The answer encompasses the following details:

Firstly: The validity of marriage contract without a guardian:

It may be helpful to recall the difference of opinions among scholars regarding the pillars of marriage:

• The Shāfi῾īs consider marriage to have five pillars: the husband, the wife, the formula, the guardian, and the two witnesses. Al-Ghazaī, from the Shāfi῾ī school, considers them four pillars: the formula, the witnesses, the subject (i.e., the wife), and the contracting party (i.e., the guardian).
• The Malikī school holds that marriage has five pillars: the guardian, the dower, the husband, the wife, and the formula.

However, Ad-Dardīr, from the Malikī school, considers them to be three: the guardian, the subject (i.e., both the husband and wife), and the formula, with the dower not considered a pillar but rather a condition, not affecting the validity of the marriage contract, as evidenced by the marriage of authorization.

• The Ḥanafī and some Ḥanbalī scholars hold that marriage contract has only one pillar, which is the offer and acceptance, with the spouses being essential to the offer and acceptance, necessitating two contracting parties, one representing the offer and the other the acceptance, as well as the formula and the witnesses for announcement.
• The Ḥanablī, in their second view, hold that the marriage contract has three pillars: both of the spouses, the offer and the acceptance.

The majority of scholars and companions agree that marriage is not valid without a guardian, and that a woman cannot conclude the marriage contract for herself or for someone else, or even delegate someone else to conclude the marriage contract for her, as evidenced by the opinions of ῾Umar, ῾Alī, Ibn Mas῾ūd, Ibn ῾Abbās, ῾Aā᾽ishah, Abū Hurayrah, among others, to the extent that Ibn al-Mundhir considered it to be a consensus among the companions. Among the followers who held this opinion is Al-Ḥasan, Sa῾īd ibn al-Musayyab, ath-Thawrī, Ibn al-Mubārak, Ibn Abī Laylā, Ibn Shabramah, and ᾽Isḥāq. Among the schools of thought that held the same view is Shāfi῾īṣ, Ḥanbalīs, Ẓāhirīs, Zaydīs, ᾽Ibāḍīs, and the narration of ᾽Ashhab from Mālik.

Mālik, in one narration, distinguishes between the honorable woman and the dishonorable woman (socially, not morally) and considers having a guardian a pillar only in the case of the honorable woman, not the dishonorable woman. (For the Mālikī school, there are further details that cannot be addressed in this space).

As for the Ḥanafīs, they have further details that I would like to mention (because some mention the applicable view without considering the difference of opinions in the same school of thought).

In one of the Ḥanafī’s views, a mature woman can contract a marriage for herself or for someone else, even though it is contrary to the preferred option, and the marriage contract is valid with the statement of the women.

They have another opinion that distinguishes between two cases: if she marries herself to an eligible man, the contract is valid, but if she marries herself to an ineligible man, her guardian has the right to annul the marriage contract.

There is another narration mentioned by Imām Al-Jaṣṣāṣ from Abī Yūsuf, which states that the matter is dependent, meaning that the contract is valid if either the guardian or the judge approves it sequentially, and if neither of them approves it, it is not valid.

There are other opinions, [in the Ḥanafī school], that have not been mentioned here, although they are sometimes suitable for issuing a fatwa.

Therefore, the majority of scholars require a guardian for marriage and set conditions for the guardian, including being male. The Ḥanafīs do not require a guardian for the validity of the marriage contract as a whole, but rather allow marriage with the statement of women, whether for themselves or for others. Each side has their own evidence. Even though the prevailing fatwa now and the current situation take the opinion of the Ḥanafīs, may Allāh have mercy and pleasure upon them.

Secondly: The validity of the contract with the testimony of a non-Muslim:

As mentioned earlier in the discussion about the pillars of the contract, some jurists (fuqahā᾽) consider witnesses to be a pillar of the marriage contract, while others do not consider it a pillar. Nevertheless, witnesses have an impact on the validity of the contract according to jurists, whether they consider testimony a pillar or not. Here is a detailed explanation of their opinions:

1. Marriage contract is not valid without the presence of two just witnesses at the time of the contract. This is the consensus of the majority of Ḥanafīs, Shāfi῾īs, and the prevalent opinion among Ḥanbalīs, as well as the opinion of Al-Ḥasan, ᾽Ibrāhīm, Qatādah, Ath-Thawrī, and Al-᾽Awzā῾ī.
2. Marriage contract is valid without witnesses, similar to contracts of sale, gift, and others. This opinion is a narration ascribed to the Ḥanbalīs and is the opinion of Ibn Mahdī, Abū Thawr, and Ibn Mundhir, and it is also the adopted opinion of the Imamiyyah school in case of the mature, mentally sound woman, not the minor.
3. Testimony in marriage is sometimes obligatory and sometimes recommended. It is recommended at the time of the contract and obligatory at consummation. If it occurs at the time of the contract, it suffices; otherwise, it becomes obligatory at consummation. This is the opinion of the Mālikī school, and in this way, it is an independent obligation and not a condition for the validity of the contract. Thus, it is recommended at the time of the contract and obligatory at consummation.
4. Ibn Ḥazm held that the contract is valid with either testimony or public announcement.

Each opinion has its evidence mentioned in the books of schools of thoughts and differences of opinions.

Returning to the issue of the testimony of a non-Muslim:

There is a consensus – as far as I know – that if both spouses are Muslims, the witnesses must also be Muslims, and the testimony of a non-Muslim is not valid in the marriage contract of Muslims. The only disagreement arises when the wife is from ᾽ahl al-kitāb (i.e., People of the Book), as the majority of Shāfi῾īs and Ḥanbalīs, along with our master Muḥammad ibn al-Ḥasan and Zufar ibn al-Hudhayl (may Allāh have mercy on them), stipulate that the witnesses must be Muslim even in this case.

The Great Imam (referring to Abū Ḥanḥfah) and with him Abū Yūsuf, Ya῾qūb, (may Allāh have mercy on him) held the opinion that the testimony of a dhimmī (non-Muslim subject of a Muslim state) is permissible on the condition that he is a subject of the Muslims.

It should be noted that the Ḥanafīs validated the marriage contract with the testimony of a man and two women, and Ash-Sha῾bī agreed with them, while the majority stipulated male witnesses.

As for the fatwa regarding the situation described in the question:

We say: The contract is affected by deficiencies that invalidate it according to the view of the majority of scholars due to the absence of a guardian and witnesses.

In my opinion, if this girl has not consummated the marriage, she should repeat the contract, with a minimum of two Muslim witnesses, and she can either contract it herself or authorize her mother to contract it on her behalf, according to the Ḥanafī school and those who follow them.

If she has consummated the marriage, we can rectify the contract through talfīq (mixing different legal opinions at one time), combining the Ḥanafī school with the Mālikī and Ẓāhirī schools, on the condition that the marriage be announced in the surrounding community.

After all, Allāh knows best.

Fatwa issued by Dr. Khālid Naṣr