This paper deals with a much disputed aspect of Islamic civil law, namely, the position of the wilayat (marriage guardianship) and the legal capacity of Muslim women to contract marriage in accordance with the rules laid down in the Qur'an and the Sunnah or the Prophetic Tradition. The purpose of this paper is to elucidate that Muslim women are conceded the right to contract a marriage at their own discretion even sans the consent of their awliya or agnatic guardians. It will take into consideration the views of the two main schools of Sunni Muslim jurisprudence, namely, the Hanafi and the Shafi'i in this matter and examine their respective positions from an Islamic standpoint.
Marriage in Islam could be defined as a civil contract entered into by a contract of offer or proposal (ijab) and acceptance (qabul) by the mutual consent of the bridegroom and the guardian or agent (wali) of the bride in the presence of two adult male witnesses. The wali or marriage guardian is, in the first instance, the father and in the second instance, the paternal grandfather, according to both the Hanafi and Shafi'i schools. This is followed by other close male relatives on the agnatic side, depending on the position of the madhhabs (schools of law) regarding the matter. According to the Hanafis the right of jabr (i.e. the power to impose the status of marriage on a ward) applies to all minors, whether male or female, and no sooner they attain puberty (bulughiyyah), which in the absence of evidence to the contrary is fixed by law at 15 years, they are freed from their wali's right of jabr and may validly enter into a marriage contract at their own discretion.