Tazwij (contracting a marriage, and who may contract it)

Tazwij is a contract that gives a man enjoyment of a woman and makes lawful her enjoyment of him in a lawful way; its ruling varies with the person. ^{1 2}

In the language, tazwij is joining one thing to another, and zawaj is the name for the contract. The Hanafis define it as a contract that gives a man enjoyment of a woman and makes lawful her enjoyment of him in a lawful way. ¹ It is obligatory or a duty when a man is sure he will fall into unlawful intercourse without it and can provide dower and maintenance; forbidden when he is sure he will not discharge its duties and will harm the woman; disliked when he fears injustice for lack of means; recommended for one of balanced nature; permitted in the view of the Shafi'is. ²

All agree that a free, adult, sane and sound man may contract his own marriage without anyone's leave, or appoint an agent, or contract for another by guardianship or agency. A minor or a madman is contracted by the guardian (father, grandfather or executor) by compulsion where it is in his interest. A profligate may not marry without his guardian's leave in the Malikis and Shafi'is view; the Hanafis and Hanbalis allow it. ²

Most jurists hold that an adult, sane, free and sound woman may not contract her own marriage; her guardian does, on the hadith that there is no marriage without a guardian, and on the report that a marriage made without a guardian's leave is void. She may not contract for another woman. ³ A virgin may be compelled by the guardian, though her leave is recommended. A previously married young woman is not married until she is adult and asks her leave, in the Shafi'i view. A previously married adult woman may not be married without her leave and consent, on the hadith that the previously married woman has more right over herself than her guardian. ³ The Hanafis do not allow compelling an adult woman, virgin or not; she contracts for herself with her consent, and the guardian is asked to act so that she is not thought forward. A minor girl may be compelled by her guardian, and a madwoman may be compelled by all. ⁴