Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger (peace be upon him) said: "A pre-married woman should not be given in marriage except after consulting her; and a virgin should not be given in marriage except after her permission.” The people asked, “O Allah’s Messenger! How can we know her permission?” He said: “Her silence (indicates her permission).” [Reported by the Group].
`A'ishah (may Allah be pleased with her) said: O Messenger of Allah, Should women be asked for their consent to their marriage?” He said, “Yes.” I said: A virgin, if asked, feels shy and keeps quiet. He said, “Her silence means her consent.” [Reported by Al Bukhari and Muslim].
These proofs indicate that there is no compulsion on a girl in marriage whether she was married before or still a virgin and the different between them is the way of receiving permission from them. Usually women who married before do not feel shy to speak about marriage, therefore they are asked for marriage directly, they approve marriage, and deputize their guardians in signing the contract of their marriage; therefore the Messenger of Allah (peace be upon him) said: (is asked for permission).
As for the virgin, she is always shy, therefore she is asked for marriage by her guardian who, in turn, asks for her permission. If she gives permission by speech or silence, it is a sign for consent, otherwise marriage cannot be contracted.
This is one of the beautiful traits of the Shari`ah because Muslim families that were built on consent are the most secure and stable because they accepted each other by mutual consent.
If a woman is forced to marry without her consent, her marriage contract will be null and void because it will be a prohibited contract that cannot be amended according to the Shafi`i, Hanbali, Hanafi school of Fiqh. There is also a narration reported from Imam Ahmad that the contract will be suspended on the permission of the girl; if she approves the contract, it will be valid otherwise she has the right to invalidate it.(1)
Some jurists did not agree to that view and hold the Prophet's differentiation between the virgin and the pre-married woman in permission as a proof. They said: It is not permissible to force a virgin for marriage(2), but this is wrong because the differentiation depends only on the way of receiving consent and permission.
The proof on the invalidity of such view is the narration of Ibn `Abbas that a virgin came to the Prophet (peace be upon him) and mentioned that her father had married her against her will, so the Prophet (peace be upon him) allowed her to exercise her choice. [Reported by Ahmad, Abu Dawud, Ibn Majah, and Ad-Daraqutny].
An-Nasa'y reported in his Sunan on the authority of `A'ishah (may Allah be pleased with her) that she said: A girl entered upon her and said: My father gave me in marriage to his nephew to lift his social status, but I hate this action. `A'ishah (may Allah be pleased with her) said: Sit down until the Messenger of Allah (peace be upon him) comes. When the Messenger of Allah (peace be upon him) came, she told him, thereupon he sent to her father, summoned him, and gave the girl her right of choice (to approve or disapprove the marriage). She said: O Messenger of Allah, I approve what my father did but I wanted women to know this matter.
The Shaykh of Islam (Ibn Taymiyah) said: It is not permissible for anyone to conclude a girl’s marriage contract except with her permission as the Messenger (peace be upon him) commanded. However, if she disapproved the contract, she will not be forced for marriage except for the young virgin girl whose father might conclude her marriage contract without her permission. As for the grown-up pre-married woman, is not permissible for anyone to conclude her marriage without her permission: not for the father or anyone else according to the Ijma` (consensus of scholars) of Muslims. Likewise the grown-up virgin whose marriage cannot be concluded without her consent except if her father and her grandfather concluded her marriage according to Ijma` of Muslims.(3)
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(1) See Al Mughny 7/364, Fathul-Bary 9 / 194, Al Bahr Ar-Ra'iq Sharh Kanz Ad-Daqa'iq > Book of marriage.
(2) At-Taj wa Al khlil (an abridge for) the book of marriage and Al Um of Ash-Shafi`y (5/29).
(3) Majmu` Al Fatawa (32/39-40).
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