Is a marriage contracted by a more distant guardian valid if the nearer guardian is present and the woman agrees without the nearer guardian's consent?

General Chapter

Al-Mughni

Book of Marriage

Book 35 · Issue 2 · Bab 1

Open in Qurani

Primary text

The marriage is invalid if the more distant guardian contracts it while the nearer guardian is present and the woman agrees to it without the nearer guardian's consent. This is the position of Shafi'i. The evidence is that the right of guardianship is established through male kinship (ta'sib), and it does not become established for the more distant relative in the presence of the nearer one, analogous to inheritance.

Supporting text

Malik holds that it is valid because the distant relative is a guardian, and he may marry her with her consent, similar to the nearer guardian.