than this nearer guardian.
“If the more distant guardian, or a non-relative, marries her off without a valid excuse, it is invalid.”
His statement, “If the more distant guardian, or a non-relative, marries her off without a valid excuse, it is invalid,” means when the nearer guardian is present and qualified to exercise guardianship. In that case, the marriage is invalid, because the Prophet’s saying, “There is no marriage except with a guardian (2),” employs a term derived from guardianship. This requires that the one with the greatest entitlement be given precedence, then the next most entitled. We have previously mentioned that whenever a ruling is attached to a particular attribute, the ruling becomes stronger to the extent that the attribute is stronger in the person concerned. Since the ruling has been attached to guardianship, the one who is more entitled has the greater right; and those after him have no right.