A father or anyone else has no right to force his grown up and sane son or grown up and formerly married daughter to marry against their will. However, if one of them was forced to marriage, the contract shall be invalid. `A'ishah (may Allah be pleased with her) reported that a girl said to the Prophet (peace be upon him): "My father married me to his brother's son in order to raise his social standard, and I did not want this marriage [I was forced into it]. The Messenger of Allah (peace be upon him) sent for her father, then he gave the girl the choice of what to do. She said: O Messenger Allah, I have accepted what my father did, but I wanted to tell women that their father has no right to force them to marriage." (1) Al Khansa' bint Khidham Al Ansariyyah (may Allah be pleased with her) reported that her father gave her in marriage when she was a matron and she disliked that marriage. So she went to Allah's Messenger (peace be upon him) and he declared that marriage invalid. (2) The outward meaning of this Hadith is: the marriage of a formerly married woman is invalid if she was forced to it and that is unanimously agreed upon.
A father may give his insane son, insane adult, or his insane daughter in marriage without their permission if the signs of consent appeared to them and if there is an interest out of their marriage. However, scholars differed regarding a grown up virgin and concerning the young boy and girl who have not reached puberty age yet; is it permissible for the father to conclude their marriage without their consent?
Scholars have differed concerning the grown up virgin according to two views:
The first view: Their permission is not required but it is only desirable, so it is permissible for the father to force her to marriage. This is the view of Imam Malik, (3) Ash-Shafi`y, (4) and Ahmad. (5)
They hold the Hadith of Ibn `Abbas (may Allah be pleased with him) as evidence. The Prophet (peace be upon him) said: "A woman who has been previously married (Thayyib) has more right to her person than her guardian. And a virgin should also be consulted, and her silence implies her consent," (6) because he made the formerly married woman hold her decision in hand. So, it is a proof that the guardian of a virgin is more entitled than the virgin to conclude the marriage. As for asking for her permission, it is for sharing the matter with her.
The second view is: It is obligatory to ask for her permission and she cannot be forced for marriage. This is the view of Abu Hanifah, Ath-Thawry, and Ibn Al Mundhir (7) who hold the following as a proof:
- The Hadith of Abu Hurayrah: "A virgin should not be given in marriage except after her permission and a previously married woman should not be given in marriage except after consulting her." They said: O Messenger of Allah, what is her permission? He said: To keep silent." (8)
The Hadith mentioned the virgin and the formerly married woman, as it prohibited a father to give his virgin daughter in marriage without her permission. This means: a father has no authority to give his daughter in marriage without her permission otherwise asking for permission has no benefit. Moreover, suspending marriage on her permission indicates that permission is obligatory.
- The Hadith of Ibn `Abbas: "That a virgin came to the Prophet (peace be upon him) and mentioned that her father gave her in marriage forcibly, so the Prophet (peace be upon him) gave her choice [to keep marriage or to invalidate it]. (9)
- This Hadith indicates that the Prophet (peace be upon him) invalidated the marriage of the virgin whose father gave her in marriage forcibly. This indicates that the permission of a virgin is a must in marriage.
Likewise, a father cannot act in his grown up daughter's money without her permission and her virginity is more important than her money; so how is it permissible to act in her virginity against her will?
This is the most preponderant view which the Shaykh of Islam Ibn Taymiyah and his student Ibn Al Qayyim chose, and they said: [This is what we believe, we do not believe in otherwise, and it is the view which cope with the judgment of the Messenger (peace be upon him) and his instructions, prohibitions, the rules of his Shari`ah, and the benefits of his nation].
They answered the Hadith of Ibn `Abbas in three points:
1- It is deduction from the understanding of the Hadith which is different in argumentation than the wordings of the Hadiths.
2- The meaning has no generalization, so the meaning may be meant for young girl.
3- The last portion of the Hadith contradicts the meaning they claimed which is the Prophet's saying: (a virgin should be asked for permission)...etc. which indicates the obligation of asking permission and that contradicts compulsion. It is as if seeking the permission of a virgin and its apparent benefit is knowing her consent to act accordingly. The general meaning is that he gave choice for the formerly married woman and the virgin, as if he said the formerly married woman and the virgin hold their decisions in their hands. However, he stressed the right of a virgin for choice and giving permission. The reason for that is: a virgin is usually not betrothed from herself but from her guardian which is unlike the formerly married woman. So, when this is the case and they own their decisions in hand and their betrothal is in the hand of their guardians, he stressed her right for giving permission, so a father should not conclude her marriage before asking for her permission. And Allah knows the best.
If the guardian was not the father, it is not permissible for him to give the grown up virgin in marriage without her permission according to the view of all scholars. (10)
(1) Reported by An-Nasa'y, book of marriage, chapter on a virgin is given in marriage by her father forcibly Hadith No. 30269- 6/86, Ibn Majah, book of marriage, chapter 12 whoever gives his daughter in marriage forcibly Hadith No. 1874- 1/602, Ahmad 6/136, Ad-Daraqutny Hadith 45- 3/232, and Al Bayhaqy, book of marriage, chapter on fathers conclude the marriage of virgin daughters 7/119. It is chain of narration is good but it is Hadith Mursal (a Hadith with no Companion of the Prophet in the chain of narration).
(2) Reported by Al Bukhari, book of marriage, chapter on the marriage of the forced is not permissible Hadith No. 6546- 6/2547.
(3) See: Al Fawakih Ad-Dawany 3/951.
(4) See: Fathul-Wahhab 2/61.
(5) See: Hashiyat Ar-Rawd Al Murbi` 6/256 and Al Mubdi` Sharh Al Muqni` 7/20.
(6) Reported by Muslim —marriage is by pronouncing and a virgin is married by silence— book of marriage, chapter on asking the permission of the formerly married woman Hadith No. 3542- 4/141.
(7) See: Al Mabsut 5/12.
(8) Reported by Al Bukhari in marriage, chapter on a father or others should not give neither a virgin nor a formerly married woman in marriage except with their consent Hadith No. 5136 and Muslim, book of marriage, chapter on seeking the permission of a formerly married woman by pronouncing and a virgin by silence Hadith No. 3538- 4/140.
(9) Reported by Abu Dawud, book of marriage, chapter 25 on a father concludes the marriage of a virgin, Hadith 2098-2/195, Ibn Majah, book of marriage, chapter 12 on whoever concludes the marriage of his daughter forcibly Hadith No. 1875- 1/603, and Ahmad 2469-1/273. Al Arna'ut said: its chain of narration is authentic according to the condition of Al Bukhari, Al Albany said in Sahih Abu Dawud 6/330: [I said: An authentic Hadith. Likewise Ibn Qattan said so and Ibn Al Qayyim confirmed that].
(10) See this issue: Iqazh Al Afham Fi Sharh `Umdat Al Ahkam 2/35, Faydul-Qdir 3/449, and Fathul-Bary 9/193. Sharh Sahih Muslim of An-Nawwy 9/203, Mirqat Al Mafatih 10/69- 70, Ash-Sharh Al Mumti` 12/33, Al Fatawa Al Kubra 3/83, Majmu` Al Fatawa 32/23, Zad Al Ma`ad 5/96, in addition to the books of Fiqh that was mentioned previously.
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