Reclaiming Female Autonomy in the Islamic Marriage Contract

By V.A. Mohamad Ashrof, New Age Islam 8 September 2025 Across human cultures and religious traditions, the act of marriage stands as a profound covenant, a deeply personal commitment that reshapes individual lives and social landscapes. At the heart of this universal institution lies a fundamental question of agency: who has the authority to consent? Is the marital bond a contract forged by two autonomous individuals, or is it an arrangement mediated and authorized by familial or patriarchal structures? Within the rich and diverse legal tradition of Islam, this question finds its most potent expression in the debate over the role of the male guardian (wali) in the marriage (nikah) of an adult woman. For centuries, a powerful consensus across the Maliki, Shafi'i, and Hanbali schools has maintained that the guardian’s permission is an indispensable condition, rendering any marriage contracted without it null and void. This perspective, built primarily on a literalist reading of specific Prophetic traditions (hadith), has often positioned women as legal minors in the most significant contract of their lives. However, a formidable and historically resonant counter-narrative exists, championed by Imam Abu Hanifa (d. 767 CE) and his eponymous school of law. This paper will argue that the Hanafi position—that an adult, mentally competent woman (rashidah) possesses the full and unassailable right to contract her own marriage—is not merely an alternative legal ruling but a profound hermeneutic of liberation. It is an interpretive approach that unlocks the Quran’s progressive and humanistic core, revealing a divine mandate for female autonomy that is radical, textually grounded, and deeply resonant with the modern pursuit of justice and human dignity. Through a holistic hermeneutical analysis, we will demonstrate that this liberatory reading emerges directly from the Quran’s foundational principles. It is built upon the scripture’s unwavering recognition of women as complete moral and legal persons (ahliyyah); it is anchored in the direct linguistic evidence of verses that explicitly attribute the act of marriage to women themselves; and it is defended by a sophisticated interpretive methodology that prioritizes the Quran’s definitive statements over speculative ancillary texts. By reimagining the guardian’s role as one of compassionate advocacy rather than binding authority, the Hanafi vision offers an authentically Islamic pathway toward gender equity. This paper will explore this pathway, not as a departure from tradition, but as a journey into the very heart of the Quranic message—a message that champions the sacred worth and self-determination of every human being. The Quranic Conception of Female Personhood (Ahliyyah) Before delving into the specifics of the marriage contract, any liberatory hermeneutic must first establish its foundation in the scripture's broader vision of the human person. The Hanafi argument for female marital autonomy is not constructed on a single verse but is built upon the bedrock of the Quran’s consistent portrayal of woman as a complete legal and moral entity. In Islamic legal terminology, this is the concept of Ahliyyah—the legal capacity to both acquire rights and assume obligations. The Quran establishes this capacity for women in terms so unequivocal that it becomes the normative principle from which all other rulings must flow. The scripture addresses women directly as independent moral agents, equally accountable to God as men. A person deemed rational and mature enough to be held responsible for divine commands is a mukallaf. The Quran makes no gendered distinction in this primary status. Women are individually obligated to uphold the pillars of faith—prayer, fasting, charity, pilgrimage—and their salvation is contingent on their own deeds, not their relationship to a male relative. The powerful litany in Quran 33:35, which enumerates parallel virtues for "men who submit and women who submit, men who believe and women who believe...", serves as a divine charter of spiritual equality and individual accountability. Her relationship with the Divine is direct and unmediated. This theological personhood is translated into a tangible legal personhood most strikingly in the economic sphere. In a revolutionary departure from the norms of its time, the Quran grants women full and independent economic rights. It secures her absolute right to inherit (Quran 4:7, 4:11-12), to own property, and, most crucially, to earn and control her own wealth. The verse, “For men is a share of what they have earned, and for women is a share of what they have earned” (Quran 4:32), is a foundational text for female economic autonomy. All schools of Islamic law, without exception, recognize a woman’s full ownership (milkiyya) and right of disposition (tasarruf) over her property. She can buy, sell, invest, and enter into complex financial agreements, all without the permission of a husband, father, or brother. It is upon this universally accepted principle that the Hanafi jurists construct a powerful argument using analogical reasoning (qiyas), a core tool of Islamic legal methodology. The logic is as elegant as it is compelling. The original case (asl) is the woman’s established right to manage her financial affairs. The new case (far’) is her right to manage her marital affair. The effective legal cause (‘Illah) that grants a person the capacity to enter into binding contracts is not gender, but the possession of rationality (‘Aql) and mature judgment (Rushd). Since the law has already affirmed that an adult woman possesses the requisite Rushd to handle complex and high-stakes financial matters, it is a legal paradox to then claim she lacks the same Rushd to handle the personal matter of her marriage contract. The great Hanafi jurist Shams al-Din al-Sarakhsi articulated this with piercing clarity, arguing that it is fundamentally incoherent to entrust a woman with full capacity (Ahliyyah Al-Ada' Al-Kamilah) over her assets (Mal) but deny her capacity over her own person (nafs) (Al-Sarakhsi, 5:10). The marriage contract, while sacred, is at its core a civil contract (‘Aqd). To declare a woman competent to execute a commercial contract but incompetent to execute a personal one creates a legal schism that the Quranic vision of a unified human personality cannot sustain. This establishes the Quranic default: full legal agency for the adult woman. Any attempt to curtail this agency in the specific domain of marriage is an exception to a foundational rule. In any robust legal system, an exception bears the burden of proof. It must be justified by textual evidence so clear and definitive that it can override the scripture’s core humanistic principle of rational agency. The Hanafi argument is that not only does such overriding proof not exist in the Quran, but the Quran’s own language points in precisely the opposite direction. The Scripture Speaks Her Agency The Hanafi case for a woman’s right to self-contract her marriage is not an argument from silence. It is an argument from the explicit, affirmative language of the Quran itself. A close reading—a hermeneutic that pays scrupulous attention to grammar, syntax, and semantics—reveals a consistent pattern: The Quran attributes the act of Nikah directly to the woman, framing her as the primary agent of the contract. The most revealing, and contested, verse is Quran 2:232, which addresses the situation of a divorced woman seeking to remarry her former husband: “And when you have divorced women and they have fulfilled their term, do not prevent them (La Ta'duluhunna) from marrying (An Yankihna) their [former] husbands if they agree among themselves on an acceptable basis.” The majority view focuses on the prohibition “do not prevent them,” arguing that it is addressed to male guardians, thus proving their authority. The Hanafi reading, however, is more linguistically precise. The key verb, Yankihna (to marry), is in the feminine plural. Its grammatical subject is the women. The Quran literally states, "...do not prevent them from the act of marrying that they themselves perform." As the classical exegete Abu Bakr al-Jassas argued, one can only be "prevented" from performing an action that one has the primary right and ability to perform in the first place (Al-Jassas, 1:492). The verse presupposes the woman’s inherent capacity to contract. The role of the men/guardians is defined negatively: they are forbidden from exercising an unjust veto. The basis of the marriage is the mutual consent of the couple ("if they agree among themselves"), with the woman as an active, consenting party. The verse’s historical context (Sabab Al-Nuzul), which concerns the Prophet’s intervention to overrule a brother who was preventing his sister from remarrying, confirms that the verse was revealed specifically to dismantle a guardian’s veto power and champion the woman’s choice. It is a verse of liberation, not subjugation. Even more definitive is Quran 2:230, which discusses the legal state after a third divorce: “And if he has divorced her [for the third time], then she is not lawful to him afterward until she marries (Hatta Tankiha) another husband.” The language here is a model of legal precision. The verb Tankiha ("she marries") is singular feminine. The Quran ascribes the legal act necessary to dissolve the prohibition directly and solely to the woman. There is no mention of a guardian, no intermediary, no conditional clause. To insist that a wali is a necessary condition for this marriage to be valid is to add a stipulation to God’s law where God Himself stated none. In the principles of legal interpretation (Usul Al-Fiqh), adding a condition to a clear and definitive text (Nass Qat'i) is a hermeneutical violation. For Imam Abu Hanifa, this verse was a knockout proof (Nass Qat'i Fi Al-Bab), establishing a woman’s fundamental capacity to contract marriage (Al-Kasani, 2:248). A third pillar of evidence is found in Quran 2:234, concerning the agency of widows: “And when they [the widows] have fulfilled their term, then there is no blame upon you [men/guardians] for what they do with themselves (Ma Fa'alna Fi Anfusihinna) in an acceptable manner.” Again, the active agent of the verb Fa'alna ("they do") is the women. The phrase "what they do with themselves" is a broad grant of autonomy, with remarriage being its most obvious implication. The subsequent phrase, "there is no blame upon you," explicitly relieves the men of the community of both responsibility and authority. It is a divine command for the patriarchal structure to recede and allow the woman to manage her own affairs. Her agency is presented as the new norm. Together, these verses weave a coherent textual tapestry. The Quran does not merely omit the requirement of a guardian; it actively and repeatedly employs the language of female agency, portraying the woman as a rational, consenting individual who enters the covenant of marriage on her own terms. Reconciling the Hadith through a Quranic Lens The primary challenge to this liberatory reading comes from a small cluster of hadith, most famously, “There is no marriage except with a guardian” (La Nikaha Illa Bi Wali) (Tirmidhi 1101) and “Any woman who marries herself without the permission of her guardian, her marriage is void, void, void” (Tirmidhi 1102). The majority schools read these traditions literally, interpreting them as definitive legal pronouncements that override any general principles found in the Quran. The Hanafi response to this is not to dismiss the hadith, but to engage in a principled hermeneutical reconciliation, one that insists on the Quran as the ultimate arbiter and criterion (al-Furqan). This approach is grounded in a foundational principle of Islamic legal theory: a text of definitive authenticity (Qat'i Al-Thubut), like the Quran, cannot be contradicted or abrogated by a text of speculative authenticity (Zanni Al-Thubut), such as these Ahad (solitary-chain) hadith reports (Hallaq, p.82). The clear language of the Quran, which attributes marriage to women, cannot be overturned by a speculative report. Therefore, the hadith must be interpreted in a way that harmonizes with the Quran. The Hanafis achieve this through a brilliant and common interpretive method. They argue that the negation "La Nikaha" ("There is no marriage") does not refer to the legal validity (Sihha) of the contract but to its perfection and ideal nature (Kamal). The hadith is thus understood to mean, “There is no perfect, complete, or blessed marriage without a guardian.” This reading transforms the guardian from a legal requirement into a highly recommended (Mandub) element of the ideal marriage. This hermeneutic is not an ad-hoc invention. It is the standard interpretation applied to other hadiths, such as the famous statement, "There is no prayer for the neighbour of the mosque except in the mosque" (La Salata Li Jar Al-Masjid Illa Fi Al-Masjid). No jurist interprets this to mean a prayer at home is invalid; all agree it means the prayer is deficient in reward compared to the ideal congregational prayer. By applying this same consistent logic, the Hanafis resolve the apparent contradiction, honouring both the Quranic principle of agency and the Prophetic advice to involve family. This reading is further supported by other, equally authentic hadiths that champion female consent. When Khansa bint Khidam complained to the Prophet that her father had married her against her will, the Prophet immediately nullified the guardian’s contract, affirming that her will was supreme (Bukhari 5136). He also stated that a previously married woman (al-Ayyim) "has more right to her person than her guardian" (Muslim 1421), an explicit declaration of her superior agency. These traditions show a Prophet who actively empowered women against patriarchal overreach, aligning perfectly with the liberatory reading of the Quran. The Hanafi method, therefore, is not a rejection of tradition, but a sophisticated intra-textual dialogue that allows the compassionate and justice-oriented ethos of the Quran to illuminate the entire body of sacred texts. The Ecumenical Horizon: The Reimagined Guardian and Humanistic Parallels By removing the guardian’s consent as a condition of legal validity, the Hanafi position does not create a vision of atomistic individualism that discards family. Instead, it elevates the guardian's role from one of coercive authority to one of compassionate advocacy. His role, now mandub (recommended) instead of wajib (obligatory), becomes more meaningful. He is a counsellor, offering sincere advice (nasihah). He is a protector, advocating for her rights and a fair dower (mahr). He is a social anchor, ensuring the marriage is celebrated publicly and honoured by the community. In the Hanafi framework, if a woman contracts a marriage to a man who is clearly unsuitable (ghayr kufu'), the guardian retains the right to petition a judge to annul the marriage, providing a crucial check-and-balance that protects family honour and the woman’s long-term welfare without granting the guardian an arbitrary a priori veto. This model balances individual dignity with communal harmony. This Quranic vision of marital agency, as unlocked by Hanafi hermeneutics, becomes even more vivid when placed in a brief, ecumenical context. In the Hebrew Bible, while instances of female consent exist (e.g., Genesis 24:58), the dominant framework often portrays marriage as an arrangement between families, with women as assets. In the New Testament, while Paul champions a radical mutual love, his words are also used to uphold paternal authority over a daughter's marriage (1 Corinthians 7:36-38). The Quranic model, in this liberatory reading, can be seen as a deliberate legal reform, shifting the locus of the contract definitively from the family to the two consenting individuals. The Hanafi interpretation completes this trajectory, fully recognizing the woman as a legal subject with the capacity for self-determination. This comparative perspective is not for triumphalism, but for fostering a shared dialogue among traditions on how foundational texts can be read in ways that affirm human dignity and liberate individuals from oppressive patriarchal structures. The Unfolding of a Liberatory Promise The question of whether a woman can marry without a guardian is far more than a technicality of Islamic law. It is a question about the soul of the tradition: is it a system that ultimately sanctifies patriarchal control, or one that champions the God-given dignity and agency of every human being? This paper has argued that the Hanafi position represents a powerful hermeneutic of liberation, one that is deeply and authentically rooted in the foundational text of Islam. This liberatory reading is built upon the Quran’s unwavering assertion of a woman’s full legal and moral personhood. It is confirmed by the scripture’s own language, which consistently casts women as the active agents in their marital contracts. It is defended by a sophisticated legal methodology that harmonizes the hadith literature with the overriding authority of the Quran, transforming Prophetic advice from a legal chain into a guide for achieving the most blessed union. The result is a vision of marriage that honours both individual autonomy and familial support, recasting the guardian not as a gatekeeper, but as a compassionate advocate. This interpretation has profound contemporary relevance. It provides a robust, tradition-internal foundation for modern Muslim feminist scholarship. It offers a powerful legal precedent for family law reform, as seen in countries like Tunisia that have embraced this vision to legislate gender equality. Most importantly, it offers a pathway for millions of Muslims, men and women, who seek to live a faith that aligns with their deepest humanistic commitments to justice, equality, and self-determination. The Hanafi reading demonstrates that this commitment is not a break with Islam, but a deeper entry into its liberatory promise—a promise that continues to unfold with every just and compassionate reading of its sacred text. Bibliography Al-Jassas, Abu Bakr. Ahkam al-Qur'an. Beirut: Dar al-Kutub al-Ilmiyyah, 1994. Al-Kasani, 'Ala' al-Din. Bada'i' al-Sana'i' fi Tartib al-Shara'i'. Beirut: Dar al-Kutub al-Ilmiyyah, 1986. Al-Sarakhsi, Shams al-Din. Al-Mabsut. Beirut: Dar al-Ma'rifah, 1993. Hallaq, Wael B. A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh. Cambridge: Cambridge University Press, 1997. Sahih al-Bukhari. Compiled by Muhammad ibn Ismail al-Bukhari. Translated by M. Muhsin Khan, Riyadh: Dar-us-Salam Publications, 1997. Sahih Muslim. Compiled by Muslim ibn al-Hajjaj. Translated by Nasiruddin al-Khattab, Riyadh: Dar-us-Salam Publications, 2007. Sunan al-Tirmidhi. Compiled by Abu 'Isa Muhammad ibn 'Isa al-Tirmidhi. Translated by Abu Khaliyl, Riyadh: Darussalam, 2007. ----- V.A. Mohamad Ashrof is an independent Indian scholar specializing in Islamic humanism. With a deep commitment to advancing Quranic hermeneutics that prioritize human well-being, peace, and progress, his work aims to foster a just society, encourage critical thinking, and promote inclusive discourse and peaceful coexistence. He is dedicated to creating pathways for meaningful social change and intellectual growth through his scholarship. URL: https://www.newageislam.com/islam-women-feminism/female-autonomy-islamic-marriage/d/136750 New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism