The third question is this: if the father is absent from his virgin daughter, does guardianship pass on, or does it remain with him?

As for the first issue, Mālik voiced three different opinions. On one occasion he said: “If a more distant relative contracts the marriage while the nearer guardian is present, the marriage is void.” At another time he said: “The marriage is valid.” And at yet another he said: “The nearer guardian may either ratify it or annul it.” All of this divergence, in his view, applies to everyone except the father with respect to his virgin daughter and the testamentary executor with respect to his ward, for in these two cases he is unequivocal that the marriage is void—meaning: if someone other than the father marries off a virgin daughter while the father is present, or someone other than the executor marries off a ward while the executor is present.

Al-Shāfiʿī held that no one at all may contract a marriage in the father’s presence, whether the woman is a virgin or previously married.

The root of the disagreement lies in whether the ordering of guardians is itself a ruling established by the Sharīʿah in the matter of guardianship. If it is, is this order a right that belongs to the nearer guardian, or a right that belongs to God? Whoever denies that the order is a legal ruling says that the more distant guardian may validly contract the marriage even while the nearer is present. Whoever regards it as a legal ruling and a right of the nearer guardian says that the marriage takes effect; if the nearer guardian endorses it, it stands, and if he does not, it is annulled. Whoever considers it a right belonging to God says that the marriage never comes into force at all. Some scholars within the school reject the very notion of a marriage that is simultaneously annulled and yet never truly valid.

With respect to the second issue, Mālik says: when the nearer guardian is absent, guardianship passes to the more distant relative. Al-Shāfiʿī says: it passes to the ruler. Their dispute turns on whether absence is legally equivalent to death, for they agree unanimously that guardianship does pass on in the event of death.

The third issue concerns the father’s absence from his virgin daughter. Within the Mālikī school the matter is treated in detail, and opinions vary according to how far away he is, the length of the absence, whether his whereabouts are known or unknown, and the daughter’s need for marriage—whether because she lacks financial support, because there is fear for her chastity, or for both reasons combined.

The school agrees that if the absence is distant, or the father’s status is unknown, or he is held captive, and the daughter is both safeguarded and provided for, then if she does not request marriage she is not married off. If she does request it, she may be married in the cases of captivity and unknown whereabouts.

They differ, however, about marrying her when his location is known yet distant. One view—Mālik’s—is that she may be married; another, held by ʿAbd al-Malik and Ibn Wahb, is that she may not.

Should she lack maintenance or protection, she may be married in all three situations—distant absence, captivity, and unknown whereabouts; and likewise if both conditions, lack of provision and lack of protection, are combined. Thus, if she is unprotected she may be married even without making a request.

So far as I know, they do not differ that she is not to be married during a nearby, known absence, because the father can be reached.

Nevertheless, in view of the overriding welfare on which this entire discussion is founded, it is not far-fetched to say that if time is pressing and the ruler fears that she may be exposed to corruption, she may be married off even though her father is in a nearby location.