Is the marriage contract valid if entered into by a woman without the permission of her guardian?
General Chapter
Al-Mughni
Book of Legal Interdiction
Primary text
The marriage contract is valid even without the permission of the woman's guardian. This is the position held by Abu Hanifa. The evidence supporting this view is that marriage is a non-pecuniary contract; therefore, it is valid when undertaken by the woman herself, similar to Khul' (redemption from marriage) or Talaq (divorce). While financial obligations may result from the marriage, this occurs only incidentally (as a secondary consequence, or 'bid-dhimn'), and this incidental financial consequence does not invalidate the contract, just as it does not invalidate divorce.
Supporting text
The marriage contract is invalid without the permission of her guardian, according to Abu Al-Khattab, Al-Shafi'i, and Abu Thawr. Their reasoning is that marriage is a transaction that necessarily imposes a financial obligation (Mahr), and thus, it cannot be validly contracted without the guardian's permission, similar to a purchase transaction.