Family Law: Marriage and Divorce in the Hanafi School

Al-Marghinani's treatment of marriage and divorce in Al-Hidayah reflects the Hanafi school's characteristic combination of textual grounding and systematic reasoning, producing a family law doctrine that is simultaneously principled and practically flexible — a quality that made it well-suited to governance across diverse societies for over a thousand years.

Marriage (nikah) in the Hanafi school is constituted by an offer (ijab) and acceptance (qabul) between two legally competent parties, in the presence of two Muslim witnesses of upright character. The mahr (dower) is obligatory but its specification is not a condition of validity — if unspecified, the mahr al-mithl (customary dower appropriate to the bride's social standing) becomes due automatically.

The most distinctive Hanafi position on marriage is that a sane, adult woman may conclude her own marriage contract without the involvement of a wali (guardian). This is based on the principle that legal competence in the Hanafi school implies the right to enter contracts, and marriage is a contract. Abu Hanifah argued that restricting a competent adult woman's right to contract her own marriage has no clear textual basis, since the hadith 'No marriage without a guardian' was interpreted by the school as addressing the guardian's role in preventing unsuitable matches rather than as an absolute condition of validity.

However, the Hanafi school qualifies this position significantly: if the woman marries someone unsuitable (not kafaa — not of equivalent social standing), the guardian retains the right to petition the court to dissolve the marriage. The concept of kafaah (suitability) in the Hanafi school is more elaborately defined than in other schools, encompassing lineage, religion, profession, and financial standing.

Divorce (talaq) in the Hanafi school is classified with great precision. Talaq al-Sunnah (the Sunnah method) is a single revocable divorce pronounced during a period of purity without intercourse having occurred since the last menstruation, followed by allowing the iddah to elapse. Talaq al-bid'ah (the innovated but legally valid method) includes pronouncing three divorces at once or two in a single period of purity — valid but sinful in the Hanafi view. The Hanafi school holds that three talaqs pronounced in one sitting constitute a final divorce (bain) — a view shared by the Maliki and Shafi'i schools but contested within the Hanbali tradition.

The iddah (waiting period) after divorce is three complete menstrual cycles for women who menstruate, three months for post-menopausal women and those who do not menstruate, and until delivery for pregnant women. The Hanafi school, unlike the Shafi'i school, counts the menstrual cycles of the iddah as the menstruations themselves rather than the clean periods between them, resulting in a different calculation of when the iddah is complete.

Khul' (woman-initiated dissolution) requires the husband's agreement in the Hanafi school, though the judge may compel a dissolution through faskh (judicial annulment) in cases of serious harm or failure of maintenance. The Hanafi school has well-developed rules for judicial annulment that gave Muslim women in historical Hanafi jurisdictions meaningful legal recourse within the system.

Al-Marghinani's family law chapters of Al-Hidayah shaped the personal status law of Muslims across the Ottoman, Mughal, and later colonial-era legal systems, and remain the basis for personal status law in many jurisdictions with significant Muslim populations today.