Under Muslim law, a person below the age of puberty, or a person of unsound mind, has no capacity to enter into a marriage contract without the consent of his or her father, or, in the absence, of his or her guardian in marriage. If the minor possesses understanding (ruhd), then a minor’s contract without the consent of the guardian is not void, it is valid; subject to the ratification by the guardian.
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The Muslim law-givers are unanimous that a person of male sex, who has attained the age of puberty, and who is of sound mind, can enter into a valid contract of marriage without the consent of the guardian; but they are not unanimous whether an adult girl of sound mind can marry without the consent of her guardian. The Hanafis hold the view that the guardian’s power of giving the child of both sexes in marriage comes to an end when the child attains the age of puberty (bulughyef).
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According to the Hedaya. “It is not lawful for a guardian to force an adult virgin into marriage. None, not even a father nor the sovereign, can lawfully contract a woman in marriage who is adult and of sound mind without her consent, whether she be a virgin or not”. The Shias also hold the same view.
According to the Maliki and the Shafii schools, the father’s power over female children does not come to an end till they are married, since these schools hold the view that it is the marriage which alone emancipates a female child from the patria potestas of the father. Ameer Ali remarks: “This harsh doctrine, however, does not appear to be enforced in any community following the Maliki or the Shafii tenets”.
The Kerala High Court has held that the marriage of an adult Shafii girl without the consent of her father, or any other guardian in marriage, is valid. Raghavan, J. observed that the authority of the father or grandfather to act as a guardian of a Shafii girl ceases when she becomes competent to contract, and, therefore, the guardianship in marriage ceases when the girl attains puberty.
Pillai, J. puts it more neatly : ‘Marriage among Muslims being a contract and the contracting parties being the husband and the wife, the consent contemplated in the Shafii sect is that of the wife and not the father or grandfather or any other person who acts as wali at the time of marriage.
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The person, who acts as wali, merely communicates the consent of the wife to the kazi who conducts the marriage and the husband”. It is submitted that this view is not only in consonance with the basic concept of Muslim marriage, but also accords well with the modern social conditions.
Only an adult Muslim of sound mind can be a guardian for marriage. It is doubtful whether the Caste Disabilities Removal Act, 1850, has removed the disability of a Muslim guardian who converts to some 3ther religion. In all the schools of Muslim law, so long as the father is alive and fit, he is the sole guardian and no one else can act as the guardian.
The various schools of Muslim law do not agree as to who is guardian after the death of the father. With the execution of the Malikis, all the other schools agree that an executor cannot act as a guardian in marriage.
According to the Sharya-ul-Islam, an executor has no power to act as the guardian in marriage even if expressly authorized to do so by the will, though he may contract in marriage an adult person who is deficient in understanding.
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Among the Hanafis, after the father, the guardianship in marriage passes to his agnates, nearer being preferred. Imam Muhammad holds the view that in the absence of the agnates, the maula (successor by contract) has the right of guardianship in marriage. After him comes the rules or the judge who may delegate his authority to any person.
The Shias hold the view that after the father, the guardianship belongs to the grandfather, and after him, no relation is entitled to act as the guardian. Under the Shafii school, after the father, the guardianship belongs to the father’s father howsoever high then to the son (by a previous marriage), then full brother, the nephew, the uncle, the cousin, the tutor and the kazi No female is recognized as the guardian in marriage by the Shafts.
After the father, the order of guardianship, among the Malikis, is as follows: the son, the father, the full brother, the consanguine brother, the nephew, the paternal grandfather, the paternal uncle, the cousin, the manummitter, and the kazi. They also do not confer guardianship in marriage on any female.
In those cases where a wali improperly refuses to give his consent, or altogether withholds it, the minor child may approach the kazi for the sanction of marriage, and either kazi himself may give the required consent or he may authorize the next wali to do so.
Improper refusal to give consent by the wali is considered to be an act of oppression. Where a minor has no wali, and there is no kazi who may be approached, then, the minor is free to contract marriage. But, if the dower is small, or the man is not equal to her, the marriage is void, though she may ratify it on attaining majority.
Where a guardian in marriage is incapacitated to exercise the right of giving the child in marriage on account of mental illness, or because, he has become a ghibat-ul-munkata,[241] or he has been sentenced to a long term of imprisonment, then the next wali, in order of guardianship, may give the child in marriage. When a minor child has two guardians equal in degree, e.g., two paternal uncles, then the marriage contracted by anyone of them is valid.
If both have arranged the marriage with two different persons, then the contract prior in time will be void. If both the contracts are contemporaneous, then both of them will be inoperative, till the child on attaining majority, declares anyone of them as first.
A marriage contracted by a remoter guardian in the presence of a nearer guardian is not invalid, the nearer guardian may ratify it, and otherwise the marriage will be invalid. But the right of ratification or cancellation of marriage by the guardian may be lost on, account of his latches, such as one the birth of a child of the marriage.
When a minor is married by a guardian, other than the father, or the grandfather, the minor has the right of repudiation of marriage on attaining puberty; this is known as option of puberty (khyar-ul-bulugh). When the child is married by the father or grandfather, then, too, the child can repudiate the marriage but only in certain circumstances.