Which marriage is valid when a woman has two guardians (waliyyan) who marry her to two different men?

General Chapter

Al-Mughni

Book of Marriage

Book 35 · Issue 10 · Bab 1

Open in Qurani

Primary text

If a woman has two guardians and permits both to marry her to whomever they wish, and they contract two marriages to two different men, the marriage contracted by the guardian who acted first is the valid one, even if the second guardian had intercourse with her, unless the second guardian had sexual intercourse, in which case the second guardian takes precedence. This view is held by Al-Hasan, Al-Zuhri, Qatadah, Ibn Sirin, Al-Awza'i, Al-Thawri, Al-Shafi'i, Abu 'Ubayd, and the People of Opinion, including 'Ata' and Malik (with the caveat regarding prior intercourse). The evidence cited is the statement of 'Umar: 'If two guardians contract marriage, the first is more entitled, unless the second has consummated it.' The rationale for the second being entitled if consummation occurred is that his contract was followed by possession (qabd). The primary evidence is the Hadith: 'Any woman whom two guardians marry, she belongs to the first,' narrated by Abu Dawud, Al-Tirmidhi, and Al-Nasa'i from Samura and 'Uqbah.

Supporting text

The evidence for the first guardian being prioritized is the Hadith cited, and because the second marriage is into a woman already in the bond of marriage, rendering it void, similar to marrying a woman known to be married or one in her waiting period ('iddah). The report attributed to 'Umar is not validated by Hadith scholars and contradicts the statement of 'Ali.