Precaution in the Case of the Virgin Young Lady
There are some precautions for the virgin in view of her lack of experience, or the possibility that she may be duped or cheated. From this perspective, her seeking the permission of her father counts as a way to protect the young lady in her marriage relation with any man. Moreover, because of this there is no requirement that permission be sought from the father or the grandfather, if she is no longer a virgin.
It is likely that some people may not see the issue as being restricted to this aspect, but as including respect for her father or grandfather, according to the traditions of Mediterranean Islamic societies. Since the girl is not married except by the permission of her father or grandfather, it would seem that the issue includes social respect for the father or grandfather, who must have a say in the affairs of his daughter. The premise is that a bad position for her reflects badly on her father, and a good position for her reflects well on him.
From here, the jurists do not feel that if the father and grandfather is dead, anyone's permission should be sought, indicating that the matter is not one of her inability to exercise judgment, but is related to a precautionary measure for the future of the girl, or to showing respect to the father and grandfather.
There is another view which says that it is not obligatory for the girl to seek the permission of her father or grandfather regarding her spouse, that she is free to make this decision.
The Independent Young Woman
As for my own view, the girl is independent regarding her personal affairs and property, if she normally exercises good judgment.
Why, then, is the matter restricted to a woman and not a man?
This is because the man in society may have more experience in matters of marriage and a general understanding of marriage. He has more opportunity to do so than the young woman.
This is one angle. From another angle, the matter may be explained on the basis that the man, if he is deceived in marriage, has the right to issue a divorce; whereas Islam has not given the woman the right of divorce. This means that the woman must be cautious not to fall into a situation from which she cannot escape except with great difficulty.
The Young Lady Who May Look After Her Affairs (Raashida)
How may we determine the age of maturity and guidance-meaning when can the young woman look after her own affairs?
There is no specific age, for we may find a responsible young lady who may be only eleven or twelve years old, and we may find a girl who is in her twenties and unable to conduct her own affairs.
What is the communal understanding of responsible for conducting her own affairs?
The communal understanding stems from the mental level of the young man and young lady have which enables them to look after their financial affairs in a way that is not considered as sign of foolish behavior.
Exhorting to Good (Al-Amr Bi-l-Maruf) is Different From Guardianship
In a situation where the young lady is married, does her father's guardianship over her terminate?
Basically, there is no guardianship of the father over his daughter once she attains puberty and can conduct her own affairs. But as we have said, it is simply to protect her in the issue of marriage. Except for this, the father has no guardianship in any other area. If we imagine that he has a daughter, then he has no guardianship over her education, her jihad, and her financial conduct-except when she becomes corrupt. In that case, it is not an issue of the father in relation to his daughter, but one of a believer with respect to a believing woman in that area where the good must be commanded and evil forbidden (al-amr bi-l-maruf wa-n-nahi ani-l-munkar). Therefore, the father has no guardianship over his daughter, either before or after marriage.
Is it not the father's right, for example, to force his daughter to observe hijab?
Not in the context of being a father or a husband, but in the context of his being a Muslim-ordering that which is right and forbidding that which is wrong. When a young lady obeys her father by observing the hijab, she does not obey him because he is her father or that fatherhood dictates this, but rather because he exhorts and guides. It must be realized that the process of coercion may create negative repercussions which may create a greater problem than the one being solved. The Shariah guidelines then must be followed when commanding the good and forbidding the evil.
Confusion Between Custom and Shariah Law
Custom is sometimes given precedence over Shariah law. However, it cannot be given precedence over Shariah in any situation. The role of custom is based on the understanding drawn from the religious texts of the Quran and Sunna in this area. The matter may be one of natural difference in object per se as opposed to difference in a perceived custom. For example, there is a fatwa which states that: "It is not permitted for a man to wear women's dress, nor is it permitted for a woman to wear men's clothing." If we assume that a certain dress was initially male garb, and its usage has become so widespread that it is an item for both sexes (such as trousers), then the precedence of customary practice with respect to the changed status of this garb has changed the issue. When a woman today wears trousers, she is not seen as imitating a man, since the trousers are worn by both sexes.
Custom may be applied to the change in particular aspects of the scope of a Shariah ruling, but may not change the Shariah ruling itself as long as the general scope of the subject holds.
