The Law Firm of Hazim Al Madani Attorneys and Legal Consultants

Legal Guardianship and Customary Laws

By: Rawan Alnabet

After the issue of (Forfeiture Of Guardianship) became a matter of public opinion and a subject of great controversy among many groups of society and between supporters and opponents, we set out to search for the limits of the state as it came in Islamic Sharia and whether the judicial or governmental Law is moving forward in it or not.

There came great and clear religious texts in honoring women and fulfilling their rights, such as the hadith of the Messenger of God(Our Prophed Muhammad, peace and blessings be upon him (“Fear God with regard to women,” as well as his saying, peace and blessings be upon him, “Treat women well.”

Guardianship is a heavy burden, a responsibility, not a dignity, and a trust that its owner will be held accountable for; as it compels the Guardian to take care of his Ward, her safe and carry out her businesses and affairs for her. We find that the public had placed boundaries for this guardianship, and they also came up with solutions for the women who have suffered from injustice or embarrassment as a result of abuse by their guardians specifically in giving them their rights.

According to the Shariah, guardianship is divided into several types:

  • The father’s guardianship over his daughter: His guardianship includes safeguarding, protecting, disciplining, spending on the daughter and getting her married; taking into account that marriage can only be performed with her permission.
  • The husband’s guardianship: It is also includes safeguarding, protecting, disciplining and spending on the wife, under the marriage contract which is described as a solemn covenant by God Almighty in his Quran “How could you take it back, when you have known each other, and they have taken from you a solemn covenant?” (Al-Nissa – Verse 21)
  • The guardianship over the incapable or those who lack capacity: It can be for the father, mother or brother in order to take care of the ward, whether for himself or his money.

Some of the customary procedures and practices we found are not necessarily in conformity with the Shariah; as we find that the Shariah has guaranteed and developed solutions for those who abuse the guardianship right or do not perform it according to its required legitimate manner.

If the father prevents his daughter from getting married, in this case the guardianship will be withdrawn from the father and given to either a grandfather or her brothers (respectively), or the judge; as stated in the Hadith of the Prophet (Peace Be Upon Him) that says: “The ruler is the guardian of the one who does not have a guardian”. Furthermore, if she was forced to get married, without her permission or consent, it is more likely that the person who shared the bed with her is corrupt; as the Prophet (Peace Be Upon Him) said: “The widow and the divorced woman shall not be married until their order is obtained, and the virgin shall not be married until her consent is obtained”.

As for some of the requirements placed by the Law that compel the woman to take the guardian’s permission to handle her own money, property and herself, they do not likely fall within the man’s guardianship, but are rather customary rules.

The person, who demands the forfeiture of this guardianship, must consider it before going into this matter, and he should also distinguish between the customary Laws and the legitimate rules stated in the Quran and Sunnah. It is not permissible to claim the forfeiture of a legitimate rule due to individual errors that the Shariah had guaranteed to resolve, and that some customary Laws have disrupted or complicated them as the original rule may not be forfeited due to misapplication.

Those who wish to forfeit this right should know that guardianship is only present to protect the woman’s right and her safeguard and ensure her stability.

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