How Does a Previously-Married Woman Have More Right to Herself than Her Guardian?

Answered by Shaykh Irshaad Sedick

Question

What does the hadith about a previously married woman having more right over herself than her guardian mean? How does Islamic Law distinguish between a virgin and a non-virgin in marriage decisions?

Answer

In the Name of Allah, the Most Merciful and Compassionate. May Allah alleviate our difficulties and guide us to what pleases Him. Amin.

The hadith emphasizes that a previously married woman (thayyib) has more authority in making her marriage decisions compared to a virgin (bikr). However, this does not mean she can marry without a wali (guardian). According to the Shafi‘i School, a wali is integral to the marriage contract. The Prophet (Allah bless him and give him peace) said: “Let no woman marry herself off” [Ibn Maja; Daraqutni].

Differences in Guardianship

In the Shafi‘i School, a virgin’s father or grandfather (wali mujbir) can marry her off without her explicit consent if it’s a suitable match. However, a previously married woman must give express permission, and her silence is not considered consent [Nawawi, Minhaj al-Talibin].

Islamic and Civil Laws on Marriage

While Islamic Law allows guardians a role in marriage, civil laws in many countries impose further restrictions, such as legal age limits or the requirement for explicit consent. These laws aim to prevent abuse and protect vulnerable individuals.

Islam’s Position on Abuse

Islam strictly prohibits any form of abuse, including the exploitation of women or children. The Prophet (Allah bless him and give him peace) said, “There should be neither harming nor reciprocating harm” [Ibn Maja].

Obligations to Follow Civil Laws

Muslims must adhere to the civil laws of their country as long as they don’t contradict Islamic principles. Civil laws, such as those concerning marriage, are often designed to ensure justice and prevent harm, which aligns with Sacred Law. Allah knows best.

I pray this is beneficial. Allah knows best.

[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Muhammad Abu Bakr Badhib

Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar Shaykh Taha Karaan.

Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Mawlana Yusuf Karaan, and Mawlana Abdul Hafeez Makki, among others.

He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has served as the Director of the Discover Islam Centre and Al Jeem Foundation. For the last five years till present, he has served as the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.

Shaykh Irshaad has thirteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic online learning and media platform called ‘Isnad Academy’ and has completed his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy living and fitness.