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Question ID:601
Date Published: July 03, 2005
Suitability in Marriage: Kafa'a
Answered by Shaykh Faraz Rabbani
Question:
(1) Can a girl who is a sayyidah (i.e. a direct descendent of the Prophet sal Allahu alayhi wa sallam via Hazrat Ali and Sayyida Fatima alayhimus-salam) marry a Muslim who is a non-sayyid?
Answer:
Walaikum assalam,
They can marry if the guardian accepts.
(2) Will the nikah be valid if they go ahead and marry even if she is a virgin and her wali disagrees with it on the basis of kufu'?
According to the fatwa position in the Hanafi school, the marriage itself will be invalid.
In particular cases, one should refer to reliable scholars, especially when secondary considerations (such as pregnancy) exist.
(3) What if he is from the Quraysh tribe but not a sayyid can she still marry him?
It would be valid, yes, because all of Quraysh are considered suitable for each other. However, it is going against the sunna to marry without the guardian's permission.
(4) What exactly is kufu' and is it legally binding by which I mean can a nikah be considered legally non-valid in the Hanafi fiqh if the married couple are not each others kufu'? Or is it just for recommendation purposes and can the nikah go ahead and still be valid?
See below.
(5) Is an ajami man considered the kufu' for an Arabi girl? For example if I wanted to marry an Arabic girl would it be allowed in shar'iah?
It is allowed, pending guardian's approval, in normal cases.
(6) Is it true that a religious scholar ('alim) is considered kufu' for any girl even if he is an 'ajami and she is a sayyidah?
Yes, this is the relied upon position in the school.
What is this issue of suitability in marriage, Sidi? When does it count and what is the fiqh of it?
Walaikum assalam,
This returns to the issue of kafa�a (suitability). The discussion below centers on legal validity, not appropriateness. As for appropriateness: it is inappropriate and against the sunna, in normal situations, for a woman to marry without her guardian�s consent.
In the Hanafi school, a sane adult woman has the right to marry herself, even without the permission of her guardian (wali).
If she marries herself to someone who is a suitable match (kuf�) for her, then there is agreement in the school that the marriage is valid and binding.
If she married herself to someone who is not a suitable match for her, then the fatwa in the madhhab is that the marriage is invalid. This is the narration of Hasan ibn Ziyad from Abu Hanifa, and was chosen by Qadi Khan, Marghinani and the later scholars as the fatwa position in the madhhab.
The established transmitted position of Abu Hanifa (dhahir al-riwaya), however, is that even a marriage to a non-suitable match (ghayr kuf�) without the guardian�s consent is valid. However, the guardian (wali) has the right to take the matter to an Islamic judge (qadi) to seek to get the marriage annulled. This position, however, was not chosen for fatwa by the great Hanafi scholars, because of many factors.
Suitability in the Hanafi Madhhab
Suitability (kafa�a) of the man is the right of the guardian (wali) and the right of the woman. As such, if both drop their right, it is not of consideration. If one drops their right to consider the suitor�s suitability, the other�s right remains.
Therefore, if a woman marries a non-suitable match with her immediate guardian�s approval before the marriage contract, the marriage is valid.
If she marries herself to a non-suitable match without her immediate guardian�s approval before the marriage contract, then the marriage is not valid, because even if she drops her right the guardian�s right remains.
Suitability is considered at the time of the marriage contract, not after.
What are the considerations for suitability?
Suitability is considered in six things:
1. Lineage, if the two parties are of Arab origin;
2. Islam;
3. Freedom;
4. Wealth;
5. Religiousness;
6. Profession.
1. Lineage:
Arabs, according to the fuqaha, are those whose lineage is established to go back to one of the Arab tribes. Others are considered non-Arab (`ajami).
All of Quraysh (f: whether sayyid or non-sayyid) are considered suitable for each other.
All Arabs are considered suitable for each other, except that non-Qurayshis are not considered suitable for Qurayshis.
Non-Arabs are not suitable matches for Arabs.
Lineage is not considered for non-Arabs.
2. Islam
Muslim ancestry is considered in non-Arabs, not in Arabs.
Among non-Arabs, then, Muslim ancestry is considered with respect to father and paternal grandfather only.
Someone Muslim whose father is not Muslim is not a suitable match for someone whose father is Muslim.
Someone Muslim whose father is Muslim but paternal grandfather is not Muslim is not a suitable match for someone whose paternal grandfather is Muslim.
3. Freedom
(Of little relevance in our times.) The same considerations apply to freedom (f: i.e. not being a slave) as do with Islam.
4. Wealth
This entails the suitor possessing:
a) the amount of mahr (dowry) that is customarily given up front (f: not the whole mahr), and
b) a month�s support for the wife, if without a job, or being able to provide for the wife daily if with a job.
Beyond this, having little or much wealth is of no consideration in terms of suitability.
5. Religiousness
A religiously corrupt man is not suitable for a righteous woman with a righteous father.
A religiously corrupt man is suitable for a religiously corrupt woman, whether she has a righteous father or not.
6. Profession
This is considered in other than Arabs, and among Arabs who themselves work [f: i.e. as opposed to owning business interests, for example].
If the profession of the suitor and the woman�s father are similar in social standing, then he is considered a suitable match.
If the profession of the suitor and the woman�s father are disparate in social standing, then the suitor with a comparatively low profession is not considered suitable for someone of a high profession.
The customs of each land are considered in terms of the social standing of different professions.
Other considerations:
The rank of knowledge is greater than the rank of lineage. As such, a non-Arab scholar is considered suitable for an Arab woman even if she is from Quraysh (f: who, as mentioned, are all of the same rank in terms of suitability).
[Summarized from Qudri Basha�s
al-Ahkam al-Shar`iyya fi�l Ahwal al-Shakhsiyya, items 62 � 69, with Muhammad Zayd al-Abyani�s
Mukhtasar Sharh al-Ahkam al-Shar`iyya fi�l Ahwal al-Shakhsiyya, p. 64-70; these texts are based on (and correspond to) the relied upon position of the Hanafi school, as chosen by Sayyidi Muhammad Amin ibn Abidin in his
Radd al-Muhtar `ala al-Durr al-Mukhtar, 2.317-329, Bulaq ed.]
And Allah alone gives success.
Walaikum assalam,
Faraz Rabbani.
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