when the nearer guardian is present and qualified. Thus, if a woman has a paternal uncle and a paternal cousin, and her paternal cousin marries her off while her paternal uncle is present in the town, the marriage is invalid. Likewise, if the judge marries her off, it is invalid; and if her neighbor marries her off, then it is invalid all the more so. But if her nearer guardian—Allah forbid—does not pray, and the more distant guardian marries her off, the marriage is valid, because the nearer guardian is not qualified for guardianship. Whoever does not pray has no guardianship, because he is a disbeliever—Allah forbid.
If he shaves his beard and the more distant guardian marries her off, then according to the madhhab the marriage is invalid, because he is openly sinful. If the nearer guardian smokes, however, but does so secretly, and the more distant guardian marries her off, then the marriage is invalid even according to the madhhab. This is because they stipulate outward uprightness. Therefore, the guardianship of one who does not openly commit sin remains valid, since he is outwardly upright.
Question: Can a husband serve as the guardian?
Yes, he can. Thus, if a paternal cousin wishes to marry his female paternal cousin, and she has no one closer than him, this is permissible. But what should he say at the time of the contract? Should he say, “I give myself my female paternal cousin in marriage,” bring witnesses, and say, “I call you to witness that I have given myself my female paternal cousin in marriage”? Or is something less than this sufficient? The answer is that if he brings witnesses and says, “I call you to witness that I have given myself my female paternal cousin in marriage,” it is valid. He may also say, “I call you to witness that I have married her,” if she is present and they witness her consent.
A comparable case is when a master says to his slave woman: “I have emancipated you and made your emancipation your bridal gift.” This involves neither an offer nor an acceptance, but it suffices in place of both offer and acceptance.