WILAYAT AL-AB ‘ALA AL-MAR'AH FI AL-NIKAH BAYN AL-FIQH WA LA-QANUN AL-USRAH AL-JAZA’IRI DIRASAT FIQHIYYAH MUQARANAH FI DAW‘ AL-KITAB WA AL-SUNNAH

[THE GUARDIANSHIP OF THE FATHER OVER A WOMAN IN MARRIAGE UNDER THE ISLAMIC JURISPRUDENCE AND THE ALGERIAN FAMILY LAW: A COMPARATIVE JURISPRUDENTIAL STUDY IN THE LIGHT OF THE QURAN AND THE SUNNAH]

Abstract

Abstract: Islam attached great importance to guardianship in marriage hence made it a condition for it’s validity in order to preserve the rights of women, the offspring and dignity.  The classical and contemporary jurists have been concerned with explaining the ruling on a woman’s guardian in marriage. Relatively, the family laws in Islamic countries have also not neglected this aspect, including the Algerian Family Law. The issue concerned in this study is that the Algerian law does not require the consent of the father over the adult woman in marriage, as well as the rest of the guardians over her. The guardianship of father, however, is required in the case of a minor daughter. The grounds for such provision in the legislation were not supported by any basis from the Quran or the Sunnah. Thus, this study aims to identify the rulings on guardianship of the father over the woman under the four schools of law (mazhab) and the Algerian family law, the woman’s right to assign guardianship to someone other than the father, as well as the basis on which the Algerian family law differentiated between the adult and the minor. Inductive and comparative approach were employed, whereby the data was collected using primary sources and analyzed comparatively with the legal provisions. The study reached a number of results, including: the unanimous opinion of the different schools of law to prioritize the woman’s interest by marrying her to a compatible man; and where the closest guardian is absent, the marriage of a sane adult woman is taken over by a trusted person from her kinship with her permission.