Introduction
The marriage contract according to Islamic law is preceded by a khiṭbah (solicitation of marriage), is ratified at the behest of the ijāb and qubūl (the “offer” of marriage and the “acceptance” of the marriage), and is stipulated by the presence of legally competent shāhidayn (two witnesses).[1] Within the Shāfi‘ī school of thought, the validity of the marriage contract is also conditional upon the involvement of the walī (often rendered as her nearest male relative). Similarly within Islamic law, it is a common feature that the legal standing of a marriage is conditional on the consent of the woman’s walī, specifically in the following order: 1) the male ascendant in the male line; 2) the nearest male relative in the male line among the descendants of the father; 3) the nearest male relative in the male line among the descendants of the grandfather; 4) the manumitter, in the case of a freed woman, or his male relatives in order of heirs; 5) the ḥākim (whoever represents public authority).[2] This order is observed within the Shāfi‘ī school of law.
“This essay will address two legal positions of the Ḥanafī school in regards to the walī: wherein the absence of a marriageable woman’s guardian (walī) is not grounds to challenge the legal validity of the marriage contract, and the extension of guardianship (wilāyah) to female heirs in intestacy (‘aṣabāt) being a legally valid means of ascertaining wilāyah in a woman’s marriage.”
This essay will address two legal positions of the Ḥanafī school in regards to the walī: wherein the absence of a marriageable woman’s guardian (walī) is not grounds to challenge the legal validity of the marriage contract, and the extension of guardianship (wilāyah) to female heirs in intestacy (‘aṣabāt) being a legally valid means of ascertaining wilāyah in a woman’s marriage.
Discussions about the walī have historically tended to focus on how an Islamic marriage contract is invalid if the walī’s permission is not granted or is circumvented in any circumstance, as is the case in the Shāfi‘ī school of law. Though this is the recognized view within a significant portion of Islamic legal scholarship, the fact of reality is that not all Islamic marriage contracts can be ratified with the satisfaction and/or consent of the male walī. This was recognized by the Ḥanafī school in every district that its legal boundaries extended to. Additionally, a solely literal reading of normative Islamic sources without a jurisprudential framework does not support the position that a woman is unable to marry without the consent of her male walī.
“This essay will explore the validity of the marriage contract in cases where a woman married herself off, or was married off by someone other than the male walī.”
This essay will explore the validity of the marriage contract in cases where a woman married herself off, or was married off by someone other than the male walī. Due to the vast history and wide-reaching borders of the Ḥanafī school, the focus herein will be restricted to the eleventh, twelfth, and nineteenth centuries, between Transoxiana and Damascus, with a specific focus on the seminal legal texts: Kitāb al-Mabsūṭ by Muḥammad b. Aḥmad al-Sarakhsī (d. 1090), Badā’i al-Ṣanā’i by al-Kāsānī (d. 1191), Al-Hidāyah Sharḥ Bidāyah al-Mubtadi’ by Burhān al-Dīn Al-Marghinānī (d. 1197), Fatḥ al-Qadīr by Ibn al-Humām (d. 1457), and the Radd al-Muḥṭar by Ibn ‘Ābidīn (d. 1836). Of course, Imām Abū Ḥanīfah (d. 767) and his students Abū Yūsuf (d. 798) and Muḥammad b. al-Ḥasan al-Shaybānī (d. 805) will be consistently referenced to, due to their status as the founding fathers of the Ḥanafī school of law. For over a thousand years, across various empires, the Ḥanafī school of law provided jurisprudential solutions to problems that affected its Muslim citizens. More specifically, Ḥanafī law has been the de facto jurisprudential legal school of Transoxiana from the ninth century until today. In the modern age, these boundaries extend to Turkmenistan, Uzbekistan, Afghanistan, Turkey, Syria, India, Pakistan, and Bangladesh.
The essay begins by exploring the issue of marriage without a walī through the lens of the normative sources of Islamic law, specifically the Qur’an and Ḥadith literature. Then it analyzes the legal reasoning and opinions of Ḥanafī fuqahā and non-Ḥanafī fuqahā on the issue. Finally, it discusses the role of the ‘aṣabāt in the concept of wilāyah, and its extension to close female relatives within the Ḥanafīs.
Wilāyah in Qur’anic Verses and Ḥadith Narrations
Discussions of Islamic law often begin with the Qur’anic text and Ḥadith scriptures. The concept of wilāyah in the marriage contract can be traced to the Qur’anic text itself, which touches upon the issue using implicit terms: “So marry them with the permission of their people[3] and give them their due compensation according to what is acceptable,”[4] as well as, “And marry the unmarried among you.”[5] These two verses utilize the causal pattern within Arabic morphology,[6] which indicates an extraneous cause that enables an action to take place. In the case of the verses above, this extraneous agent could be the walī. There is also the verse, “Do not prevent them from remarrying their [former] husbands.”[7] In the opinion of Imām al-Shāfi’i, the necessity of the walī can be sourced from this verse, as only the walī can prevent a woman in matters related to her marriage contract. Hence, al-Sarakhsī relates that according to Imām al-Shāfi’ī, this is the clearest verse in God’s book indicating that the marriage contract is invalid without a walī.[8]
“The nineteenth century Damascene Ḥanafī jurist Ibn ʿĀbidīn utilizes hermeneutical and epistemological tools to comparatively analyze why the Ḥanafī school of thought has historically favored the woman’s right to marry whoever she wishes without the consent of the walī…”
A secondary source which is utilized in discussions proving the legal requirement or lack thereof of the walī is from the Prophetic Ḥadith tradition. The nineteenth century Damascene Ḥanafī jurist Ibn ʿĀbidīn utilizes hermeneutical and epistemological tools to comparatively analyze why the Ḥanafī school of thought has historically favored the woman’s right to marry whoever she wishes without the consent of the walī. He dissects the Ḥadith narrations below.
The first narration states that the Prophet Muḥammad said, “[The marriage] of any woman who marries herself off without the permission of her walī—then her marriage is invalid, her marriage is invalid, her marriage is invalid.”[9] A similar narration is mentioned with the same wording in other books of Ḥadith as well. The second narration is referenced in several books of Ḥadith, wherein the Prophet Muḥammad said, “There is no [validity to the] marriage [contract] except through the [permission of] the walī.”[10] Lastly, Ibn ʿĀbidīn cites the Ḥadith which the Ḥanafī school and its fuqahā favor over the first, which is in the Ṣaḥīḥ of Muslim b. al-Ḥajjāj, wherein it is mentioned that the Prophet Muḥammad is reported to have said, “A marriageable woman is more entitled to herself than her walī.”[11]
According to Ibn ʿĀbidīn, the first two narrations are not given precedence due to the weakness in their chain of transmission (isnād). He complements this view by stating that these narrations were specific incidents not intended for general application, that the “no” statement in the Ḥadith has to do with something being incomplete—not necessarily invalidated,[12] and that the wilāyah mentioned in the first two Ḥadiths refers to a set of rules more so than an individual. Specifically, the wilāyah can negate the marriage of a non-Muslim or insane man with a Muslim woman, or with a male or female slave.[13] Al-Kāsāni expands on this in his Badā’i al-Sanā’i, in that the word “bāṭil” is a mere expression of the legal standing of a certain religious action. No ruling can be deduced from it and the validity of the action is not invalidated. What is being illustrated through the word “bāṭil” is the simple reiteration of the fact that it is the right of the awliyā’ to marry off the women they are guardians over, as they possess the right to oppose a marriage or even dissolve it in certain cases.[14 .
Wilāyah According to Ḥanafī Fuqahā
As mentioned above, the Ḥanafī school of law and its scholars were instrumental in providing a legal recourse for women to get married to a suitor without the permission of their walī. All major fiqh compendiums within the Ḥanafī school of law speak about how this opinion was formulated and enforced in specific cases. Below is a rendering of how legal scholars in this school of law in the eleventh, twelfth, fifteenth, and nineteenth centuries actualized this discussion, featuring al-Sarakhsī, al-Marghinānī, Ibn al-Humām, and Ibn ʿĀbidīn.
Fatħ al-Qadīr by Ibn al-Humām
According to Ibn al-Humām in Fatħ al-Qadīr, the walī must be someone in possession of his mental faculties (‘āqil), physically mature (bāligh), and able to inherit (wārith). Similarly, he mentions that wilāyah in the context of the marriage contract is of two types. The first is recommended or supererogatory wilāyah (Wilāyah Nadab wa Istiḥbāb). This type of guardianship is assigned to a woman who is physically mature and mentally competent, regardless of her being a virgin or divorced woman. The second type is forced wilāyah (Wilāyah al-Ijbār) which is enforced upon a girl who is a minor (regardless of whether she is a virgin or divorced woman) or in cases where she is senile, mentally incompetent, or enslaved. Similarly, the wilāyah al-ijbār is established on four bases: kinship, ownership, guardianship, or authority.[15]
Kitāb al-Mabsūṭ by Muḥammad b. Aḥmad al-Sarakhsī
Perhaps the most comprehensive discussion on the issue of a woman marrying without a walī can be found in Kitāb al-Mabsūṭ of the eleventh century scholar Muḥammad b. Aḥmad al-Sarakhsī. He reports a narration from ‘Alī b. Abī Ṭālib, wherein a woman married off her daughter with the daughter’s consent.
“Perhaps the most comprehensive discussion on the issue of a woman marrying without a walī can be found in Kitāb al-Mabsūṭ of the eleventh century scholar Muḥammad b. Aḥmad al-Sarakhsī. He reports a narration from ‘Alī b. Abī Ṭālib, wherein a woman married off her daughter with the daughter’s consent.”The daughter’s guardians arrived and disputed the marriage contract with ‘Alī upon the basis that the girl had been married off without the consent of the woman’s male guardians. Regardless of this, ‘Alī considered the marriage to be valid. Al-Sarakshī used this is as a proof to show that if a woman marries herself off without a male guardian, then her marriage contract is valid. Abū Ḥanīfah further reports in Ẓāhir al-Riwāyah[16] that the validity of the girl’s marriage contract remains the same, regardless of her being a virgin or divorcee, or whether or not she matches her spouse in kafā’ah (socio-economic compatibility) or not. But, according to Abū Ḥanīfah, the awliyā’ have a right to oppose the marriage if the kafā’ah does not match. In essence, the awliyā’ can dispute the marriage if they chose to do so, but the validity of the marriage contract is not disputed solely based on the woman marrying herself off without the approval of the awliyā’. According to Muḥammad, one of Abū Ḥanīfah’s two famous students, the marriage contract will be valid if the kafā’ah matches between the woman and her spouse, but it will be invalid if it does not match. But the reports from Abū Yūsuf, Abū Ḥanīfah’s second famous student, reflect three opinions from him on this matter. The first reported opinion is that Abū Yūsuf said that the woman’s marriage contract would be invalid regardless of whether she matched with her spouse in kafā’ah, due to the issue of her walī not participating in the contract. After retracting this view, it is reported that Abū Yūsuf said that on the basis of the kafā’ah matching, the marriage contract will be valid. But if the kafā’ah does not match, then the marriage contract will be invalid. He then also retracted this view and finally said that the marriage contract is valid regardless of the kafā’ah matching between the woman and her spouse—in essence agreeing with the view of Abū Ḥanīfah.
Al-Sarakhsī then cites a quote from al-Ṭaḥāwī (d. 933), who elucidates on the opinion of Abū Yūsuf in this matter, which is that if the spouse matches in kafā’ah to the woman, then a judge can order the walī to allow the marriage contract to be legally ratified. But if the walī refuses to allow it, the marriage contract will not be annulled in that case. Since the judge will allow it, the permissibility of the marriage will be honored. In respect to Abū Yūsuf’s view, Imām Muḥammad mentions that the marriage contract will be suspended until the permission of the walī is granted. This is regardless of whether her kafā’ah matches with her spouse or not. If the walī permits the marriage, the marriage contract will be ratified. If he refuses, the marriage contract will be invalidated.
The exception that al-Sarakhsī reports from Imām Muḥammad is if the man’s kafā’ah matches with the woman. In this case, the judge should revive the marriage contract if the walī refuses to marry the woman to the man. In essence, Imām Muḥammad is placing the validity of the marriage in the hands of the judge. Legally speaking, the validity of the marriage lies in the walī’s hands before judicial intervention. But if the matter is legally escalated, then the court ought to be in favor of the woman on the basis that her kafā’ah matches the man she wishes to marry. This is what al-Sarakhsī mentions of this matter.[17]
Al- Hidāyah Sharḥ Bidāyat al-Mubtadi by Burhān al-Dīn Al-Marghinānī
Another comprehensive discussion on the issue of a woman marrying herself off without a walī can be found in the Hidāyah of al-Marghinānī. He was a student of al-Sarakhsī whose fiqh compendium became the de facto law book of the Ḥanafī school of law in the Indian Subcontinent after the country’s independence.[18] Though much of what al-Marghinānī emphasizes is a reiteration of al-Sarakhsī’s position, he provides a flowing narrative about how a marriage contract ought to be legally formalized. He states that the marriage of a free, mentally capable, physically mature woman is recognized in Islamic law, regardless of whether the walī convenes upon the contract for her or not. Along with many of the other Transoxianan Ḥanafī jurists, al-Marghinānī does not differentiate between the woman’s marital status as a virgin or divorcee as a potential condition in the validity of the marriage contract.
“Along with many of the other Transoxianan Ḥanafī jurists, al-Marghinānī does not differentiate between the woman’s marital status as a virgin or divorcee as a potential condition in the validity of the marriage contract.”He supports his opinion with corroborating evidence that has been cited from Abū Ḥanīfah and Abū Yūsuf in Ẓāhir al-Riwāyah. Though this is the general opinion which has been understood to be the standard Ḥanafī position, al-Marghinānī also mentions an outlier opinion attributed to Abū Yūsuf stating that the marriage contract is not established except through the permission of the guardian, though it does not matter if the walī is a man or woman (potentially leading to the discussion of a woman being a walī in the absence of the male ‘aṣabāt). But in the opinion of Imām Muḥammad, the establishment of the marriage contract is suspended, conditional upon the permission being granted by the walī.
While Mālik and Al-Shāfi’ī argued against this position, Imām Muḥammad further mentioned that the objectives[19] of marriage can be executed easily with the permission of the guardian. This is because the basis of the permissibility of her marrying without a walī is that she is engaging in an act that is solely her right.[20] It is from her legal capacity, as she is mentally capable due to her ability to discern her actions. For the same reason, she is able to engage in financial transactions. Therefore, since she possesses her full mental capacity, she has the right to legally bind a marriage contract herself.
“It is important to keep in mind that the discourse in the books of fiqh is about the legal validity of the marriage contract, and not necessarily whether it is socially more fitting for a woman to use the channel of wilāyah or not. Though the Ḥanafīs provide the legal validity of the marriage contract, they still hold that it is better for a woman to get married through the walī when possible. “
It is important to keep in mind that the discourse in the books of fiqh is about the legal validity of the marriage contract, and not necessarily whether it is socially more fitting for a woman to use the channel of wilāyah or not. Though the Ḥanafīs provide the legal validity of the marriage contract, they still hold that it is better for a woman to get married through the walī when possible. Hence, according to al-Marghinānī, the guardian is sought in marriage so that the woman is not labeled as immodest. The Ẓāhir al-Riwāyah similarly mentions that a lack of kafā’ah between a man and a woman should not be the sole reason to invalidate a marriage contract, even though the walī possesses the right to turn away a man who is found to not be of equal kafā’ah to the woman in his guardianship. According to Abū Ḥanīfah and Abū Yūsuf, marriage is not permissible with someone of non-equal kafā’ah, as many matters that arise from a lack of kafā’ah cannot be resolved by merely resorting to the law, as they are not subject to trial in a court of law.[21] Though Muḥammad initially disagreed about the validity of the marriage contract without the condition of kafā’ah between the spouses, he later resorted to the opinion of Abū Ḥanīfah and Abū Yūsuf.
The Ḥanafīs consider a woman free to marry whoever she pleases if she is in possession of her mental faculties. But al-Shāfi’ī relies on the analogy of a minor girl who is unaware of the matters of marriage and lacks experience. The father can hold onto her dowry without her permission. In this case of forced guardianship (wilāyah al-ijbār), it is only being actualized upon a minor due to her inability to mentally comprehend the situation of marriage. But if and when this minor reaches the age of puberty (bālighah), the forced nature of her wilāyah is lifted on the evidence that the communication from the Lawgiver (the khiṭāb) becomes directed towards her (due to the principle that puberty makes her legally responsible for her actions).” So her legal status will be treated just like a young man, who has the choice to freely dispose of his rights and engage in business transactions now that he has mentally matured. Hence, it is not for anyone to force their wilāyah on her. This is the case of a prepubescent girl, hence, it is impermissible for the walī to force a bālighah virgin into a marriage.[22] .
Female Wilāyah Among the Ḥanafīs
It is reported that Imām Abū Ḥanīfah allowed a minor girl to be married off by a female walī if no one from the male ‘aṣabāt was present to do so. This opinion was opposed by his students Abū Yūsuf and Muḥammad. The allowance was made for close female relatives such as the mother, sister, and aunt. Abū Ḥanīfah cites the verse “And marry the unmarried among you” as a proof for this, as the verse does not make a distinction between ‘aṣabāt and non-’aṣabāt.[23]
“It is reported that Imām Abū Ḥanīfah allowed a minor girl to be married off by a female walī if no one from the male ‘aṣabāt was present to do so. This opinion was opposed by his students Abū Yūsuf and Muḥammad.”
Ibn ʿĀbidīn builds on this point by mentioning how women were given the authority to assume the status of the ‘aṣabāt in the absence of a male walī. In the scenario wherein none of a woman’s familial or causal ‘aṣabāt are present, then the wilāyah is passed onto the girl’s mother.[24] Though al-Zuḥaylī mentions that this was only the opinion of Abū Ḥanīfah, Ibn ʿĀbidīn reports that this was the view of Abū Yūsuf as well.[25] Muḥammad held that besides the ruler, there is no wilāyah for anyone besides the textually sanctioned ‘aṣabāt.[26] Ibn ʿĀbidīn comments further about the former opinion, noting that it was exercised by the Ḥanafīs through the legal deduction of istiḥsān, which was translated by Johansen as “the method of giving legal preference to a norm because of its practical or moral superiority over a norm derived from analogical reasoning.[27]” This was the major tool of legal reasoning enacted by the Ḥanafīs to further this position, and a common legal deduction method that was favored over the usage of qiyas (deductive analytical reasoning).
Attention is then turned to a situation where the opposite practice of the above is enacted, wherein the mother of the father is given priority precedence over the mother of the girl in regards to wilāyah based on the ‘aṣabāt. Similarly, ‘Umar al-Nasafī and others give precedence to the sister of the male ‘aṣabah over the mother of the girl, due to the sister being from the family of the original walī. Though this was the practice, Ibn ʿĀbidīn posits that the texts favor the mother of the girl over any other females as the priority female ‘asabah after the males. This opinion is further substantiated by al-Shurunbulālī and others, wherein the first ‘aṣabah after the males will be the mother, then the maternal grandmother, then the sister of the father, and then the mother of the father.[28]
Conclusion
Marriage is an important social and religious construction in Islam, as it establishes legal, familial, and financial relationships through a social contract. The concepts of wilāyah and the aṣabāt are foundational principles in the institution of marriage, whose practical implementation has been varied over the last fourteen hundred years since the advent of Islam.
While many Islamic jurists contended that wilāyah and the aṣabāt are a male-restricted arena, it was the Ḥanafīs who claimed otherwise. Though the reasons are many, the trailblazing nature of such a shift may be rooted in the non-Arab historical features of the Ḥanafī school of law, its politics and poetics, which began in a theological dialogue during the Umayyad Dynasty and eventually spread throughout Transoxiana under the Sassanian Empire, and later served as the dominant school in the golden eras of the Ottoman and Mughal Empires.
“While many Islamic jurists contended that wilāyah and the aṣabāt are a male-restricted arena, it was the Ḥanafīs who claimed otherwise. Though the reasons are many, the trailblazing nature of such a shift may be rooted in the non-Arab historical features of the Ḥanafī school of law, its politics and poetics, which began in a theological dialogue during the Umayyad Dynasty and eventually spread throughout Transoxiana under the Sassanian Empire, and later served as the dominant school in the golden eras of the Ottoman and Mughal Empires.”
As Johansen testifies, “Ḥanafī jurists do not claim that legal concepts have universal and uniform legal consequences.” The Ḥanafīs recognized that time and place play a major factor in the application of law through various historical periods. The Ḥanafīs were legal geniuses in rooting the positive law they produced within a bonified legal and theological history. “They link the history of cases to the history of doctrine.”[29] It was this casuistry that made the Ḥanafī school of thought distinct from its sister schools. Though much of their inquiry could be argued to have been glorified sophistry, it is this analytical reasoning and conjecture that led to an alternative view within Islamic law that favored an egalitarian approach allowing a woman to get married through her own agency. It was the Ḥanafīs that were able to go beyond purely legal dimensions, and mix the law between a practical social setting which was conducive to women who may not have been under the wilāyah of male family members.
In conclusion, deriving positive Islamic law which is practical to the social realities of people requires delving “into the historical, doctrinal and philosophical conditions” of the law and its people. Being aware of the everyday realities of people is a good segway to ensure the practical application of the law, wherein its intended objectives are fulfilled within society.
Nihal Ahmad Khan is the Director of Religious Affairs at the Islamic Center of Connecticut. He holds a MA in Religious Studies from the Hartford Seminary, during which time he completed coursework and research at Harvard Divinity School. He also holds a shahādah al-‘ālimiyyah degree from Nadwat al-‘Ulamā in Lucknow, India, and a BA in Psychology from Montclair State University. Previously, he served the Center for Muslim Life at Yale University as a guest instructor. Nihal’s research interests revolve around the roles of mental and legal capacity in Islamic law as they interact with modern mental health diagnoses.
*Top image: Nikahnama | https://nikah-nama.com/
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Al-Sarakhsī, Muḥammad b. Aḥmad b. Abī Sahl Abū Bakr, Kitāb al-Mabsūṭ, Beirut, Lebanon, Dār al-Ma’rifah
Al-Tirmidhī, Abū ‘Īsa, Jāmi’ al-Tirmidhī, Darussalam Publications, Riyadh, Saudi Arabia, 2009
Al-Zuḥaylī, Wahbah., Al-Fiqh Al-Islāmī Wa Adillatuhū, Damascus, Syria, Dar al-Fikr Publications, 1985
Ibn ‘Ābidīn, Muḥammad Amīn, Radd al-Muḥṭār, Riyadh, Saudi Arabia, Dār al-Kutub al-‘Ilmiyyah, 2003
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Johansen, Baber
“Casuistry: Between Legal Concept and Social Praxis,” Islamic Law and Society, Vol. 2, No. 2 (1995), pp. 135-156, Brill Publishers.
“Dissent and Uncertainty in the Process of Legal Norm Construction in Muslim Sunni Law,” in Law and Tradition in Classical Islamic Thought, New York, NY, Palgrave Macmillan, 2013.
[1] Schacht, Joseph, “Nikāḥ”, in: Encyclopaedia of Islam, First Edition (1913-1936), Edited by M. Th. Houtsma, T.W. Arnold, R. Basset, R. Hartmann. Consulted online on 18 December 2018 <https://referenceworks.brillonline.com/entries/encyclopaedia-of-islam-1/*-SIM_3485> First published online: 2012 First print edition: ISBN: 9789004082656, 1913-1936
[2] Ibid., p. 2
[3] A better translation for the world أَهْلٌ would perhaps be “family” instead of “people.”
[4] Sahih International Translation, Riyadh, Saudi Arabia, 4:25
[5] Ibid, 24:32
[6] أفْعَلَ يُفْعِلُ إفْعَالٌ. Cited as “Pattern I” in the Hans-Wehr Dictionary of Modern Written Arabic, Edited by J.M. Cowan
[7] Ibid, 2:232
[8] al-Sarakhsī, Kitāb al-Mabsūṭ, 5:11
[9] Jāmi’ al-Tirmidhī, Book on Marriage, 11:23
[10] Ibid., 11:22
[11] Ṣaḥīḥ Muslim, Book of Marriage, 16:78
[12] This is a common interpretive tool used in hadith literature within the Hanafi school. This was also the Hanafi response to the hadith indicating the invalidity of the prayer without the recitation of the first chapter of the Quran—لا صلاة إلا بفاتحة الكتاب
[13] Ibn ʿĀbidīn, Radd al-Muhtar, 4:155
[14] Al-Kāsāni, Badā’i al-Sanā’i, 3:371-372
[15] Ibn al-Humām, Fatḥ al-Qadīr, 3:246
[16]According to Bilal Ali Ansari, “The Zahir al-Riwayah primarily serve as a compendium of the legal opinions of the three preeminent imams of the madhhab, namely Abu Hanifah, Abu Yusuf, and Muḥammad (who are also called sometimes Ashab al-Madhhab).” https://www.ilmgate.org/ibn-abidins-division-of-hanafi-legal-rulings/
[17] Al-Sarakhsī, Kitāb al-Mabsūṭ, 5:10
[18] A peculiar point about the Hidāyah is that the British Empire found such value in this book, that they translated its entirety and legally bound the Muslim community to it as a static form of personal law in the Indian subcontinent. Hence, its use, mention, and discussion has significantly increased in the last one hundred and fifty years or so due to British colonization in the Indian subcontinent.
[19] According to Al-‘Aynī (d. 855), the objectives of marriage are to seek compatibility between both individuals—the man and the woman. While Mālik and Al-Shāfi’ī will argue that a woman in that era was incapable of executing her own affairs in marriage, the Ḥanafīs will concur otherwise, Al-Bināyah Sharḥ al-Hidāyah, 5:72, Dār al-Kutub al-‘Ilmiyyah, و مقاصده هو أن يستدعي التوافق بينهما عادة
[20] The famous Indian scholar Shiblī Nu’mānī (d. 1914) mentions that Abū Ḥanīfah held the view that women were equals alongside men in matters related to business, marriage, and other such facets.
[21] This is a reference to the various cultural and socioeconomic issues that may arise due to an incompatibility between the spouses.
[22] Al-Marghinānī, Al-Hidāyah Sharḥ Bidāyat al-Mubtadi. 3:31-33
[23] Al-Zuhaylī, Al-Fiqh al-Islāmi Wa Adillatuhū, 7:181. As mentioned by Al-Sarakhsī and Al-Kāsānī.
[24] Ibn ‘Ābidīn, Radd al-Muḥtār, 4:195,فلولاية للأمّ
[25] A common feature that has been observed within the Hanafi school of law is that often a faqīh may step away from a previous opinion. This may have happened in this case, but was not recorded herein.
[26] Ibid., 4:195, ليس لغير العصبات ولاية و إنما للحاكم
[27] Dissent and Uncertainty in the Process of Legal Norm Construction in Muslim Sunnı Law, p. 130
[28] Ibid., 4:195
[29] Casuistry: Between Legal Concept and Social Praxis, Islamic Law and Society, Vol. 2, No. 2 (1995), P.155