1115 - Issue: He said: "And if her guardian is absent in a place where a letter cannot reach him, or it reaches him but he does not respond to it, then he who is more distant than him among her agnatic kin (asabat) may marry her (1). If there is none, then it is the authority (al-sultan)."

The discussion regarding this issue is in two sections:

The first: That if the closest [guardian] is absent for an interrupted absence, the more distant among her agnatic kin may marry her without the judge (al-hakim). This is the opinion of Abu Hanifah. Al-Shafi'i said: The judge shall marry her, because access to the marriage from the closest [guardian] has become impossible, while his guardianship remains, so the judge stands in his place, just as if he had prevented her (*adal). Also, because the more distant [guardian] is obstructed by the guardianship of the closest one, so it is not permissible for him to perform the marriage, just as if he were present. The evidence for the persistence of his guardianship is that if he were to perform the marriage from where he is, or if he were to appoint a proxy, it would be valid. We argue that the Prophet (peace and blessings of Allah be upon him) said: "The sultan is the guardian of those who have no guardian." (2) This woman has a guardian, so the sultan shall not be [her guardian] (3). Furthermore, because the marriage has become impossible to obtain from the closest [guardian], so the guardianship is established for the one who follows him from the agnatic kin, as if he were insane or dead. Also, because this is a state in which it is permissible for the marriage to be performed by someone other than the closest [guardian], so it is for the more distant one, like the primary case. And if the closest [guardian] prevents her (*adal), it is like our current issue.

The second section: Regarding the interrupted absence in which it is permissible for the more distant [guardian] to perform the marriage. According to the statement of al-Khiraqi, it is someone (4) to whom a letter cannot reach, or it reaches him but he does not respond to it, because (5) such a