Guardianship Over the Female Youths

Precaution in the Case of the Virgin Young Lady

The Independent Young Woman

The Young Lady Who May Look After Her Affairs (Raashida)

Exhorting to Good (Al-Amr Bi-l-Maruf) is Different From Guardianship

Confusion Between Custom and Shariah Law

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What are the limits of the guardian over his female ward?

There is no guardianship over the girl who is mature, sane, and able to conduct her affairs; just as there is no guardianship over the youth who is mature, sane, and able to conduct his affairs. This is because when a person has attained puberty, and is of sound judgment, then he has the right to conduct his own affairs: "Test the orphans until they reach the age of puberty; then if you find in them maturity of intellect turn over to them their property" (al-Nisa, 4:6). The matter here is not restricted only to the orphans, but to anyone under such conditions.

According to some jurists, based on some hadith, there are restrictions, which dictate that a virgin must seek the counsel and permission of her father or grandfather. This is not because guardianship is implied in the general meaning of the word, since neither the father nor grandfather has the right to marry her off without her consent. Nor do they have the right to marry the minor boy or girl who has not yet attained puberty without her consent. Rather, the young woman must consent if they are to be allowed to marry her.

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There are some precautions for the virgin in view of her lack of experience, or the possibility that she may be duped or cheated. From this perspective, her seeking the permission of her father counts as a way to protect the young lady in her marriage relation with any man. Moreover, because of this there is no requirement that permission be sought from the father or the grandfather, if she is no longer a virgin.

It is likely that some people may not see the issue as being restricted to this aspect, but as including respect for her father or grandfather, according to the traditions of Mediterranean Islamic societies. Since the girl is not married except by the permission of her father or grandfather, it would seem that the issue includes social respect for the father or grandfather, who must have a say in the affairs of his daughter. The premise is that a bad position for her reflects badly on her father, and a good position for her reflects well on him.

From here, the jurists do not feel that if the father and grandfather is dead, anyone's permission should be sought, indicating that the matter is not one of her inability to exercise judgment, but is related to a precautionary measure for the future of the girl, or to showing respect to the father and grandfather.

There is another view which says that it is not obligatory for the girl to seek the permission of her father or grandfather regarding her spouse, that she is free to make this decision.

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As for my own view, the girl is independent regarding her personal affairs and property, if she normally exercises good judgment.

This is because the man in society may have more experience in matters of marriage and a general understanding of marriage. He has more opportunity to do so than the young woman.

This is one angle. From another angle, the matter may be explained on the basis that the man, if he is deceived in marriage, has the right to issue a divorce; whereas Islam has not given the woman the right of divorce. This means that the woman must be cautious not to fall into a situation from which she cannot escape except with great difficulty.

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How may we determine the age of maturity and guidance-meaning when can the young woman look after her own affairs?

There is no specific age, for we may find a responsible young lady who may be only eleven or twelve years old, and we may find a girl who is in her twenties and unable to conduct her own affairs.

The communal understanding stems from the mental level of the young man and young lady have which enables them to look after their financial affairs in a way that is not considered as sign of foolish behavior.

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In a situation where the young lady is married, does her father's guardianship over her terminate?

Basically, there is no guardianship of the father over his daughter once she attains puberty and can conduct her own affairs. But as we have said, it is simply to protect her in the issue of marriage. Except for this, the father has no guardianship in any other area. If we imagine that he has a daughter, then he has no guardianship over her education, her jihad, and her financial conduct-except when she becomes corrupt. In that case, it is not an issue of the father in relation to his daughter, but one of a believer with respect to a believing woman in that area where the good must be commanded and evil forbidden (al-amr bi-l-maruf wa-n-nahi ani-l-munkar). Therefore, the father has no guardianship over his daughter, either before or after marriage.

Not in the context of being a father or a husband, but in the context of his being a Muslim-ordering that which is right and forbidding that which is wrong. When a young lady obeys her father by observing the hijab, she does not obey him because he is her father or that fatherhood dictates this, but rather because he exhorts and guides. It must be realized that the process of coercion may create negative repercussions which may create a greater problem than the one being solved. The Shariah guidelines then must be followed when commanding the good and forbidding the evil.

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Custom is sometimes given precedence over Shariah law. However, it cannot be given precedence over Shariah in any situation. The role of custom is based on the understanding drawn from the religious texts of the Quran and Sunna in this area. The matter may be one of natural difference in object per se as opposed to difference in a perceived custom. For example, there is a fatwa which states that: "It is not permitted for a man to wear women's dress, nor is it permitted for a woman to wear men's clothing." If we assume that a certain dress was initially male garb, and its usage has become so widespread that it is an item for both sexes (such as trousers), then the precedence of customary practice with respect to the changed status of this garb has changed the issue. When a woman today wears trousers, she is not seen as imitating a man, since the trousers are worn by both sexes.

Custom may be applied to the change in particular aspects of the scope of a Shariah ruling, but may not change the Shariah ruling itself as long as the general scope of the subject holds.

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While we are discussing customary practice, let us go to the subject of Mutah or temporary marriage-for customary practice in several societies regards this as putting down the woman, since she is treated sometimes as a fornicator.

We cannot, as a basic principle, respect the view of customary perception on this subject. This is because Islam came to change perceptions. When custom rejects and considers something wrong which Islam perceives as natural, we cannot yield to custom. However, the negative view of custom may lead, in cases such as these, to dislike the act. A hostile view towards the practice may cause it to be seen as dishonoring the man and the woman, and a person may not wish to put himself in this dubious position.

Therefore, the position we take is strong dislike of temporary marriage for virgins, even if the father and grandfather are not present, since this may lead the woman to be dishonored in social circles.

We may note that custom is quite prevalent in the area of dishonor. Some tribal societies may consider that a woman who is married outside of her family, or to someone other than her cousin to be dishonorable. This negative view may also apply to the marriage of a divorced woman or a widow.

Islam came to correct the perception of custom. But if custom plays a role where it is seen as a second criterion of judgment, then the Shariah ruling follows this new criterion, which may regard something as disliked [makruh] or even forbidden [haram], etc.

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Has Islam legislated temporary marriage (Mutah) as a natural right of a person to whenever he wishes, or is it legislated for a specific situation or as a solution to a specific problem?

The Quranic text which the proponents of Mutah refer to is: "And those of whom you seek content (istamtatum) [by marrying them], give to them their due" (al-Nisa, 4:24). We find this text unconditional. When we analyze the subject of Mutah, however, we find that it may be an answer to an emergency; it may deal with a particular need; or it may deal with a desire. Permanent marriage, throughout history and in every religion and civilization, did not solve this problem for humankind, nor restrained people, as in the case of the people of Lot. For fornication in illicit relations went side by side with permanent marriage. This was because permanent marriage may not be the solution for a man who has a stronger libido that his wife; as such, Islam allowed him to marry four and allowed him Mutah, as he wishes in order to protect himself from corruption. The matter then is not restricted to a particular time.

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Is the plurality of wives natural? Was it intended to solve a problem? Is it possible for a man to marry, from the outset, four wives, or is it an opening for him to solve certain marital problems?

It appears the issue is unconditional with respect to pressing problem or lack thereof, since the requirement for the man who wishes to engage in polygyny, is that he possess the means of support.

We believe that abundant confusion in married life has become normal in America and Europe, and in places around the globe; although illicit relationships are far more frequent than polygyny, with all its tensions.

Naturally polygyny has negative aspects, just as monogamy has negative aspects. There is no legislation which does not have a negative side. The issue, however, is that when the positive aspects outweigh the negative, it becomes permissible. When the negative aspects outweigh the positive aspects, it becomes forbidden.

We believe that polygyny, with all its negative aspects, still has several positive, mitigating factors.

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There are several views on early or delayed marriage. There are those who prefer early marriage and those who prefer later.

In Islam, early marriage is desirable, since a person is required to protect himself and to avoid falling into haram. There is no doubt that early marriage allows the person to satiate his sexual instincts, the cravings of which, may otherwise lead to deviant behavior.

We also note that Islam has not presented a clear text on this, but rather sees marriage as a personal relationship which allows a person to pursue his desires or to satisfy his instincts, among other things. If early marriage presents problems for the two spouses, these problems may be solved by those around them-in the same way that delayed marriage presents a problem to the community.