Can a father dispose, as he pleases, of the hand of his daughter without asking her consent?

There are no followers of the Maliki School in India, although there are adherents of the Shafi’i school. Which also grants tone father the right of ijbar over his major daughter as long as she is a virgin. The relevant passage from the Minhaj-al-Talibin (a highly esteemed Shafi’i text dating from the 13th century) reads as follows:

A father can dispose, as he pleases, of the hand of his daughter without asking her consent, whatever her age may be, provid­ed she is still a virgin.

It is, however, always commendable to consult her as to her future husband, and her formal consent to the marriage is necessary if she has already lost her virginity.

It is important to note that as long ago as 1928, the Indian court refused to recognise the validity of a Shafi’i marriage if the girl were a major chronologically at the time of the solemnization and if it were proved that the marriage had been performed with­out her consent.

Hassan Kutti v. Jainabha, decided by the Madras High Court in 1928, concerned a young Shafi woman married by her father without her knowledge or consent; she sought to have the marriage declared invalid.

The Madras High Court considered the statement of law con­tained in the Minhaj-al-Talibin but preferred to rely on more recent treatises, particularly that of Amir ‘Ali-an Indian jurist of the late 19th and early 20th centuries, who profoundly influenced the development of Muslim law in South Asia.

Emphasizing that the contractual nature of marriage under Muslim law necessitated the consent of the contracting parties.

The Court accepted Amir ‘Ali’s conclusion that the difference between Shafi and Maliki law on the one hand, and that of the Hanafis and Shiahs on the other did not concern the necessity of the consent of an adult bride (her consent in all cases being necessary for the validity of the marriage).

But merely involved the manner in which the bride’s consent to the marriage was to be expressed. According to Amir ‘Ali:

Among the Shafi’is a woman cannot personally consent to the marriage. The presence of the wali or guardian is essentially necessary to give validity to the contract.

The wali’s inter­vention is required by the Shafi’is and the Malikis to supple­ment the presumed incapacity of the woman to understand the nature of the contract.

To settle the terms and other matters of similar import, and to guard the girl from being victimised by an unscrupulous adventurer or from marrying a person morally or socially unfitted for her.

Under the Maliki and Shafi’i law, the marriage of an adult girl is not valid unless her consent is obtained to it, but such consent must be given through a legally authorised wali, who would act as her representative.

Under the Hanafi and Shiah law, the woman can consent to her own marriage either with or without a wali.

According to Amir ‘Ali’s reinterpretation, however necessary, it may be in Shafi’i and Maliki law that the girl’s consent to the marriage be expressed through her father acting as her wali or marriage guardian.

The father’s consent did not obviate the need for the consent of the girl if she was an adult. There could thus be no power of ijbar over an adult woman.

“This view,” asserted the Madras High Court nearly sixty years ago, “is certainly more equitable and more suited to modern times.”

In the Madras case the girl’s consent had not been sought and the marriage had been performed without her knowledge; the marriage was, therefore, invalid and not binding on her.

Hassan Kutti v. Jainabha was followed by the Bombay High Court in Sayad Mohiuddin v. Khatijabi the latter case concerned a young Shafi’i woman who had learned that her father (who was living apart from herself and her mother) had arranged her marriage with a man of whom she did not approve.

She actively opposed the proposed marriage and attempted to prevent it. The marriage was solemnized against her will and in the face of her opposition.

When she refused to take up residence with her husband, he brought a suit for restitution of conjugal rights against her. Relying on the interpretation of Shafi’i law accepted by the Madras High Court, the Bombay Court held the marriage invalid.

The learned Judges of the Madras High Court have accepted this opinion [of Amir ‘All] and help that even among the Shafi’is, the marriage of an adult virgin is invalid if it is performed without her consent.

In this case not only did the defendant No. 1 not give her consent, but she had actually approached the police to have the marriage prevented, and the marriage was ultimately forced upon her against her wishes.

Under the Mahommedan law marriage is a contract, and the marriage thus celebrated under compulsion cannot be regarded as valid.

These two cases dealt with the question of the Shafi’i father’s right to marry his adult daughter without her consent.

Although the courts held that the consent of the girl was necessary, the implication was clearly that the consent of the girl had to be expressed through her wali (marriage guardian), who would ordinarily be her father.

Did it follow that a Shafi’i virgin, even though a major chronologically, could not marry without her father’s consent?

This latter question, not directly posed in these earlier cases, arose for consideration in more recent litigation.

Abubukker v. Marrakar concerned the validity of the marriage of a Shafi’i girl whose father (who had deserted and subsequently been divorced by her mother) had not consented to the girl’s marriage and sought to have it declared invalid.

He initially succeeded; the lower courts, relying inter alia on Hassan Kutti v. Jai abhahad held that the father’s consent was essential for the validity of the marriage. The Kerala High Court accepted the girl’s

Marriage Guardianship and Minor’s Marriage at Islamic Law 373 Appeal. Again, reliance was heavily placed on Amir ‘Ali’s Mohammedan Law, particularly the following passages:

Among the Malikis and the Shafi’is the presence of the wali at a marriage is always necessary he right of the wali is exercised only by virtue of special authorisation granted by the woman.

She is not only entitled to consult her own interests in matrimony, but can appoint whomsoever she chooses to represent her and protect her legitimate interests.

To recapitulate:-Under the Maliki and Shafi’i law, the marriage of an adult girl is not valid unless her consent is obtained to it, but such consent must be given through a legally authorised wali, who would act as her representative.

The Kerala court concluded that while it would be proper for an adult girl to obtain her father’s consent before marrying, a marriage would not be rendered invalid because his consent was not forthcoming. The consent crucial to the validity of the marriage was that of the girl herself:

Marriage among Muslims being a contract and the contracting parties being the husband and the wife.

The consent contem­plated in the Shafi’i sect is that of the wife and not of the father or grandfather or any other person who acts as the wali at the time of the marriage.

The person who acts as the wali only communicates the consent of the wife to the Kazi who conducts the marriage.

In the present case, the girl’s mother had attempted to obtain the father’s consent to the match; he declined to give it, the court found, out of spite for the woman who had divorced him and her daughter.

In such a situation, the 2nd defendant [the would-be bride] was not helpless. She could constitute any other relation or the Kazi qadi to act as her agent for communicating her consent to the marriage and that was what she did. She constituted The Kazi himself her agent for the purpose. The marriage is perfectly valid.

Thus, in India (the Sudan), the Shafi’i (as the Maliki) father’s right of compelling his adult daughter in marriage against her will, and also his right of preventing his adult daughter from marrying a man of her own choice, have been abolished.

Modern Muslim scholars and judges willing to prefer the interpretations found in recent treatises as “more equitable and more suited to modern times “have both contributed to the emancipation of the Shafi’i adult woman in South Asia.