The Impact of Modernity on Guardianship in the Marriage Contract: A Comparative Juristic Study.

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Al-Azhar University

Abstract

Guardianship (wilāyah) in the context of marriage is a form of care and protection instituted by Islamic law to safeguard the interests of the woman at the beginning of a pivotal stage in her life. The juristic framework of guardianship is founded on compassion, responsibility, and support. The Qurʾānic verse, “Men are caretakers of women by virtue of what God has given one over the other and by what they spend from their wealth” (al-Nisāʾ: 34), expresses the principle of qiwāmah, which encompasses guardianship and entails responsibility on the part of the guardian. Similarly, the prohibition against obstructing women from marrying suitable spouses, as in “Do not prevent them from marrying their husbands if they agree among themselves in a lawful manner” (al-Baqarah: 232), affirms the woman’s right to choose a spouse within the framework of Sharīʿa-defined guardianship.
Throughout Islamic legal history, the marriage contract has not been subject to major dispute concerning its fundamental structure. However, in the modern era, concepts associated with modernity have significantly influenced perceptions of several aspects of the contract, including the role and necessity of guardianship.
This study investigates how modernist thought has affected the understanding and application of guardianship in the marriage contract. It begins with a conceptual introduction to the key terms, followed by two main chapters. The first chapter examines the juristic rationale for guardianship, the permissibility of a woman contracting her own marriage, and whether guardianship is a condition for validity. The second chapter discusses the types of guardianship in marriage and analyzes the influence of modernity on these classical legal frameworks.
Adopting a comparative juristic method, the study examines the rulings of the major Islamic legal schools and offers a critical assessment of contemporary perspectives.
The findings suggest that juristic engagement with modern social realities can help balance adherence to Sharīʿa principles with evolving societal needs. The study emphasizes the importance of preserving the guardian’s role in a manner that serves the woman’s best interest while remaining within the moral and legal boundaries of Islam.
Among the study’s key recommendations is the need to revise personal status laws in accordance with sound contemporary ijtihād, ensuring both compatibility with Sharīʿa and responsiveness to the changing circumstances of modern Muslim societies, particularly regarding women's rights and family welfare.

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