Her Brother Was Her Guardian For Marriage Because Her Father Did Not Approve Of The Marriage, Then He Agreed One Year Later
Islamic Rulings -
Living Shariah Verdicts
Islamic Questions & Answers
I have a question regarding the validity of my
Nikah. I got married one year ago with my brother as
my guardian, because my father refused to marry me.
After one year, my father had happily accepted my
marriage. I am sometimes worried about the validity of
my nikah, was it islamically correct?
Praise be to Allaah.
(1) This advice is addressed to parents:
The duty of parents is to hasten to arrange the
marriages of the women who are under their
guardianship, if someone who is compatible proposes
marriage and the woman agrees to that. Whoever does
not do that is going against the command of the
Prophet (peace and blessings of Allaah be upon him).
It was narrated from Abu Hurayrah that the Messenger
of Allaah (peace and blessings of Allaah be upon him)
said: "If there comes a proposal of marriage from one
with whose religious commitment and character you are
pleased, then marry [your female relative under your
guardianship] to him, for if you do not do that, there
will be fitnah (temptation, tribulation) on earth and
much corruption." (Narrated by al-Tirmidhi, al-Nikaah,
1004; classed as hasan by al-Albaani in Saheeh Sunan
al-Tirmidhi, no. 865).
It is not permissible to treat them with harshness
[cf. al-Nisaa' 4:19 – interpretation of the meaning]
for any reason that has not been prescribed by Allaah
and His Messenger. "Harsh treatment", as defined by
Ibn Qudaamah, means, "preventing a woman from getting
married to someone who is compatible, if she asks for
that and if each of them wants to marry the other."
(See al-Mughni, part 7, p. 24). Parents and guardians
should hasten to marry the women under their care
because that will protect them from falling into that
which Allaah has forbidden, and so that the guardian
himself will not fall into that which Allaah has
forbidden of the sin of treating them harshly. The
basic principle is that harsh treatment on the part of
the guardian by not letting her marry someone
compatible is haraam, because it is oppression and
harming the woman by depriving her of her right to
marry someone she wants. That is because Allaah
forbade that when He said, addressing guardians:
"… do not prevent them from marrying their (former)
husbands…" [al-Baqarah 2:232 – interpretation of the
(2) The ruling on this matter may be one of two:
The first is that if the closest relative or guardian
of the woman was treating her harshly by preventing
her from getting married, then it is OK for a more
distant relative to act as her guardian in marriage,
even if the closer relative is present, because in
this case he has no right to be her guardian.
Al-Mirdaawi said: "The phrase ‘if the closer relative
is preventing her from getting married then the more
distant relative should act as her guardian in
marriage' is the correct view in the madhhab; most of
our companions share this view… Shaykh Taqiy al-Deen
(may Allaah have mercy on him) said: one of the forms
of ‘harsh treatment' is when no one is proposing
marriage to her, because of the harshness of her
(al-Insaaf, part 5, p. 74)
Shaykh al-Islam Ibn Taymiyah said: If she likes a man
and he is compatible with her, then it is obligatory
for her brother or her (paternal) uncle to act as her
guardian in her marriage to him. If they treat her
harshly and prevents her from marrying, then a
more-distantly related guardian may marry her to him."
(al-Fataawa al-Kubra, part 3, p. 83)
Ibn Qudaamah said: "If her more-closely related
guardian treats her harshly (by not letting her get
married), then the guardianship passes to one who is
more distantly related. This was stated by Ahmad…"
(al-Mughni by Ibn Qudaamah, part 7, p. 24)
Shaykh Ibn ‘Uthaymeen said: If a father prevents his
daughter from marrying someone who is compatible, then
guardianship passes to a more distant relative, the
closest then the closest."
(Fataawa Islamiyyah, part 3, p. 149)
The second is when a more distant relative has
arranged the marriage when the closer relative is
present and was not treating her harshly (by
preventing her from getting married).
Al-Mardaawi said: "If a more distant relative arranged
the marriage for no reason, or a non-relative arranged
the marriage, then this is not valid." (al-Insaaf,
part 8, p. 82).
Al-Bahooti said: "If a more distant relative arranged
the marriage with no reason why a closer relative
could not have arranged it, then the marriage is not
valid… because the more distant relative has no right
of guardianship if a closer relative is present."
(Kashshaaf al-Qinaa', part 5, p. 56)
This issue may be examined further. If the closer
relative approves of this marriage, what is the
ruling? And if the closer relative approves of this
marriage, does his approval make the marriage valid or
The scholars said: If someone arranges the marriage
when there is someone else who is more entitled to
guardianship and he is present, and is not treating
her harshly (by preventing her from getting married),
then the marriage is invalid. This issue includes
three rulings, the first of which is that if the more
distantly related guardian arranges the marriage, when
the more closely related guardian is present, and she
accepts the proposal of marriage without the
permission of the closer relative, then it is not
This was the view of al-Shaafa'i.
Maalik said: It is valid, because this is a guardian,
so it is permissible for him to arrange the marriage
with her permission, as is the case with a closer
The second ruling is that this marriage is null and
void; it was not done with permission or with proper
permission, and it cannot be made valid with the
approval of the closer relative. Marriage in all such
cases is invalid, according to the more sound of the
two reports. This was stated by Ahmad in several
places, and this is the view of al-Shaafa'i, Abu
‘Ubayd and Abu Thawr.
Another report was narrated from Ahmad, in which he
said that it depended on approval, if approval was
given it was permissible, and if approval were not
given, it was invalid.
According to the terminology of the fuqaha', the
fudooli means one who interferes in the rights of
another without any permission from sharee'ah, because
his interfering is not based on any rights of
ownership, trusteeship or guardianship.
(al-Mawsoo'ah al-Fiqhiyyah, part 32, p. 171)
The fuqaha' differed concerning the ruling on a
marriage arranged by a fudooli without any rights of
guardianship or proxy:
The Hanbalis and al-Shaafa'i in al-Jadeed said that
the marriage arranged by a fudooli is invalid and the
approval of the guardian has no effect (i.e., the
marriage contract must be repeated).
The second view is that of Ahmad, according to one
report narrated from him, and of Abu Yoosuf, which is
that the marriage arranged by a fudooli is valid, but
it depends on the approval of the guardian. If he
gives approval then it is OK, but if he disapproves,
it is not valid.
(al-Mawsoo'ah al-Fiqhiyyah, part 32, p. 175)
In conclusion: some of the scholars have said that the
marriage contract is valid if the guardian approves –
as you have seen – and if you want to have more peace
of mind and avoid an area concerning which there are
differences of opinion among the scholars, then do the
marriage contract again. All that is needed is the
proposal from your guardian – your father – and
acceptance from the husband, and the witness of two
Muslim men, and repentance for what has happened.
We ask Allaah to give you strength.