Islamic Fiqh > Marriage and family > Wilaya (marital guardianship) and kafa'a > First case: the minor (saghira)
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Updated on 27 September 2026 at 3:52 AM
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How is a woman's marriage contracted according to her condition? This article follows the fiqh compendium pages on the wilaya of compulsion, that is, a marriage concluded for a woman without her consent: the minor (saghira), when the minor's consummation becomes permitted, the ijbar exercised by the father or by another wali (marriage guardian), the option of annulment at puberty (khiyar al-bulugh), the adult virgin (bikr), the previously married woman (thayyib), the virgin whose virginity has disappeared, how consent is given, and the guardian's obstruction ('adl).
Each opinion is attributed to what the source page attributes it to, whether a school or a named scholar, and the references (takhrij) are those of the pages: a book cited with volume and page, or the hadith number in the cited collection.
The jurists of the four madhhabs and the other scholars agree on the validity of the minor's marriage, based on the Qur'an, the Sunna, consensus and the practice of the Muslims.
The first verse invoked is that of the waiting period ('idda):
And those of your women who no longer expect menstruation: if you doubt, their waiting period is three months. And those who have not yet menstruated.
Surah at-Talaq 65-4
The page explains the argument: Allah fixed for those who do not menstruate a waiting period of three months; such a period only exists for divorce within a marriage or its dissolution, which proves that the minor marries and divorces.
The second verse is interpreted by Aisha as referring to the marriage of orphans (reference: Tabyin al-Haqa'iq, 2/122):
If you fear that you will not deal justly with the orphans, marry those women who seem good to you.
Surah an-Nisa 4-3
The Sunna: the Prophet's marriage to Aisha. The two collections (al-Bukhari and Muslim) narrate from Aisha:
The Prophet married me when I was six years old. We came to Madina and stayed with Banu al-Harith ibn Khazraj. I fell ill and my hair fell out, then it grew back. My mother Umm Ruman came to me while I was on a swing with some playmates.
She called me, and I came to her without knowing what she wanted of me. She took my hand and stopped me at the door of the house, while I was out of breath. She took some water, wiped my face and head with it, then brought me into the house where women of the Ansar were gathered. They said: with goodness, blessing, and good omen.
She handed me over to them, and they made me ready; no anxiety touched me until the Messenger of Allah came in the late morning. My mother handed me over to him, and on that day I was nine years old.
reported by al-Bukhari (3681) and Muslim (1422)
In the narration of Urwa and al-Aswad from Aisha: the Messenger of Allah married her at six, consummated the marriage at nine, and died when she was eighteen (reported by al-Bukhari (3683) and Muslim (1422)).
Ibn Batal reports from al-Muhallab the scholars' agreement on the father's right to marry off his minor daughter, including one not of age for consummation, based on the general meaning of Surah at-Talaq 65-4; he adds that al-Bukhari intended, through this chapter, the refutation of Ibn Shubruma, of whom at-Tahawi reports that he said: the marriage of minors by fathers is not permitted, and they have the choice at maturity; an opinion no jurist followed and which deserves no attention, due to its singularity and its contradiction with the Book and the Sunna (Sharh Sahih al-Bukhari, 7/247). Al-Nawawi likewise writes that the Muslims agreed on the permissibility of marrying off one's minor virgin daughter, based on this hadith (Sharh Sahih Muslim, 9/206).
The practice of the Companions, reported by al-Sarakhsi (al-Mabsut, 4/212): Qudama ibn Maz'un married the daughter of al-Zubayr on the very day of her birth, saying: if I die, she is the best of my inheritance, and if I live, she is the daughter of al-Zubayr; Ubayd Allah ibn Umar married his minor daughter to Urwa ibn al-Zubayr; Urwa married his brother's daughter while both were minors; a man gave his minor daughter to Abd Allah ibn al-Hasan, and Ali approved it; the wife of Abd Allah ibn Mas'ud married her minor daughter to al-Musayyib ibn Nakhba, and Abd Allah approved it.
Ibn al-Mundhir (al-Ishraf, 5/19) reports that Abu Bakr married Aisha to the Messenger of Allah when she was seven, then cites the agreement of the people of knowledge: the marriage of a minor virgin daughter by her father to a kuf' (a suitor of equivalent standing) is permitted; among those who say this are Malik, al-Thawri, al-Layth ibn Sa'd, al-Awza'i, Ubayd Allah ibn al-Hasan, al-Shafi'i, Ahmad, Ishaq, Abu Ubayd, Abu Thawr and the people of opinion, their proof being the hadith of Aisha.
Ibn Qudama (al-Mughni, 7/30-31) writes that there is no disagreement over the minor virgin, and cites Ibn al-Mundhir: the agreement of every known scholar, including the right to marry her despite her aversion and refusal; Surah at-Talaq 65-4 proves it, and the minor has no consent to be considered; Aisha said: he married me at six and consummated the marriage at nine (a hadith agreed upon, reported by both), and she was clearly not of those whose consent counts. Al-Athram reports that Qudama ibn Maz'un married the daughter of al-Zubayr as soon as she breathed, at her birth, and that Ali married his daughter Umm Kulthum, still a minor, to Umar ibn al-Khattab. Ibn al-Qattan al-Fasi concludes: they agreed that the father may marry off his minor daughter without asking her consent (al-Iqna', 3/1165, no. 2144).
Abu Bakr al-Jassas (Ahkam al-Qur'an, 2/346): the verse also proves the father's right, for he is the nearest of guardians; the early and later jurists of the major cities have no known disagreement over this permission, except a narration from Bishr ibn al-Walid from Ibn Shubruma, which is also the madhhab of al-Asamm; this madhhab is refuted by all the foregoing, including Surah at-Talaq 65-4, which declares valid the divorce of the non-menstruating minor although divorce only occurs within a valid marriage. The report of Aisha's marriage at six by Abu Bakr carries two meanings: the permissibility of the minor's marriage by her father, and the absence of an option of choice at maturity, for the Prophet did not offer her the choice after she matured.
Al-Kiya al-Harrasi adds a consideration of interest: the marriage of the minor is not far from benefit, so much so that custom persisted and the generality upheld it; its aim is affection, and when a wife is attached from childhood, without knowing other men or desire, love becomes deeply rooted between the two; hence the saying: love is only for the first beloved.
Most jurists hold that the minor's consummation is not permitted as long as she cannot bear intercourse.
Ibn Batal (Sharh Sahih al-Bukhari, 7/247-248) reports the disagreement over the timing: a group, including Ahmad ibn Hanbal and Abu Ubayd, sets it at nine years, following the hadith of Aisha. Abu Hanifa retains the age of nine, but if she has reached it without the capacity for intercourse, her family may prevent him, and if she has not reached nine but is strong, they may not prevent her from her husband. Malik used to say: no maintenance (nafaqa) for the minor until she reaches maturity and the capacity for intercourse. Al-Shafi'i: if she is approaching maturity and is robust, capable of intercourse, the husband may consummate the marriage; otherwise her family prevents him until she can bear it.
Al-Nawawi (Sharh Sahih Muslim, 9/206): if the husband and the guardian agree on a time that poses no danger to the minor, it is followed; otherwise Ahmad and Abu Ubayd say she is compelled at nine years, and no other; Malik, al-Shafi'i and Abu Hanifa say the limit is the capacity for intercourse, which varies from one person to another and cannot be fixed by an age, and this is the correct view; the hadith of Aisha fixes no limit, neither forbidding consummation for one capable of it before nine nor allowing it for one incapable after nine; al-Dawudi notes that Aisha had attained a fine puberty.
The Hanafis (al-Fatawa al-Hindiyya, following al-Bahr al-Ra'iq) report two views: no consummation before maturity, or after nine years; but most of the shaykhs hold that age has no bearing here: only the physical constitution matters; if she is large, robust, capable of intercourse and without risk of illness from it, the husband may consummate the marriage even before nine years; if she is thin, frail, incapable of intercourse, with risk of illness, it is not permitted even if she is older; and this is the correct view.
In litigation before the judge (al-Fatawa al-Hindiyya, 1/287, with al-Muhit al-Burhani 3/139 and al-Bahr al-Ra'iq 3/128): when the husband has paid the mahr (dower) and asks the qadi to order the father to hand over the wife, and the father says she is a child incapable of intercourse while the husband claims the opposite: if she can go out, she is brought before the judge, who orders the handover if she is fit, otherwise not; if she does not go out, the judge assigns trusted women to examine her: if they attest that she bears intercourse, he orders the father to hand her over, otherwise he orders nothing.
Ijbar (the right to conclude the marriage for her despite her refusal): if the girl is a minor, two situations arise: her father compels her, or someone other than him.
First situation: the jurists of the four madhhabs agree on the father's right to compel his minor daughter into marriage.
Ibn Qudama (al-Mughni, 7/30-31): there is no disagreement over the minor virgin; he cites Ibn al-Mundhir: the agreement of all known scholars, including the right to marry her despite her aversion and refusal, Surah at-Talaq 65-4 proving that she marries and divorces with no consent to be considered, and the hadith of Aisha (agreed upon); al-Athram reports the case of Qudama and the daughter of al-Zubayr, and that of Ali marrying his minor daughter Umm Kulthum to Umar ibn al-Khattab. Ibn al-Qattan al-Fasi: agreement on marrying the minor without asking her consent (al-Iqna', 3/1165, no. 2144).
Ibn Abd al-Barr (al-Tamhid, 19/98; al-Istidhkar, 5/400-401): the scholars agreed that the father marries off his minor daughter without consulting her, by the marriage of the Messenger of Allah to Aisha at six; only the Iraqis say she has the choice at maturity, which the Hijazis rejected: no proof, in my view, belongs to whoever gives her the choice. Al-Mawardi (al-Hawi al-Kabir, 9/52): the father compels the minor virgin into marriage without taking her choice into account, and the contract binds her in her minority as after maturity. Ibn Hubayra (al-Ifsah, 2/123): they agreed on this, except the narration of Ahmad already mentioned: at nine years, no marriage without her consent, for every guardian, father or other.
The jurists disagree: may a wali other than the father compel the minor into marriage?
The Shafi'is: the grandfather, at any degree, may compel the minor into marriage and marry her off, and the contract binds her in her minority as after it; the grandfather holds the wilaya (guardianship) and the right of asaba (residuary heirship), so the ijbar of the virgin is his as it is the father's. Surah al-Hajj 22-78 calls him father:
The religion of your father Ibrahim.
Surah al-Hajj 22-78
Allah called him father, subjecting him to the father's ruling although he differs from him in name; and since the grandfather follows the father in guardianship, he is stronger than the one the father excludes; and when the grandfather was made equal to the father in guardianship over her property, he was made equal in guardianship over her marriage: by this he is distinguished from the other residuary heirs.
The other guardians, in the absence of the father and grandfather, may not compel the minor into marriage. The proof is the hadith that al-Darqutni reports in his Sunan (3546), from Muhammad ibn Ishaq, from Nafi', from Ibn Umar:
My maternal uncle Qudama ibn Maz'un married the daughter of his brother Uthman ibn Maz'un. Al-Mughira ibn Shu'ba came to propose to her through her mother and courted her, boasting of his wealth. The matter was brought to the Prophet, and Qudama said: Messenger of Allah, she is my brother's daughter and I am her father's executor: I have not neglected her and I married her to one whose merit and kinship I know. The Messenger of Allah said: she is an orphan, and the orphan has more right to herself than anyone.
She was taken from me and al-Mughira ibn Shu'ba married her.
reported by al-Darqutni in his Sunan (3546)
The Prophet thus did not leave the orphan's marriage to the testamentary guardian before her maturity. The page then reports the Shafi'i analogy (qiyas): whoever has no right to receive her dower has no right to conclude her marriage, like the paternal uncle with the previously married woman; what is established for the father over the minor without his taking charge of her is exclusive to him among the residuary heirs, like guardianship of property; and marriage, so long as it is not concluded, is invalid like that of a woman in her waiting period, and it is not concluded by arbitrary choice, by analogy with the previously married woman's option. As for the verse, it applies to marriage before orphanhood or to the grandfather's marriage, orphanhood occurring by the father's death even if the grandfather lives.
The Malikis and the Hanbalis (in the madhhab): a wali other than the father does not compel the minor, based on the same hadith of Qudama (al-Darqutni, 3546), the ruling being tied to orphanhood and the marriage annulled; and based on the hadith of Ibn Abbas:
The wali has no say over the previously married woman; the orphan is consulted, and her silence is her consent.
authentic hadith, reported by Abu Dawud (2100), an-Nasa'i (3263), Ahmad (3087) and Ibn Hibban in his Sahih (4089)
A general hadith: the minor is not of those who have a consent, so no contract is valid over her before maturity; and since the wali other than the father cannot dispose of her property, the same applies to her person.
The Malikis add their own reasons: whoever cannot dispose of her person cannot compel her into marriage, like a stranger; whoever has no right to compel her after maturity has none before, like the maternal uncle; she is not his offspring, like the maternal uncle; the grandfather is a residuary heir excluded by the father like the brother; guardianship passes by succession, it is not acquired from the outset, like other guardianships (grouped references: al-Ishraf, 3/291-293, no. 1126; al-Ma'una, 1/477-478; al-Tamhid, 19/102-103; al-Istidhkar, 5/41; Sharh Sahih al-Bukhari, 7/173; al-Taj wa-l-Iklil, 2/492-493; Sharh Mukhtasar Khalil, 3/176, 180; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/16-17; Tahbir al-Mukhtasar, 2/547, 551).
The note of the page also reports Ibn Abd al-Barr (al-Kafi, 1/232): the guardian does not marry the orphan until she reaches maturity and the choice; if he has married her and she refuses at maturity, the marriage is annulled in his view; he reports the exception of pressing need (a girl of about ten, with a comparable suitor), then three narrations from Malik: the marriage is void and annulled even if she has grown before consummation; the marriage is valid with an option at maturity; the marriage stands in case of need and poverty with a comparable suitor. Ibn al-Hajib (Jami' al-Ummahat, 256): Malik retracted to the prohibition of marrying the orphan; the later scholars permit it if corruption is feared, and on the well-known view it is annulled even if she has grown before consummation; and whoever marries the virgin orphan must inform her that her silence is consent and approval: if she remains silent knowing this, the marriage binds her; if she shows aversion, weeps, leaves or displays what indicates dislike of the marriage, she is not married despite it.
The Hanbalis: a wali other than the father has neither the ijbar of the adult woman nor the marriage of the minor, grandfather or otherwise; based on the Prophet's words: the orphan is consulted about herself; if she is silent, that is her consent; if she refuses, no force is exercised over her (reported by Abu Dawud and an-Nasa'i); and from Ibn Umar: she is an orphan, and she is not married without her consent; the orphan being the minor whose father has died, the text indicates by way of alert that the adult too is not married without consent; but the child has no consent by agreement, so her marriage is impossible, the condition being absent.
Ibn Qudama (al-Mughni, 7/32-33): when the girl reaches nine years, two narrations. The first: she is like one who has not reached nine, stated explicitly in the narration of al-Athram, and this is the view of Malik, al-Shafi'i, Abu Hanifa and the other jurists: the consent of a nine-year-old girl does not count, as in other dispositions. The second: she is judged like the adult, stated explicitly in the narration of Ibn Mansur, by the implication of the verse and the indication of the report on the consulted orphan whose consent is required, which excludes those below her; Ahmad reported through his chain from Aisha: when the girl reaches nine years, she is a woman; and al-Qadi reported from Ibn Umar, from the Prophet, an equivalent meaning: she has then reached an age when menstruation becomes possible and a need for marriage arises, so her marriage is permitted like the adult's. On this basis, if she is married and then matures, she has no option of choice, like the married adult.
The page reports the following account: Umar proposed to Umm Kulthum, the daughter of Abu Bakr then aged under ten, inquiring through Aisha; the girl refused; Talha ibn Ubayd Allah married her, and no one objected: proof of their agreement on the validity of the minor's marriage through the guardianship of one other than her father.
The Hanafis, and Ahmad in one narration, allow a wali other than the father and grandfather to marry off the minor boy and girl, based on Surah an-Nisa 4-3, whose meaning is the marriage of orphans and which only makes sense if their marriage is permitted; Aisha explained this verse and that of Surah an-Nisa 4-127: the orphan in the care of her wali who covets her wealth and beauty and is not fair concerning her dower; the first verse forbids marrying them without paying the highest dower, the second orders marrying the orphans or marrying them to others: proof of the permissibility of marrying the orphan. The Messenger of Allah married the daughter of his uncle Hamza to Umar ibn Abi Salama while she was a minor, and the reports from Umar, Ali, Abd Allah ibn Mas'ud, Ibn Umar and Abu Hurayra on this permission are well known.
The page's reasoning: this wali is her guardian after maturity, so he is her guardian in minority like the father and grandfather, the effect of maturity in ending guardianship grounding this extension; the difference from property is that property is exposed to hidden seizures and this wali is deficient in compassion, whereas harm to the person, namely deficiency of dower or of equivalence of standing, is apparent and reparable; and guardianship of property need not be established for these walis, the executor provides for it and the father may appoint one (al-Mabsut, 4/214). Al-Sarakhsi also reports from Abu al-Khattab that Abd Allah transmitted from his father the view of Abu Hanifa, based on the general meaning of Surah an-Nisa 4-3 and the hadith: no orphanhood after emission; Urwa had asked Aisha to explain the verse and she answered in the same sense, an agreed-upon hadith (al-Mughni, 7/32; Sharh al-Zurkani, 2/344).
Ibn Rushd (Bidayat al-Mujtahid, 2/5-6) summarizes: al-Shafi'i: only the grandfather and the father marry off the minor; Malik: the father alone, or the one he has authorized with the choice of the husband, unless harm and corruption are feared; Abu Hanifa: every guardian, and she has the choice at maturity. The cause of the disagreement: the generality of the hadith, the virgin is consulted and her consent is her silence, confronting the analogy: some attached all the guardians to the father; others, the grandfather alone, for he is in the sense of the father, being the higher father; others granted nothing beyond the father, the father's advantage coming from the tenderness and mercy the Law specified in him, or from what the Law specified for him; this is Malik's view, except in case of necessity. The Hanafis rely on Surah an-Nisa 4-3, the orphan not designating the adult.
The second group answers that the name of orphan may apply to the adult, since the consulted orphan is of those who have a consent, hence the adult; and those who forbid marriage by the non-father invoke the Prophet's words: the orphan is consulted about herself (reported by Abu Dawud (2093), al-Nasa'i (3270) and Ahmad (19674)), the minor not being of those consulted by agreement; the former answer that this ruling concerns the orphan capable of consent, the minor not being mentioned.
The jurists disagree over the minor, boy or girl, married by his or her father: does he or she have the option of annulment at maturity?
The majority of jurists, Hanafis, Malikis, Shafi'is and Hanbalis, say no. The page's proofs: the two sahih collections report that Abu Bakr married his daughter Aisha while she was a minor, and the Messenger of Allah did not offer her the choice; if there had been an option, he would have given it, as with the verse of choice, Surah al-Ahzab 33-28, where he said to her: I propose a matter to you, say nothing about it until you consult your parents; then he recited the verse and she said: should I consult my parents about this? I choose Allah and His Messenger; his not offering her the choice here proves that the minor married by her father has no option at maturity.
Al-Sarakhsi (al-Mabsut, 4/213) reports that Ibn Sima'a argued by analogy and istihsan (juristic preference): the father concludes a contract obliging the handing over of the person after his guardianship ends, so she should have the option, as if her brother had married her; the answer: the hadith takes precedence over analogy; the father overflows with compassion and looks out for her more than for himself, his guardianship being complete over property and person, so there is no option in his contract; and marriage is not like hiring: hiring out a person is not an interest established by the Law but a hardship, and the minor's guardianship, established for his upbringing and training, ends at maturity, hence the option established in hiring.
Ibn Abd al-Barr: the scholars agreed, except the Iraqis who give the choice at maturity, which the Hijazis rejected. Abu Qurra reports his question to Malik: does the Prophet's saying, the virgin is asked her consent about herself, apply to the father? He replied: no, it is not intended for the father but for someone other than him; the marriage of minors by their fathers is permitted, male or female, and no other guardian marries off the minor girl (al-Tamhid, 19/98). Al-Nawawi (Sharh Sahih Muslim, 9/206): the Muslims agreed on marrying the minor virgin daughter; at maturity there is no option according to Malik, al-Shafi'i and the jurists of the Hijaz; the people of Iraq say she has the option at maturity.
If someone other than the father married her, the marriage is not permitted by the majority of scholars, and the grandfather is the subject of the disagreement of the Malikis and Hanbalis with the Shafi'is; in Abu Hanifa's view, all the guardians may marry, and the option is established at maturity.
The jurists disagree: may the father compel the sane adult virgin into marriage without her consent, like the minor? Or is the marriage only valid with her consent?
The majority of jurists, Malikis, Shafi'is and Hanbalis in the madhhab: the father may compel his adult virgin daughter into marriage if she is married to a kuf' and there is no evident harm; ijbar means he concludes the contract, which takes effect whether she wills or not. The page's reasons: whoever has the right to marry her in her minority has the right to marry her in her maturity as long as she is a virgin, the operative cause ('illa) being virginity; the father is not like the other guardians, since he may dispose of her property, looks out for her and is not suspected concerning her; if her consent were required at maturity, her marriage in minority would be forbidden too, like the non-father who, unable to marry the adult virgin without her consent, cannot marry her as a minor either; and since the scholars agree that the father marries her as a minor though she has no consent, it follows that he marries her as an adult without consent as long as she is a virgin: the distinction established by the hadith is only between the previously married and the virgin.
A second argument: the Prophet's saying, the orphan is consulted about herself; if she is silent, she has given her consent; if she refuses, she is not compelled (authentic hadith: Abu Dawud (2093), al-Nasa'i (3270), Ahmad (19674)): the term orphan indicates that one who is not an orphan, that is, the virgin who has her father, is not consulted and marries without consent; and the saying, the previously married woman has more right to herself, distinguishes by the name of orphan: if she is a previously married woman, the father must consult her and her marriage without consent is not permitted; if she is a virgin, ijbar is permitted. And the saying, the previously married woman has more right to herself than her wali, indicates that the virgin's wali has more right over her than she herself.
The page specifies: the Messenger of Allah made the virgin and the previously married woman equal in being consulted about themselves, distinguishing them only in the answer (consent): he made the virgin's answer consent by silence, due to her shyness, and her refusal by speech, for there is no shyness in refusal as there is in consent; and he did not require the previously married woman to be silent for consent, her shyness having vanished after her first marriage. Muslim (1421) reports:
The woman without a husband has more right to herself than her wali, and the virgin is asked her consent, and her consent is her silence.
reported by Muslim (1421)
And in another version: the previously married woman has more right to herself than her wali, and the virgin is consulted, and her consent is her silence. The hadith thus establishes consultation (isti'mar); asking her consent is recommended, not obligatory, for the person's ease: otherwise the virgin would have more right to herself than her wali, like the previously married woman; and from Ibn Umar the Prophet said: instruct your women about their daughters (a weak hadith: Abu Dawud (2095), Ahmad (4905)).
The page adds the Maliki reasons: the virgin need not speak for her contract, being capable, like the minor; whoever has the right to receive her dower after her consent may conclude her contract without her consent, as with the slave girl and the minor virgin; what is due to guardianship in the minor's marriage is due in the adult's, by analogy with the right to demand equivalence of standing (kafa'a); if the father had no ijbar at maturity, he could not deprive her of marriage in her minority; and the father's guardianship over her property persists after maturity among the Malikis, marriage resting upon it; any guardianship that allows marrying the minor allows marrying the adult, like the guardianship of kafa'a (grouped references: al-Tamhid, 19/98, 102; al-Istidhkar, 5/401, 403; Sharh Sahih al-Bukhari, 7/252, 254; al-Ishraf, 3/287-289, no.
1123; al-Hawi al-Kabir, 9/52-53; al-Najm al-Wahhaj, 7/70-71; al-Iqna', 2/415; Mughni al-Muhtaj, 4/250-251; al-Dibaj, 3/196; al-Mughni, 7/31; Sharh al-Zurkani, 2/341-342; al-Mubdi', 7/23; al-Insaf, 8/55; Kashshaf al-Qina', 5/44; Manar al-Sabil, 2/552-553).
The Shafi'is set eight conditions for the validity of the father's marriage of his adult daughter without her consent: no open enmity between him and her; no enmity between her and the husband, even hidden; the husband must be a kuf'; he must pay the mahr mithl (the dower of her peers); in the country's circulating currency; he must not be insolvent; he must not be among those whose companionship would harm her, such as a blind man or a senile old man; and the obligatory pilgrimage must not already be due to her, since the husband might prevent her, the hajj being performed with delay while she has an interest in discharging it early (al-Bayan, 9/179-181; al-Hawi al-Kabir, 9/52-53; Rawdat al-Talibin, 4/693-694; al-Najm al-Wahhaj, 7/70-71; al-Iqna', 2/415; Mughni al-Muhtaj, 4/250-251; Tuhfat al-Muhtaj, 8/585-587; al-Dibaj, 3/196).
If the father marries her to a non-kuf', the marriage is invalid according to al-Shafi'i and according to Ahmad in one narration: he has no right to marry her to a non-kuf', so the contract does not stand, like selling her property without benefit or need or below its value, the father being her legal representative whom the Law does not allow to dispose without benefit for her, like an agent. The second narration of Ahmad: the marriage is valid, the defect being in the object of the contract without preventing validity, like buying defective goods whose defect is unknown.
Ibn Qudama (al-Mughni, 7/31-32) holds two possibilities: the marriage is not valid if the father knows the husband is not a kuf', and valid if he does not know; if he knows, contracting is forbidden to him and the contract is void; it is also possible that the adult's marriage is valid: the harm can be remedied by granting her the option, she annuls if she dislikes it, otherwise it counts as acceptance; if she is an adult, she has the option, not her father if he was informed, for he abandoned his right by his consent; if she is a minor, annulment belongs to him and is not removed by his consent, for he annuls to protect her and her own right is not lost by her consent; another possibility: no annulment, but blocking consummation until her maturity and her choice; and if there is a wali other than the father, she has the annulment. In both narrations, he may not marry her to a non-kuf' nor to a defective man, Allah having established him in her place as a watcher over her interest and disposing on her behalf due to her incapacity to dispose of herself.
The second view: the Hanafis, al-Thawri, al-Awza'i, al-Hasan ibn Hayy, Abu Thawr, Abu Ubayd, Ahmad in one narration preferred by Abu Bakr ibn Abd al-Aziz, Shaykh al-Islam Ibn Taymiyya and Ibn al-Qayyim: the father may not compel the adult virgin into marriage. Their proofs in the page: Muslim (1421): the woman without a husband has more right to herself than her wali; the woman without a husband is she who has no spouse, virgin or previously married: all of them, except what the Sunna specifies, and it specified only the minor, whom her father marries without consent since she has no consent. Al-Bukhari (4843, 6567) and Muslim (1419) report:
The woman without a husband is not married until she is consulted, and the virgin is not married until her consent is asked. They said: Messenger of Allah, how is her consent? He said: that she remains silent.
reported by al-Bukhari (4843, 6567) and Muslim (1419)
Its apparent meaning: the virgin is not married by her wali, father or other, except after asking her consent and consulting her, which applies only to the adult, except the minor who has her father, based on Aisha's account and the consensus on its validity; and every marriage contract concluded contrary to what the Prophet legislated is void: the virgin's marriage without her prior silence is void, like the previously married woman's without consultation. These hadiths came in the sahih collections in the form of information signifying a command, and this is the strongest form of command.
The page adds the following reports: from Ibn Abbas, a virgin came to the Prophet and mentioned that her father had married her while she disliked it, and the Prophet gave her the choice (authentic hadith: Abu Dawud (2096), Ibn Majah (1875), Ahmad (2469)); from Ibn Abbas, a virgin came to the Prophet and said: my father married me while I disliked it, and the Prophet returned her marriage (reported by al-Nasa'i in al-Kubra (5387), authenticated by Ibn Hazm, al-Muhalla, 8/335); from Jabir ibn Abd Allah, a man married his virgin daughter without her consent, she came to the Prophet and he separated them, and in one version he returned her marriage (reported by al-Darqutni (3558)); from Nafi', from Ibn Umar, a man married his virgin daughter, she objected, she came to the Prophet and he returned her marriage (reported by al-Darqutni (3570)); and from Aisha, a young woman came to the Messenger of Allah and said: Messenger of Allah, my father married me to his nephew to raise his standing through me; the Prophet left the matter to her; she said: I have approved what my father did, but I wanted to know whether fathers have any say in the matter (a weak hadith: Ahmad (25043); Ishaq ibn Rahawayh in his Musnad (1359); Ibn Abi Shayba in his Musannaf (16230); al-Nasa'i (3269); al-Darqutni, 3/232; al-Bayhaqi (5369)).
The page adds: the adult virgin may dispose of her property, so she is not compelled, like the previously married woman and the man; the purpose of the contract's legality is the ordering of the interests of both spouses so that offspring arise and are raised between them, which is not achieved with total mutual aversion; when the cause of the absence of the legal purpose is apparent before the contract, it must not be permitted, for it is then a contract whose benefit does not visibly follow, unlike the case where it appears after the contract (Sharh Fath al-Qadir, 3/260-262; Tabyin al-Haqa'iq, 2/118; al-Ikhtiyar, 3/115-116; al-Jawhara al-Nayyira, 4/286; al-Lubab, 2/26; Ikhtilaf al-Ulama of al-Marwazi, p. 123-124; Sharh Sahih al-Bukhari, 7/252-253; al-Mughni, 7/31; Sharh al-Zurkani, 2/341-342; al-Mubdi', 7/23; al-Insaf, 8/55; Kashshaf al-Qina', 5/44; Manar al-Sabil, 2/552-553).
Shaykh al-Islam Ibn Taymiyya (Majmu' al-Fatawa, 32/22, 40): the father's compulsion of his adult virgin daughter into marriage has two well-known views, two narrations from Ahmad: the first, he compels the adult virgin, as the madhhab of Malik and al-Shafi'i, the choice of al-Khiraqi, the qadi and their supporters; the second, he does not compel her, as the madhhab of Abu Hanifa and others, the choice of Abu Bakr Abd al-Aziz ibn Ja'far; and this second view is correct. People disagree over the basis of ijbar: virginity, minority, their combination or each of them: four views in the madhhab of Ahmad and others; the correct position is that the basis of ijbar is minority, and the adult virgin is compelled into marriage by no one.
The Sahih reports from the Prophet: the virgin is not married until her consent is asked, nor the previously married woman until she is consulted; he was told: the virgin is shy; he said: her consent is her silence; and in one version of the Sahih: the father asks the virgin her consent (Muslim, 1421): this is a prohibition of the Prophet covering the father like the others, and he made it explicit in the other authentic version: the father himself asks her consent. Moreover: the father may not dispose of the property of his adult rational daughter without her consent, and her person is weightier than her property: how could he be permitted to dispose of it despite her aversion while she is of sound judgment? Moreover: minority is the cause of incapacity by text and consensus, and making virginity a cause of incapacity contradicts the principles of Islam: the Law has never made virginity a cause of incapacity in any matter of consensus.
He adds: those who accept ijbar disagree when she chooses a kuf' and the father chooses another: is her choice taken or the father's? Two views in the madhhab of al-Shafi'i and Ahmad; whoever takes the daughter's choice undermines his own principle, and whoever takes the father's choice involves a corruption, a harm and an evil that cannot be hidden.
Yet the Prophet said in the authentic hadith: the woman without a husband has more right to herself than her wali, the virgin is asked her consent, and her consent is her silence; and in one version: the previously married woman has more right to herself than her wali; by making the previously married woman more entitled to herself, he indicated that the virgin is not, her wali being so: and that belongs only to the father and the grandfather: such is the support of the proponents of ijbar; but they abandoned acting on the text and its apparent meaning, clung to the hadith's addressee without knowing the Messenger's intent, the phrase the woman without a husband being general to every wali while they restrict it to the father and grandfather; and as for the phrase the virgin is asked her consent, they do not make her consultation obligatory but recommended, to the point that some claimed that where the virgin's consent is obligatory, her speech is required: an opinion of some companions of al-Shafi'i and Ahmad, contrary to the consensus of the earlier Muslims and to the texts of the Messenger of Allah, since it is established by the widespread authentic Sunna and the agreement of the earlier imams that if the brother or paternal uncle marries the virgin, he asks her consent, and her consent is her silence.
As for the meaning: the Prophet distinguished the virgin and the previously married woman: the virgin is not married without consent, nor the previously married without consultation; the latter's consent is speech and the virgin's is silence, due to her shyness that makes it hard for her to speak of her marriage; she herself is not proposed to; rather her wali is approached, and he asks her consent, without her commanding him first; the previously married woman, whose virginal shyness has vanished, speaks of her marriage, proposes for herself and orders her wali to marry her to a kuf' with a dower: the wali is thus commanded by the previously married woman and a seeker of consent from the virgin.
Ibn Taymiyya continues: marrying her despite her aversion contradicts the principles of the Law and sound minds: Allah did not permit her wali to force her into a sale or a hire without her consent, nor into food, drink or a garment she does not want; how then could he force her into the intimacy and companionship of the one whose intimacy and companionship she rejects? Allah placed affection and mercy between the spouses: where would affection and mercy be if it occurs only with her hatred and revulsion? The Law does not compel a woman to a marriage she does not want: if she dislikes the husband and discord sets in between them, her matter is referred to whoever watches over her interest among her people, together with whoever watches over the husband's interest, who frees her from him without his authorization: how then could she be confined with him forever without her consent?
The woman is captive with her husband, as the Prophet said: fear Allah concerning women: they are held in trust with you, you have taken them as a deposit from Allah and you have made lawful their private parts by the word of Allah. The wali must therefore fear Allah concerning the one for whom he marries her, and look whether the husband is a kuf' or not: he marries her for her benefit, not his own; he may not marry her to an inferior husband for a purpose of his own, such as marrying that husband's protégée in exchange for her, which is the shighar marriage forbidden by the Prophet, or marry her to people with whom he forms alliances for corrupt aims, or to a man for the money he would give him while a more suitable suitor had proposed, preferring the mediocre suitor over the kuf'.
The basis is that the wali's disposal over his ward's person is like his disposal over her property: just as he may not dispose of her property except in what is best for her, he may not dispose of her person except in what is best for her; only the father has, over his child's property, a latitude others lack, according to the Prophet's saying: you and your property belong to your father.
Ibn al-Qayyim (I'lam al-Muwaqqi'in, 1/310-311): the Shafi'is say that the father may compel his adult, pubescent daughter who knows the religion of Allah and issues religious rulings on the lawful and unlawful, into marriage with the one she most detests and whose union she rejects more than anyone, without her consent; even if she chooses a kuf' who is young, handsome, devout and whom she loves, while the father chooses a kuf' who is old, deformed and ugly: the father's choice is taken, not hers. They abandoned pure analogy, the interest and the purpose of marriage, which is affection, mercy and good companionship; they say: if he sold for her a cord or a reed of her property without benefit to her, it would be annulled, but if he disposes of her person against her interest, it would stand; and they say: he knows her interest better than she does, which the apparent meaning refutes, for she knows better her inclination and aversion, the one with whom she likes to live and the one whose company she rejects.
They lean on the hadith of Ibn Abbas reported by Muslim: the woman without a husband has more right to herself than her wali, the virgin is asked her consent about herself, and her consent is her silence; this is a proof against them, and they abandoned the hadith of Abu Hurayra in the two Sahihs: the woman without a husband is not married without consultation, nor the virgin without consent; and the hadith of Aisha: are women consulted about their persons? He said: yes; she said: the virgin is shy; he said: her consent is her silence; in it he forbade marriage without her consultation, commanded that consultation, and informed that this is his legislation and his ruling: his command, his prohibition and his report all agree, and this is pure analogy and the true balance.
In az-Zad he writes: the adult virgin is not compelled into marriage and is only married by her consent; this is the view of the majority of the early generations, the madhhab of Abu Hanifa and that of Ahmad in one of his narrations, the religion we profess before Allah admitting no other, in accordance with the judgment of the Messenger of Allah, his command, his prohibition, the rules of his Law and the interests of his community: in accordance with his judgment, for he ruled that the reluctant virgin be given the choice; in accordance with his command, for he said that the virgin is asked her consent, a confirmed command since the phrase is a report signifying realization and obligation, the default of his commands being obligation unless consensus excludes it; in accordance with his prohibition: the virgin is not married without consent; he thus commanded, prohibited and ruled the choice: this is the establishment of the ruling by the strongest means.