Abstract

The concept of guardianship in shari'a is treated in three (3) ways viz:

Guardianship of persons, Guardianship of marriage and Guardianship of property.
In this work, we shall discuss the general concept of guardianship and matters so
closely related therein .In our paper we shall firstly discuss different concept of
guardianship under shari'ah and their legal basis, then we shall treat the concept of
guardianship of marriage and issues incidental. More so, we shall also provide
Qur'an and other Shari'ah to lay emphasis on the issues incidental. These inter alia
is what we shall focus along the line.

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Introduction

Guardianship under shari'ah is the overall supervision of some persons' affairs. In

every human society and at all time in human history, orphans, insane persons,
minors and women were subjected to maltreatment by some unscrupulous people
including close relatives, however, some of the close relatives of the aforesaid
persons in some situations do misappropriate the funds of such unfortunate
persons.

From the above, it is crystal clear that guardianship is considered in different angle
depending in the circumstances and objectives. More so, the concept of
guardianship is not wholly restricted to the care and welfare of minors( or custody
of children),it is more than mere custody, it is apt to note that, beside guardianship
of children, there exist guardianship in relation to marriage which is also
considered as "Wala". In our discuss we shall pay more attention to guardianship
of marriage otherwise known as concept of "Wilayat".

The major reason of treating the concept of guardianship all together without
taking that of marriage only, is to appreciate the differences between the other
concepts of marriage, and also to draw a thin line between the concepts of
guardianship, and to appreciate the pros and cons of the incidental matters of the
phenomenon.

GENERAL CONCEPT OF GUARDIANSHIP UNDER SHARI'AH

The Arabic word for guardianship is 'WALI' which literally means to

govern, to rule and protect someone who is unable to do so independently.
Guardianship therefore maybe natural, legal or contractual. It is natural when their
is parental relationship between the guardian and his ward: it is contractual when

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the guardian is by appointment (as in the case of executor appointed by the father):
It is legal where the appointment is by the court of law.

Marriage guardianship has been define as legal authority invested in a person who
is fully qualified and competent to safeguard the interest and right of another who
is incapable of doing so independently. It is otherwise an authority of father or
nearest male relatives(in must cases agnate) to represent the female spouse in
contracting marriage.

In Guardianship, the parties to the guardianship is "wali" (the guardian)and the

ward(person whose affairs shall be look after).

The authority of father and/or other male relatives or other relatives of any kind as
the case maybe over minor, insane or inexperience person who need protection and
guardianship by virtue of his incapacity to consult his affairs is quite different with
marriage guardianship because in marriage guardianship the representation is not
because of lack of prudence(Tamyiz), while in the other it arises by lack of Tamyiz
from the ward, hence, what make the types of guardianship similar is that it both
entails 'representation' and all under the purview of "Wala".

In the case of Orphans, is generally expose to may risk, as such, Islam give special
attention to Orphans and their guardianship.

The Qur'an provide thus:

"They ask thy concerning orphans say: the best
thing to do is what is for their good, if you mix
your affairs with theirs, they are your brethren:
but allah knows the man who means mischief from
the man who means good..."
Thus Qur'an further provide thus:

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 "To orphans restore their property (when
they reach their age) nor suptitude your
worthless things for their goo once..."
The verses cited above are very comprehensive in meaning, they teach the muslim
community that in no case should a wealth which is so important for maintenance
of life be entrusted to such people as feeble minded and incapable of using or
managing if properly.

GUARDIASHIP OF MARRIAGE AND INCIDENTAL ISSUES

Wilayah in marriage implies the legal authority granted to a competent guardian to

be exercised over one under a legal disability for his or her advantage. This
discussion comprises the following issues:

Wilayah over a Mature and Sane Girl

The Shafi'i, the Maliki and the Hanbali schools are of the opinion that the wali
(guardian) has the sole authority with respect to the marriage of his sane and major
female ward if she is a maiden. But if she is a thayyib (that is, a girl who has had
sexual intercourse), his authority is contingent on her consent. Neither he can
exercise his authority without her consent, nor she can contract marriage without
his permission. It is wajib that the wali take the responsibility of concluding the
contract, which would not conclude if the woman recites it, though it is essential
that she consent.

The Hanafis regard a sane, grown-up female as competent to choose her husband
and to contract marriage, irrespective of her being a maiden or a thayyib. No one
has any authority over her, nor any right to object, provided she chooses one her
equal and does not stipulate less than a proper dower (mahr al-mithl) for the
marriage. If she marries someone who is not her equal, the wali has the right to

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object and demand the annulment of the contract by the qadi, and if she marries her
equal but for less than the proper dower, the wali has the right to demand
annulment if the husband does not agree to a proper dower. (Abu Zuhrah,
al-'Ahwal al-shakhsiyyah)

Most of the Imamiyyah scholars are of the view that a sane girl of full age, on
maturing, is fully competent to decide her contractual as well as non-contractual
affairs and this includes marriage, regardless of her being a maiden or thayyib.
Therefore, it is valid for her to contract for herself or on behalf of others, directly
or by appointing a deputy, by making an offer or giving her acceptance, and
irrespective of her having or not having a father, a grandfather, or other relatives. It
is of no consequence whether the father agrees or not. The social status of the girl,
higher or lower, and whether she marries a respectable or an abject person, is of no
consequence. No one has a right of objection in this regard. Thus, she is in all
respects on a par with a male, without any difference whatsoever.

The purpose of legislation on the subject of guardianship seems heck to the

unlimited powers of irresponsible family head, the law generally provide that there
can be no valid contract of marriage without the guardianship, the shari'a explicitly
stated that guardianship in marriage is essential element which if found absent will
render the marriage void.

In Qur'an 24:23 it is provided thus:

"Marry(wali) those among you who are

single or virtues one among your slaves(male
or female) if they are in poverty god will give
the means out of his grace for God
encompasses and he knows all things."

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Thus, in Qur'an 2:232:

"When you divorce women and they fulfile the

term of their idda don’t (wali)prevent them from
marrying their(new)husbands when they agree
among themselves according to what is
honourable"

Thus, the prophet also said "Any woman who got married without permission of
her guardian, her marriage will be considered null and void.

However, the Hadith of the noble Prophet further provide who can play the role of
guardian:

"A woman can Not be married by a woman and a woman can not married herself"

From the above authorities, the concept of guardianship in marriage is an essential

element for contracting valid marriage in Islam, this is so when considering the
Provision of the Hadith reported by Aisha which render null and void the marriage
without Wali

Also, in "Tuhfatul Hukkam"(The gift of the judges),the incidental issues of

marriage guardianship is provided inter alia. The book started with the capacity of
the guardian and provide thus:

"The marriage guardian of a woman must be free born and a male, he shall also be
sane and of age, he must also be related to the woman he give away."

"The order of priority in being a woman marriage guardian is such that; the master
of the woman, then her Son, then her father then her brother: followed by her grand

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father and other relatives in the order(i.e then nearest in relationship being given
priority and this must be male agnate)."

The above mentioned stanza in Tuhfatul Hukkam just highlight the requirements
needed before being a guardian, and also it is apt to note that guardian is only
required to represent the female spouse, for the male spouse it is not must, this why
if the male spouse is represented, the person representing him is merely a "Wakil"
not wali.

OTHER INCIDENTAL ISSUES

Among other issues incidental beside legal capacity of the Wali and wali in order
of priority as stated above include: Freedom, Sanity, Adulthood. If is generally
accepted by the majority of the jurist that marriage guardianship is committed to
agnatic relationship of the ward, but Hanafi accepted female and cognate as well.
According to all jurisprudence, a woman who is of full age and capacity can enter
into contractual relationship but they differs as to whether she has full capacity to
contract herself or to act for another in marriage.

According to Maliki, Shafi'i and Hambali; A woman can by no means contract

herself in marriage to a man without the participation of her guardian, neither is
she competent to contract her daughter nor her ward, not to act as matrimonial
agent for any one.

According to the Hanafite, any person who is "sui Juris" whether male or
female(maiden or metron) is competent to enter into a marriage contract in his or
her behalf or on behalf of another person.

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Also, in *Tuhfatul Hukkam" a testamentary guardian has a right to take presence in
giving away, the hand of his ward before other marriage guardian. However, other
jurist consider the reverse of that, but that view is rejected.

Conversely, to some jurist, testamentary guardian shall waive that right and call
upon other guardian to contract that marriage.

A woman appointed as testamentary guardian of another woman can not play the
role of marriage guardian, she must call upon some male relatives of the ward to
do that.

However, whenever a slave or someone who is interdicted get married without

permission, the clear line of action here is that such marriage shall be declared null
and void. If such marriage is dissolve after consummation the woman shall be
given a quarter of dowr (this is what has been the usual practice).

If the husband should die under this circumstances the wife shall not inherit him,
the reverse shall be the case if the wife should die.

If a man concluded a marriage under certain condition unbehalf of his minor son,
and the son consummated the marriage upon reaching poverty at same time fully
aware of those conditions under which his father contracted the marriage for him,
such conditions shall be binding upon the son, but if the son didn’t reach puverty,
even if he consummated the marriage he shall not be liable for those stipulations
even if he is aware of them.

Also in verse 359(of TUHFATUL HUKKAM) If upon becoming aware of the

stipulation, the son rejected them, then the marriage shall be annul by the court by
repudiation and it shall not be binding upon him to pay any dower.

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From verse 347-359(which is mainly a section on "marriage guardianship and the
duties in Guardianship (deemed to be performed)this segment of TUHFATUL
HUKKAM cover the incidental aspect of guardianship as highlight above.

Conclusion

The concept of guardianship as seen above is a right to control the rnovement and
action of a person who owing to immaturity or mental defect or senility is
incapable of taking care of himself. And also, guardianship related to marriage is a
situation whereby the guardian champion the affairs of contracting a marriage.

REFERENCES

- Riaz-ul Hassan Gilani, the reconstruction of Legal through in Islam

- AD Ajijola, Introduction to Islamic law
- Abdrahman Idoi Shari’ah the Islamic law
- Yahaya Bambale, Introduction to family law
- Abdurahman Ibn Asim, Tuhfat at-Aukkam or Gift for the Judge.