Islamic Fiqh > Marriage and family > Wilaya (marital guardianship) and kafa'a > Third case: the previously married woman (thayyib)
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Updated on 27 September 2026 at 3:52 AM
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Al-Mawardi (al-Hawi al-Kabir, 9/53-54): as for the virgin with a wali other than the father and grandfather, such as brothers and paternal uncles, she is either a minor or an adult; if she is an adult, they cannot compel her by consensus, and they cannot marry her without her consent; the difference between fathers and residuary heirs is that the father's kinship contains a portion those lack, which strengthened their guardianship until it went beyond the guardianship of marriage into guardianship of property; and if the virgin is a minor, no residuary heir can marry her off in any way. Al-Amrani (al-Bayan, 9/181): the virgin's marriage by a wali other than the father and grandfather is not valid without asking her consent, and this is a consensus without disagreement. Ibn Taymiyya (Majmu' al-Fatawa, 32/40): the adult virgin cannot be married without her consent by anyone other than the father and grandfather, by consensus of the Muslims. And the grandfather has no ijbar over the adult, according to most scholars, contrary to the Shafi'is.
The people of knowledge agree: the adult previously married woman cannot be married by her wali, father or other, without her consent. Al-Bukhari reports the account of Khansa bint Khidham al-Ansariyya:
My father married me off while I was a previously married woman and I disliked it. I went to the Prophet and he annulled my marriage.
reported by al-Bukhari (6546)
Ibn Abd al-Barr (al-Tamhid, 19/318): this hadith is authentic, its authenticity and application being agreed upon: those who say there is no marriage without a wali teach that the previously married woman is married by her wali, father or other, only with her consent and approval; and those who say the wali has no say over the previously married woman are the most worthy to use this hadith. Ibn al-Mundhir (al-Ijma', 349): they agree that the previously married woman's marriage by her father without her consent is not permitted. Ibn Taymiyya (Majmu' al-Fatawa, 32/39-40): the adult previously married woman cannot be married without her consent, neither by the father nor by another, by consensus of the Muslims. Ibn al-Qattan al-Fasi (al-Iqna', 3/1167, no.
2147): they did not disagree: the previously married woman's marriage by her father is not permitted without her consent. Muhammad ibn Nasr al-Marwazi (Ikhtilaf al-Ulama, p. 124): they did not disagree over it, based on the hadith of Khansa bint Khidham and the hadith of Ibn Abbas: the woman without a husband has more right to herself.
Ibn Qudama (al-Mughni, 7/33-34): if the father marries his previously married daughter without her consent, the marriage is void even if she consents afterwards. The page then divides: the adult previously married woman cannot be married without her consent according to most people of knowledge, except al-Hasan: he marries her even if she dislikes it; and al-Nakha'i: he marries his daughter if she is dependent on him, and if he is independent in her house, he consults her. Isma'il ibn Ishaq: no one is known to have said what al-Hasan said about the daughter: an isolated opinion by which he contradicted the people of knowledge and the Sunna, Khansa bint Khidham al-Ansariyya having reported that her father married her off while she was a previously married woman, that she disliked it, that she went to the Prophet and that he annulled her marriage, reported by al-Bukhari and all the imams.
Ibn Abd al-Barr: this hadith carries agreement on its authenticity and application, and the only known opponent is al-Hasan; Khansa was from Quba', the wife of Unays ibn Qatada killed at Uhud; her father married her to a man of Banu 'Amr ibn 'Awf, she disliked it, complained to the Messenger of Allah who returned her marriage, and she married Abu Lubaba ibn Abd al-Mundhir. And Abu Hurayra reported that the Messenger of Allah said: the woman without a husband is not married until she is consulted (agreed upon), and: the woman without a husband has more right to herself than her wali; and Ibn Abbas reported from the Prophet: the wali has no say over the previously married woman (reported by al-Nasa'i and Abu Dawud). The reason: she is rational, knows the purpose of marriage, has experience: so she cannot be compelled, like the man.
The page then raises the disagreement over the minor previously married woman: may she be married without her consent? The Hanafis, the Malikis and the Hanbalis in one view: the father may compel his minor previously married daughter into marriage: minority is the basis of the ruling; she is a minor, so she is compelled like the virgin and the boy; the loss of virginity adds nothing to her beyond what masculinity adds to the boy, and the minor boy is compelled, so is she; the hadiths apply to the adult, to whom he gave more right to herself, whereas the minor has no right; and by the general meaning of Surah an-Nur 24-32: marry the single ones among you; and everyone over whom guardianship of property is established may be compelled into marriage, like the minor virgin and the boy; and she has two benefits, use and enjoyment: the wali may contract over the use of her benefit through hiring, so over her enjoyment through marriage, liberation being one of her two benefits (al-Mabsut, 4/218; al-Hidaya, 1/198; al-'Inaya, 4/220-221; al-Bahr al-Ra'iq, 3/126).
The page details: he is the wali of one whose person and property he does not maintain, so he will dispose of the contract; the Law, given her minority, puts the wali's judgment in place of hers, as for the boy and the property; the loss of virginity does not remove minority nor the meaning of judgment; if she had a judgment she would be incapable of acting on it, the wali's judgment standing in for hers; the hadith targets the adult, consultation and having more right to oneself occurring only after maturity; if the minor is meant, consultation is recommended, not obligatory, like consulting mothers about weaning their daughters; and other reasons:
ijbar is established in her state as for the virgin; the father's guardianship over her is established as for the boy; any consideration that does not remove guardianship over property does not remove the father's ijbar, its basis being maturity; the contract involves an exchange, the dower, so the father may conclude it over the minor previously married woman like hiring and sale; the loss of virginity that removes ijbar is the one bearing the ruling of consent, like the adult; and she is one of the woman's two states, marriage by the father therefore remaining permitted as for the virgin; she is moreover barred from her property like the minor, so she is compelled; and she is equated with the minor virgin in that her choice is not valid, so her consultation has no meaning (al-Ishraf, 3/289-290, no. 1124; al-Tawdih of Ibn al-Hajib, 3/513; Sharh Sahih al-Bukhari, 7/254).
The Shafi'is and the Hanbalis in one view: no marriage without her consent, based on the generality of the hadiths: the woman without a husband is not married without consultation, nor the virgin without consent, her consent being that she keep silent (al-Bukhari (4843)); in one version: the virgin is not married without consent, nor the previously married without consultation, her consent being her silence (al-Bukhari (6567)); and: the previously married woman has more right to herself than her wali, the father asks the virgin her consent, and her consent is her silence (Muslim (1421)).
Their reasons in the page: ijbar varies with virginity and its loss, not with minority and maturity, and she is a previously married woman; awaiting her maturity has a benefit: she will choose for herself and her consent will count, so waiting is obligatory, unlike the virgin; any quality that removes the wali from complete guardianship before maturity prevents ijbar, by analogy with the manumission of a slave girl occurring after maturity, which prevents ijbar, so a fortiori if it occurred before; and she is free, sound, her waiting period ended by intercourse: no ijbar over her, like the adult.
As for the verse, if it applies to guardians, it is specified by what preceded; and the analogy with the virgin and the boy through guardianship of property is not valid: guardianship of property is broader, since it is established for the executor who has no guardianship of marriage; in the virgin and the boy, the absence of an option grounds ijbar, whereas the previously married woman has the option in their view; and the analogy of use fails: the term of use is limited and such a contract becomes possible again after maturity, while enjoyment is permanent and no such contract is possible afterwards (al-Hawi al-Kabir, 9/67; al-Bayan, 9/182-183; al-Ifsah, 2/142; al-Mughni, 7/33-34; al-Kafi, 3/26; Sharh al-Zurkani, 2/345; al-Mubdi', 7/23-24). Ibn Qudama adds a third view: the nine-year-old girl is married with her consent, and below that the previous disagreement is retained (al-Mughni, 7/33-34).
Ibn Rushd finally reports: for the minor previously married woman, Malik and Abu Hanifa say the father compels her, al-Shafi'i that he does not compel her; and the later scholars report three views in the Maliki madhhab: Ashhab: the father compels her as long as she has not reached maturity after the divorce; Sahnun: he compels her even if she has reached it; Abu Tammam: he does not compel her even before; what we report from Malik is what the people of the questions of disagreement, such as Ibn al-Qassar, reported from him; and the cause of their disagreement is the confrontation of the text's general indication: in any case, the previously married woman is not married after that without her express consent, her silence not sufficing here because she is previously married, according to the Prophet's saying: and the previously married woman is consulted.
There is no disagreement: one whose virginity has disappeared through an act of intercourse that establishes lineage, that is, intercourse within a valid, invalid or doubtful marriage with a dower due, marries as a previously married woman (al-Kasani, Bada'i' al-Sana'i', 2/244). Two situations arise. The first: the disappearance of virginity through fornication (zina) or rape. The jurists disagree: is ijbar lifted by that, so that she is judged like a previously married woman, or does she remain in the status of the virgin and marry as virgins do?
Abu Hanifa and the Malikis: the loss of virginity that lifts ijbar is the one occurring through intercourse in a valid marriage or a doubtful case, without fornication or rape; the one who has fornicated or been raped does not lose ijbar: she is treated as a virgin in asking consent and marries as virgins do. Abu Hanifa's argument in the page: the cause for which the Law established speech and put silence in its place for the virgin is shyness, and it exists in her case; the text attests it: the hadith in which women are asked about their persons and Aisha says: the virgin is shy, Messenger of Allah?
He said: her consent is her silence; the silence answers the case of the virgin too shy to pronounce consent; shyness is thus a cause established by the text, and a textual cause is not restricted to the place of the text; rationally, shyness prevents the virgin from clearly pronouncing consent, for it reveals her desire for men, marriage leading to the intercourse which people condemn in her; if she were required to be questioned while she does not ordinarily speak, her marriage would be lost while she needs it, which is not permitted; and this shyness exists in her case even if she is truly previously married, her loss of virginity not being known to people who would condemn an express consent; the hadith, the virgin is consulted, the previously married woman is consulted, targets the one known to people as previously married, general discourse reverting to what is customary, so the woman who lost her virginity by accident does not enter it although she is so in reality (Bada'i' al-Sana'i', 2/244-245; al-Mabsut, 5/7-8; al-Hidaya, 1/197; Sharh Fath al-Qadir, 3/270-271; al-Ikhtiyar, 3/117; al-Bahr al-Ra'iq, 3/123).
The Malikis: the meaning for which the previously married woman's ijbar is lifted is that the shyness peculiar to the virgin and her reticence vanish and she joins those who choose; but this does not exist in the case of the fornicator: shyness predominates in her more than in the virgin, because of the ugliness of her act and the shame of having been shunned by people; so ijbar is not lifted; and the loss of virginity without intercourse does not lift ijbar, like the jump and the leap; virginity carries two effects, incapacity over property and ijbar in marriage: guardianship of property is not lifted by that act, so neither is ijbar (al-Ishraf, 3/290-291, no. 1125; al-Ma'una, 1/476; Sharh Sahih al-Bukhari, 7/254; Bidayat al-Mujtahid, 2/5).
The two companions of Abu Hanifa (Abu Yusuf and Muhammad), the Shafi'is and the Hanbalis: one whose virginity has disappeared through lawful or unlawful intercourse, through fornication or rape, is as if she had lost it through the consummation of marriage: she is judged like the previously married woman in asking consent.
Their proofs: the virgin is consulted, the previously married woman is consulted; it is said: the virgin is shy, Messenger of Allah; he said: her silence is her consent (hasan: Ahmad (7131)); the previously married woman expresses herself about herself, the virgin's consent is her silence (authentic: Ibn Majah (1872), Ahmad (17757)); the woman without a husband is not married without consultation, nor the virgin without consent, her consent being that she keep silent (al-Bukhari (4843)); in one version: the virgin is not married without consent, nor the previously married without consultation, her consent being her silence (al-Bukhari (6567)); and: the previously married woman has more right to herself than her wali, the father asks the virgin her consent, her consent is her silence (Muslim (1421)): the Prophet divided women into two categories and made silence a consent for one, so the other speaks; and she is previously married in language and in Law, the previously married woman being one consummated frontally, and this one is so; the page gives the proof:
if a man bequeathed the manumission of every previously married woman among his slaves, she would be included by consensus, and if he bequeathed to virgins, she would not be included; if he stipulated her as a virgin in marriage or purchase and discovered she had fornicated, he would hold the right of annulment; and she is consummated frontally, like the one consummated in a doubtful case; and the reasoning on shyness is not valid: it is a hidden reality considered not in itself but by its locus, virginity; that reasoning would lead to annulling the hadith's explicit meaning and would be void in itself, with no difference between the coerced and the willing; at maturity she is not compelled; and their opponents' phrase, she has not experienced consent, is annulled by intercourse in a doubtful case or over a slave owned, and by the minor bride (Bada'i' al-Sana'i', 2/244-245; al-Mabsut, 5/7-8; al-Hidaya, 1/197; Sharh Fath al-Qadir, 3/270-271; al-Ikhtiyar, 3/117; Tabyin al-Haqa'iq, 2/119-120; al-'Inaya, 4/414; al-Jawhara al-Nayyira, 4/289; al-Lubab, 2/27-28; al-Bayan, 9/183; Sharh Sahih Muslim, 9/204-205; al-Najm al-Wahhaj, 7/72-73; Mughni al-Muhtaj, 4/251; Tuhfat al-Muhtaj, 8/589; Fath al-Bari, 9/193; al-Ifsah, 2/124; al-Mughni, 7/35-36; Majmu' al-Fatawa, 32/42).
The second situation: the disappearance of virginity through a jump, prolonged rubbing (ta'nis), a finger or the severity of menstruation. Most jurists, Hanafis, Malikis, Shafi'is in the madhhab and Hanbalis, place her in the status of virgins for asking consent: the previously married woman's consent is only accepted through speech because shyness disappears with intercourse, and this shyness does not disappear otherwise. Al-Kasani: there is no disagreement: one whose virginity has disappeared through a jump, an accident, menstruation or prolonged rubbing is in the status of virgins and marries as they do; nor is there disagreement over one whose virginity has disappeared through intercourse that establishes lineage, who marries as previously married women do (Bada'i' al-Sana'i', 2/244). The Shafi'is: one whose virginity has disappeared through a jump, prolonged rubbing, a finger or the severity of menstruation has the status of the virgin in the madhhab, for the same reason (al-Bayan, 9/183; al-Najm al-Wahhaj, 7/72-73; Mughni al-Muhtaj, 4/251; Tuhfat al-Muhtaj, 8/589).
Ibn Qudama: if her virginity has disappeared without intercourse, as through a jump, the severity of menstruation, a finger or a stick, she has the status of virgins, as Ibn Hamid mentioned: she has not experienced the purpose and her frontal consummation has not occurred, so she resembles one whose virginity has not disappeared; and even if she were consummated anally, she does not become a previously married woman, not having been consummated frontally (al-Mughni, 7/36). The Shafi'is also report an opposite view: one whose virginity has disappeared through a jump or rubbing has the status of one consummated by marriage, for she is previously married (al-Bayan, 9/183).
There is no disagreement among the scholars of the community: the previously married woman's consent is speech, based on the hadiths already cited (al-Bukhari (4843); al-Bukhari (6567); Muslim (1421)). Al-Nawawi (Sharh Sahih Muslim, 9/204-205): the previously married woman must speak, without disagreement, whether the wali is her father or another, for her complete shyness has vanished through married life, whether her virginity disappeared in a valid or invalid marriage, through intercourse in a doubtful case or through fornication; and if her virginity disappeared through a jump, a finger, prolonged rubbing or anal intercourse, she has the status of the previously married woman according to the soundest view, and it has been said: the status of the virgin.
Ibn Qudama (al-Mughni, 7/34): there is no disagreement among the people of knowledge: the previously married woman's consent is speech, based on the hadith, and the tongue is what expresses the heart and what is considered wherever consent is considered, except a few simple cases where silence was put in its place due to an impediment.
As for the virgin, her consent is silence in the case of the father and the grandfather, by consensus of the people of knowledge: the woman without a husband is not married without consultation, nor the virgin without consent, her consent being that she keep silent (al-Bukhari (4843)); in the other version (al-Bukhari (6567)); and from Aisha: the virgin is shy; he said: her consent is her silence (al-Bukhari (4844)); and: the previously married woman has more right to herself than her wali, the father asks the virgin her consent, her consent is her silence (Muslim (1421)). The reason: shyness prevents the virgin from clearly pronouncing consent to marriage, for it reveals her desire for men, marriage leading to intercourse, and people condemn it in her and call her shameless; if she were required to speak words she does not ordinarily say, her marriage would be lost while she needs it, which is not permitted.
For a wali other than the father and grandfather, the page reports the disagreement: is her speech required or does her silence suffice? Most people of knowledge, Hanafis, Malikis, Shafi'is in the madhhab, Hanbalis and other scholars: her consent is her silence and her speech is not required: the virgin is consulted and her consent is her silence; the orphan is consulted about herself, if she is silent she has given her consent; the text applies at the point of disagreement; consent through speech does not vary with the variation of guardians, so neither does silence; and silence was made her consent only because she is too shy to speak, shyness predominating, and because it is disapproved that she hasten to answer, which would suggest she desires it: none of this varies with the guardians (al-Ishraf, 3/304-305, no. 1141). The Shafi'is report one view: consent occurs only through her speech, any marriage requiring her consent requiring her speech, she being capable of speech, like the previously married woman.
Ibn Qudama (al-Mughni, 7/34-35): the virgin's silence counts as consent according to the people of knowledge, among them Sharid, al-Sha'bi, Ishaq, al-Nakha'i, al-Thawri, al-Awza'i, Ibn Shubruma and Abu Hanifa, with no difference between a guardian who is a father or otherwise; and the companions of al-Shafi'i hold two views on her silence in the case of a wali other than the father: the first, it is not a consent, silence being the absence of consent and able to signify consent, shyness or something else, as in the case of the previously married woman, and it suffices only in the case of the father because her consent is not considered there.
Ibn Qudama answers: this is a departure from the people of knowledge and an abandonment of the sound, explicit Sunna, to which al-Shafi'i cannot be attached given his standing among the most faithful to the Sunna of the Messenger of Allah, and no fair person turns to this view, the previous narrations of the Prophet excluding it; as well as Aisha's version (agreed upon); and the version: the orphan is consulted, her silence is her affirmation (reported by al-Nasa'i); and: the orphan is consulted about herself, if she is silent that is her consent, explicit for the one who is not with her father; and al-Athram reported, from Adi al-Kindi, from the Prophet: the previously married woman expresses herself about herself, the virgin's consent is her silence; and the reports on this are numerous; shyness is a bridle on her tongue preventing her from pronouncing consent, without her being shy to refuse: if she is silent, consent is presumed and it suffices; and what they said would lead to her silence not being a consent even in the case of the father, since they made its existence like its non-existence: that would be a rejection of the Prophet in totality, an abandonment of the explicit and weighty reports and a violation of the community's consensus.
If she pronounces consent, it is more complete and perfect than her silence; and if she weeps or laughs, it is like her silence. Abu Yusuf and Muhammad: if she weeps, it is not a consent, weeping indicating aversion and not being a silence entering the hadith's generality. The answer: Abu Bakr reported through his chain from Abu Hurayra that the Messenger of Allah said: the orphan is consulted; if she weeps or is silent, that is her consent, and if she refuses, no force is exercised over her; and she speaks of her refusal while hearing the request for consent, which is a consent like silence and laughter; weeping indicates excess of shyness, not aversion, and if she disliked it she would have restrained herself, for she is not shy to refuse; and the hadith explicitly indicates that this silence is a consent, and by its meaning whatever is in its meaning, such as laughter and weeping.
Al-Nawawi (Sharh Sahih Muslim, 9/204): the Prophet's saying about the virgin, her consent is her silence, is apparently general: every virgin and every wali, and her silence suffices absolutely: this is the correct view; some of our companions said: if the wali is the father or grandfather, his consultation is recommended and her silence suffices, and if he is other than them, her speech is obligatory, for she is shyer with the father and grandfather; the sound view followed by the majority is that silence suffices for all the guardians, based on the hadith's generality through the presence of shyness.
In the language, 'adl: a man restrains his wife so as to prevent her marriage; to restrain a woman: to confine her at home; a narrow place; a hardening matter; and a very severe illness (al-Misbah al-Munir, 2/415; Tahdhib al-Lugha, 1/301; Lisan al-'Arab, 11/451). The jurists define 'adl as the wali preventing his ward from marrying. Al-Baghawi (Sharh al-Sunna, 9/45): 'adl is that the wali prevents his ward from marrying; its root is constriction and restraint, from the she-camel whose calf remains stuck and cannot come out. Ibn Qudama (al-Mughni, 7/24): 'adl is that the wali prevents the woman from marrying her kuf' when she asks for it, each of the two desiring the other, whether she demands the mahr mithl or less.
There is no disagreement among the jurists: when the woman asks her wali to marry her to a kuf' with the mahr mithl, he may not refuse, based on the generality of:
Do not prevent them.
Surah al-Baqara 2-232
'Adl being prevention; the verse came down concerning Ma'qil ibn Yasar who was blocking the remarriage of his divorced sister: the Prophet called him and married her to him. Al-Bukhari reports from al-Hasan the account of Ma'qil ibn Yasar: I married my sister to a man who divorced her; when her waiting period ended, he came to ask for her; I said to him: I had married you and honored you and you divorced her, then you come asking for her? No, by Allah, she will never return to you; the man was good and the woman wanted to return to him; Allah sent down this verse and I said: now I will do it, Messenger of Allah; and he married her to him (reported by al-Bukhari (4837)).
Ibn Batal (Sharh Sahih al-Bukhari, 7/249): the scholars agree that the ruler is the wali of whoever has no wali, and that he marries the woman who wants to marry, calls for a kuf' and whose wali refuses. Ibn al-Mundhir (al-Ishraf, 5/30): all known scholars agree on this, and it is the madhhab of Malik, al-Thawri, al-Shafi'i, Ahmad, Ishaq, Abu Ubayd, Abu Thawr and the people of opinion, also reported from Uthman, Sharid and al-Nakha'i: and this is what we say. Ibn al-Qattan al-Fasi (al-Iqna', 3/1164, no. 2139): the same consensus.
Ibn Rushd (Bidayat al-Mujtahid, 2/12): they agreed that the wali has no right to obstruct his ward when she asks for a kuf' with the mahr mithl, and that she brings her matter to the ruler who marries her, except the father, concerning whom the madhhab differs.
Al-Kasani (Bada'i' al-Sana'i', 2/252): the imamate's guardianship has two conditions beyond those of kinship guardianship: the first, general to both types: that no other wali exists at all, according to the Prophet's saying:
The ruler is the wali of whoever has no wali.
authentic hadith, reported by Abu Dawud (2083), al-Tirmidhi (1102), Ahmad (25365) and Ibn Hibban in his Sahih (4074)
The second, specific to the type of delegated guardianship: the wali's obstruction: when the free, adult and rational woman asks to be married to a kuf', the wali must marry her, the prohibition of 'adl amounting to a command of the opposite; if he refuses, he causes her harm, and the Imam is appointed to repel harm: guardianship is therefore transferred to him.
Consensus has been reported on its gravity: Ibn Hajar al-Haytami (az-Zawajir, 2/576) counts the wali's obstruction among the major sins, the fifty-second: the wali refuses to marry his adult, rational ward who asks him for a kuf'; al-Nawawi states it explicitly in his fatwas: the Muslims agreed that 'adl is a major sin; but the imams in their works rank it among minor sins, and its classification as major is a weak view; Imam al-Haramayn (al-Nihaya) said: 'adl is not forbidden when there is a judge, and others said: it should not be forbidden absolutely since arbitration is permitted, the matter then not being restricted to the wali; and when it is called minor, this is repeated: the apparent meaning of the words of al-Nawawi and al-Rafi'i is that it becomes major, since he said: 'adl is not among the major sins, but one becomes wickedly sinful by its repetition, at least three times according to what is reported from some.
The page also treats the case where she chooses a kuf' and her wali chooses another: the Shafi'is, contrary to the soundest view, and the Hanbalis, and such is the import of the Hanafi madhhab, hold that her choice is preferred and that the wali must grant her request, for her protection (al-Bayan, 9/194-195; Rawdat al-Talibin, 4/697; al-Najm al-Wahhaj, 7/84; Mughni al-Muhtaj, 4/256-257; Tuhfat al-Muhtaj, 8/603-604; al-Dibaj, 3/204; al-Mughni, 7/24; Sharh al-Zurkani, 2/334; al-Insaf, 8/75). It is the third question that fixes the threshold of 'adl:
The Malikis: the father who compels his daughter is not qualified as obstructing for having repeatedly set aside a kuf' she chooses: the father's natural compassion for his daughter grounds it, along with her ignorance of her own interests, for the father may know of her or of the suitor something unsuitable; he is therefore not qualified as obstructing as long as his ijbar has not become a verified harm, even once; then the emir says to him: either you marry her, or we marry her over your head, according to the Prophet's saying: no harm and no reciprocating harm. But for the one he does not compel, previously married or adult rational virgin, the father is obstructing from the first refusal of a kuf', and every other wali likewise (al-Taj wa-l-Iklil, 2/507; Sharh Mukhtasar Khalil, 3/189; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/31-32; Hashiyat al-Sawi, 4/476; Tuhfat al-Hukkam, 2/572).
The Shafi'is: 'adl must be established before the judge for him to marry her, and it is not established as long as the wali has not refused before the qadi: the suitor, the woman and the wali appear, the judge orders the marriage, and if he says: I will not do it, or remains silent, the judge marries her, when his attendance is easy; if bringing him is difficult or he hides, proof must be allowed as for other rights, no proof having meaning in the wali's presence: he marries, otherwise there is 'adl. Marriage by the judge takes place when the refusal has not been repeated three times; there has been disagreement: are the three times three marriages or three presentations before the judge, even within a single marriage? It is said in al-Muhimmat: to be examined, and the sounder view is the second (Rawdat al-Talibin, 4/697-698; al-Najm al-Wahhaj, 7/84; Mughni al-Muhtaj, 4/256-257; al-Dibaj, 3/203).
The Hanbalis: 'adl occurs when the wali refuses three times: a kuf' suitor asks for her hand and he refuses, another and he refuses, a third and he refuses: it becomes a major sin that removes his guardianship, through harm and through wickedness; he is wickedly sinful only if the proposals repeat or if he blocks several of his wards at once; and one form of 'adl that removes his guardianship is that suitors give up because of his harshness, according to Shaykh Taqi al-Din; but the apparent meaning is that there is no sin here, he having no part of action in it; guardianship then passes to the nearest relative, and if he too obstructs, the judge marries her (Sharh al-Zurkani, 2/333; al-Mubdi', 7/36; Kashshaf al-Qina', 5/58; Mutalib Uli al-Nuha, 5/66).
This article reproduces the source pages as they stand: opinions are attributed to their authors and schools exactly as the source reports them, and they vary from one school to another, as well as within a single school between narrations. For a concrete situation, consult a qualified scholar who will apply the relevant madhhab to the case.