Who possesses the guardianship ('Wilayah') for the marriage contract of a free woman?
General Chapter
Al-Mughni
Book of Marriage
Primary text
The father has the primary right to marry off his free female kin, and no one else has authority alongside him. This is the position held by Al-Shafi'i and the renowned view attributed to Abu Hanifa.
Supporting text
Al-Malik, Al-Anbari, Abu Yusuf, Ishaq, and Ibn al-Mundhir hold that the son has precedence, based on the reasoning that he is stronger in kinship support ('Ta'seeb') and inherits before the grandfather. This view is also reported from Abu Hanifa. The counter-argument posits that since the child is a 'gift' to the father, the giver (the father) has a greater right to guardianship over the gift than the recipient (the son). Furthermore, the father possesses superior consideration and compassion, thus meriting precedence in guardianship, similar to his precedence over the grandfather. The father also manages the affairs of his young, incompetent, or insane child, which should extend to all established areas of guardianship, unlike the son's guardianship.