and his further descendants, however remote; then the paternal uncle, followed by the remaining agnatic relatives in the same order that they inherit. A full brother is preferred over a paternal half-brother, according to the stronger view. A man is not entitled to act as guardian merely by virtue of being her son; nonetheless, if he happens to be the son of a paternal cousin, the emancipator, or the judge, he may serve as guardian on that other basis. If no blood relative is available, the woman is married off by her emancipator; if he is absent, then by his agnatic relatives according to the rules of inheritance. A female slave freed by a woman is married off by the same party who would marry off that female emancipator herself, so long as the emancipator is alive, and—on the sound view—the freedwoman’s own permission is not required. When the emancipating woman dies, the right devolves upon whoever inherits her wala’; and if neither the emancipator nor any of his agnates is present, the ruler contracts the marriage.
The ruler likewise intervenes when a close relative or emancipator withholds consent out of obstinacy. Obstinacy exists only when an adult, sane woman seeks to marry an eligible suitor and the guardian refuses. Even if she specifies a particular eligible man but the father prefers another who is equally suitable, the father’s choice prevails on the sound view.
Section
There is no guardianship for a slave, a minor, an insane person, or anyone whose judgment is impaired by extreme old age or mental disorder; the same holds—according to the school—for one who is legally interdicted for prodigality. If the nearest relative is affected by any of these defects, the guardianship passes to the next in line. Where the guardian is merely unconscious: if the condition is not expected to last, one waits until he regains consciousness; if it normally extends for several days, one should still wait—though another opinion assigns the duty to the next relative. Blindness does not invalidate guardianship on the sound view. A flagrant transgressor cannot serve as guardian, according to the school, while a non-Muslim may act as guardian for a non-Muslim woman.
Entering the state of ihram by either contracting party or by the bride invalidates the marriage contract yet—on the soundest position—does not transfer guardianship. Thus, if the guardian is in ihram, the ruler, not the next relative, performs the marriage.
I, al-Nawawī, say: Should the guardian or the groom enter ihram and have his licit agent conclude the contract, it remains invalid—and Allah knows best.
If the closest guardian is two stages’ travel away, the ruler may marry her off; if he is closer than that, no one may contract the marriage without his permission, on the preponderant view.
A guardian with the right of compulsion may appoint an agent to contract the marriage without the woman’s authorization, and—according to the stronger opinion—he need not specify the groom by name. The agent must act cautiously and not marry her to anyone who is not her equal.
As for a guardian who lacks the power of compulsion: if the woman says, “Appoint an agent,” he may do so; if she forbids him, he may not. Should she say, “Marry me off,” then, on the sound view, he is permitted to appoint an agent. If he delegates another before even seeking her permission to marry, the agency is invalid on the correct view.
In the formula, the guardian’s agent should say, “I marry to you the daughter of so-and-so.” The guardian should say to the groom’s agent, “I marry my daughter to so-and-so,” whereupon the groom’s agent replies, “I accept her marriage on his behalf,” and the contract becomes binding.