If we hold that a more distant relative may serve as guardian even while the nearer guardian is present, then imagine a woman who empowers two guardians and each of them concludes a marriage contract for her. The situation must be one of two cases: either one guardian executed the contract before the other, or both contracts were concluded at the same moment. In either event, the identity of the guardian who acted first may be known or unknown.

When the first guardian is known, the jurists unanimously maintain that the marriage attaches to the first guardian so long as neither of the two has consummated it. They disagree, however, if the second guardian consummates the marriage. One group holds that the woman still belongs to the first guardian; another assigns her to the second. The latter is the view of Mālik and Ibn al-Qāsim, while the former is upheld by al-Shāfiʿī and Ibn ʿAbd al-Ḥakam. If both guardians contracted simultaneously, there is, to the best of my knowledge, no disagreement that the marriage must be annulled.

The cause of the disagreement over whether consummation is decisive lies in the collision of a general text with legal analogy. It is related that the Messenger of Allah—peace and blessings be upon him—said, “Any woman whom two guardians marry off belongs to the first of them.” The general wording of this ḥadīth indicates that the marriage is the first guardian’s, whether or not the second has consummated. Those who make consummation determinative do so by analogy to a disapproved sale whose commodity has already passed out of the seller’s possession—an analogy they acknowledge as weak.

If it is not known which guardian acted first, the majority rule that the contract is annulled. Mālik maintains that it is annulled so long as neither guardian has consummated. Shurayḥ held that the woman is given the choice; whichever man she selects becomes her husband. This is an isolated opinion, reported from ʿUmar ibn ʿAbd al-ʿAzīz.

The Fourth Issue: Guardians’ Obstruction (ʿaḍl)

The scholars agree that a guardian may not block his female ward from marrying an adequate suitor for a dower equal to that of her peers; should he do so, she may appeal to the ruler, who will marry her off—except in the case of the father, about whom the schools differ.

After this consensus they diverge over what counts as the required suitability (kafāʾah) and whether parity in dower forms part of it.

They likewise agree that a woman may refuse to be married off by any guardian who possesses a right of compulsion—such as a father over his virgin daughter—if the prospective husband is not her equal. This consensus holds for a minor; as for an adult woman or a previously married girl who is still a minor, the matter is disputed, as noted earlier. The same applies to an executor in regard to his ward according to the opinion that permits compulsion.

Concerning suitability itself, the jurists are unanimous that religious commitment is indispensable, save for what is reported from Muḥammad ibn al-Ḥasan, who excludes religion from consideration. There is no disagreement that if a father marries his virgin daughter to a wine-drinker—in short, to an openly immoral man—she may refuse; the judge examines the case and separates the couple. The same applies if he marries her to a man whose wealth is illicit or to one who habitually swears oaths of divorce.

They differ, however, on lineage—whether it is part of suitability—and on freedom, financial means, and freedom from physical defects. The well-known view of Mālik is that clients (mawālī) may marry Arab women, and he cites the verse, “Indeed, the most noble of you in the sight of Allah is the most God-fearing among you” (Q 49:13). Sufyān al-Thawrī and Aḥmad hold that an Arab woman should not be married to a client. Abū Ḥanīfah and his colleagues maintain that a woman of Quraysh may marry only a Qurashī, and an Arab woman only an Arab.

The root of their disagreement lies in their divergent readings of the Prophet’s saying, peace and blessings be upon him: “A woman is married for her religion, her beauty, her wealth, or her lineage; so seek the one who possesses religion—may your hands be rubbed with dust.”