View Full Version : Marriage without woman's consent and Reliance of the Traveller
Salam Alaykum,
I think at least some of you know the position expressed in Reliance of the Traveller, where it is mentioned that a virgin woman's father or her grandfather can marry her off to a "suitable match" without asking her consent and I suppose even if she does not agree with the marriage.
If this ruling is totally encompassing, this could mean that even a 25 or 30 year old woman who may definitely not agree to marrying someone (maybe she has someone else in mind) can still be married to whoever "suitable" the father chooses for her, regardless of protests.
So I would like to know:
1. Is this the famous ruling in the Shafii Fiqh?
2. What about the other fiqhs?
3. If it is the famous ruling of any one of the Fiqh schools, is there any way out of this for the woman?
:wswrwb: u say "u suppose" it means that he can marry her off without her consent, how did u come to that conclusion, as it is clearly stated that the womans permission must be sought and that applies wether she was previously married, or not and no matter what age she is. This is further clarified by the ayat in surah nisaa and the following hadiths.
Allah ta ala said ( what means) "O you who believe! You are forbidden to inherit women against their will. Nor should you treat them with harshness, that you may take away part of the dowry you have given them - except when they have become guilty of open lewdness. On the contrary live with them on a footing of kindness and equity. If you take a dislike to them, it may be that you dislike something and Allah will bring about through it, a great deal of good." Al Quran 4:19
Malik related to me from Abdullah ibn al-Fadl from Nafi ibn Jubayr ibn Mutim from Abdullah ibn Abbas that the Messenger of Allah, SAAWS, said, "A woman who has been previously married is more entitled to her person than her guardian, ( she must give her consent) and a virgin must be asked for her consent for herself, and her consent is her silence " Malik's Muwatta
The Prophet saaws said, "A matron 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 Apostle! How can we know her permission?" He said, "Her silence (indicates her permission)." Sahih Al-Bukhari
Narrated Khansa bint Khidam Al Ansariya "...that her father gave her in marriage when she was a matron and she disliked that marriage. So she went to Allah's Apostle and he declared that marriage invalid." Sahih Al-Bukhari
and in another narration it states : A young woman complained to `A'ishah the wife of the Prophet Muhammad, May the peace and blessings of Allah be upon him saying: "My father married me to his brother's son in order to raise his social status. However, I hate it." When the Prophet, May the peace and blessings of Allah be upon him, heard her complaint, he gave her the option of having the marriage annulled. She said: "O Messenger of Allah! I have accepted what my father has done. However, I wanted to know that women had a choice in the matter."
"...Her guardian should not make a promise (to somebody to get her married to him) without her knowledge..." Sahih Al-Bukhari
^
I know about these Ahadeeth, but the rules in the different authors of Fiqh books sometimes interpreted these Ahadeeth differently, and take into account a great number of things. The rules of the Shafii and maliki Madh-habs say that while a nonvirgin woman cannot be married wuthout her consent to marry anyone, even to the point that she can override the decision of her guardians and marry whomsoever she wishes, the virgin girl may be given in marriage without her consent, and even in spite of her opposition to someone whom her father thinks is in her best interests.
In the Hanafi Madh-hab, the girl before puberty may be given in marriage without her consent, but once she reaches puberty she may annul the marriage contract. I do not know what is the condition in the Shafii and Maliki Madhabs, and how may a woman who does not want this type of marriage annul it (if at all she can) and this is why I am asking the questions.
^
I know about these Ahadeeth, but the rules in the different authors of Fiqh books sometimes interpreted these Ahadeeth differently, and take into account a great number of things. The rules of the Shafii and maliki Madh-habs say that while a nonvirgin woman cannot be married wuthout her consent to marry anyone, even to the point that she can override the decision of her guardians and marry whomsoever she wishes, the virgin girl may be given in marriage without her consent, and even in spite of her opposition to someone whom her father thinks is in her best interests.
In the Hanafi Madh-hab, the girl before puberty may be given in marriage without her consent, but once she reaches puberty she may annul the marriage contract. I do not know what is the condition in the Shafii and Maliki Madhabs, and how may a woman who does not want this type of marriage annul it (if at all she can) and this is why I am asking the questions.
double check that with an alim because many people say "the such and such madhab says this and the such and such madhab says that" but when u go ask the people of knowledge u find that not to be the case at all. how would it be even possible that imam a shafi and imam malik went against the clear evidences from Allah ta ala and his messenger salAllahu alleyhi wa salam, masha Allah they dedicated their lives to learning and passing on the clear message from the daleel alhamdulillah. I have never head any scolar say that it is permissible to marry a woman wether virgin or not without her consent, the opposite is true in all cases, the father/walli may however not permit her to marry someone unsuitable, but he cannot force her to marry someone without her consent, this is clear in surah al nisaa.Alhamdulillah.
Salam Alaykum,
I think at least some of you know the position expressed in Reliance of the Traveller, where it is mentioned that a virgin woman's father or her grandfather can marry her off to a "suitable match" without asking her consent and I suppose even if she does not agree with the marriage.
If this ruling is totally encompassing, this could mean that even a 25 or 30 year old woman who may definitely not agree to marrying someone (maybe she has someone else in mind) can still be married to whoever "suitable" the father chooses for her, regardless of protests.
So I would like to know:
1. Is this the famous ruling in the Shafii Fiqh?
2. What about the other fiqhs?
3. If it is the famous ruling of any one of the Fiqh schools, is there any way out of this for the woman?
Wa Alaikum Asalaam.
Where is the Reliance does it say that?
^
Wa Alaikum Asalaam.
Where is the Reliance does it say that?
It says so in the Chapter on Marriage (Chapter M), under the heading of who is a Guardian for the female (I believe it is section 4.0... if it is not you can search for it anyway). It stipulates two types of guardians, those who can force her to marry against her consent and will and those who cannot. Only the father and grandfather can make a marriage without her consent, the rest would have to at least ask her, if she is silent, that is her consent.
Do note that it does not say that this is the recommended manner of marrying a woman, but it says that if such a marraige were to take place it would be a valid marriage and she would be the man's wife with all the rights and responsibilities that come with it.
All I wanted to know was how would a woman take herself out of this situation, if she really does not want anything to do with it, even if the father found her a "suitable" match (I will shortly post the conditions for suitibility).
And to sister 'asiya, we are not accusing any Imam of going against the Quran and Sunnah, I am simply stating what is said in these books of Fiqh with respect to this matter. As a further extension, the Hanafi Fiqh is more lenient than others when it comes to a woman marrying even without her guardian's consent.
So the conclusions reached work both ways.
^
And to sister 'asiya, we are not accusing any Imam of going against the Quran and Sunnah, I am simply stating what is said in these books of Fiqh with respect to this matter. As a further extension, the Hanafi Fiqh is more lenient than others when it comes to a woman marrying even without her guardian's consent.
So the conclusions reached work both ways.
wasnt saying u were akhi , just a reminder to myself as always and others that we should check with a scolar, because sometimes we misinterpret what we read, could even be mistranslated as does happen sometimes, because always Islam is in accordance with what Allah ta ala and his messenger salAllahu alleyhi wa salam have stated, and if there appears to be a contradiction that is always due to our lack of understanding and not due to any contradiction in Al Islam, so i just find its best to do as Allah ta ala says in the Quran, what means "ask those who know " the scolars, cos a forum like this an unlikely place to get a proper understanding of this matter, would be better to sit with a scolar who can bring u the daleels of all the madhabs and what their specific rulings are, and what they are based on insha Allah.
This is one of the places where the Maliki position is explained:
http://ourworld.compuserve.com/homepages/ABewley/Page51.html
<H4>32.2a. A father arranging the marriage of a virgin daughter
A father can arrange the marriage of his virgin daughter without her permission even if she is beyond the age of puberty. It is up to him whether he consults her or not.
[To whomever he wants for the dowry he wishes, even for less than a suitable dowry. He can give her choice, and it states in al-Jawahir and elsewhere that it is recommended that he ask her permission.]
32.2b. Someone other than the father arranging the marriage of a virgin
However, if anyone other than the father is arranging the marriage of a virgin, such as a guardian appointed in the father's will or anyone else, he cannot give her in marriage unless she is beyond the age of puberty and has given her consent. In this case her silence is taken as consent.
Mudawwana that an orphan is not given in marriage by her guardian until she comes of age and gives permission. Ibn Naji said, "unless there is a will from the father to marry her to a certain person and then he acts in loco parentis. There is a text in the Mukhtasar which states that the guardian as the same position as the father in compulsion to marriage with two preconditions. One is that he the husband is specified and the other is that the father commands that. The shaykh states after this, "The girl is not married unless her father commanded that she be married." What he mentioned about other relatives than the guardian, like the grandfather and brother, is known in the School.]
32.2c. A woman who has been married before
A woman who has already been married cannot be given in marriage, by her father or anyone else unless she herself agrees to it and gives verbal consent.
[When she is adult, sane and free and free has not lost her virginity through injury or fornication, be she sensible or foolish, by her father or anyone else. It is limited to the adult instead of the child who loses her virginity before becoming an adult. He marriage is not dependent on her consent. "Sane" excludes the mad woman. Her father can compel her, even if she has children. The judge can also compel the adult mad women if she has no father. What is mentioned about asking her permission is by word, as Malik, ash-Shafi'i, and Muslim transmitted, "The widow is is more entitled to herself than her guardian, and the virgin is asked for consent for herself, and her consent is her silence." What is meant by the widow is the non-virgin. The difference between the two is the shyness which is found more fully in the virgin rather than the non-virgin. It is reported from Ibn al-Qassar that modesty has ten parts: nine in women and one in men. When a woman marries, a third of it goes. When she gives birth, two-thirds is gone, and if she fornicates, it is all gone.]
</H4>
Medievalist
02-11-07, 02:24 PM
^
I know about these Ahadeeth, but the rules in the different authors of Fiqh books sometimes interpreted these Ahadeeth differently, and take into account a great number of things. The rules of the Shafii and maliki Madh-habs say that while a nonvirgin woman cannot be married wuthout her consent to marry anyone, even to the point that she can override the decision of her guardians and marry whomsoever she wishes, the virgin girl may be given in marriage without her consent, and even in spite of her opposition to someone whom her father thinks is in her best interests.
In the Hanafi Madh-hab, the girl before puberty may be given in marriage without her consent, but once she reaches puberty she may annul the marriage contract. I do not know what is the condition in the Shafii and Maliki Madhabs, and how may a woman who does not want this type of marriage annul it (if at all she can) and this is why I am asking the questions.
I cant comment on the other madhaahib but the bit in bold stands true for the ahnaaf with the caveat at the end of the bit in bold - that her annulment of the nikah must be uttered by her verbally at the very moment of attaining maturity - whether in company or alone. If she hesitates and some time later decides on annulment it is not valid and she is bound to her husband :D
al-ghazalli
02-11-07, 05:18 PM
Imam al-Qayrawani (Rahimullah) the Maliki Jusrist and Scholar who authored the Risala states that if their is sufficent opposition from the Women whether she be young or old then the Nikah is invalid and the marriage can not take place.
The madhab of Imam Malik (Rahimullah) is divided between the "popular opinion" (mashur) or the non-mashur opinion, sometimes the popular opinion may go against the majority opinion of the madhab, but our fiqh relies on the popular opinion as stated by Ibn Ashir in al-Murshid al-Muin.
And Allah Knows Best.
^
Imam al-Qayrawani (Rahimullah) the Maliki Jusrist and Scholar who authored the Risala states that if their is sufficent opposition from the Women whether she be young or old then the Nikah is invalid and the marriage can not take place.
The madhab of Imam Malik (Rahimullah) is divided between the "popular opinion" (mashur) or the non-mashur opinion, sometimes the popular opinion may go against the majority opinion of the madhab, but our fiqh relies on the popular opinion as stated by Ibn Ashir in al-Murshid al-Muin.
And Allah Knows Best.
What about the Shafii' opinion, does it give any dispensations for the woman to use if she truly opposes the marriage?
al-ghazalli
03-11-07, 03:53 AM
umm give me like 10 mins and I can take a look at Bidyat al-Mujtahid and i'll reply back with an answer inshallah.
al-ghazalli
03-11-07, 04:28 AM
What about the Shafii' opinion, does it give any dispensations for the woman to use if she truly opposes the marriage?
What I mention below is from Qadi Ibn Rushd a Maliki Jurist who wrote one of the master pieces in Islamic Literature, recording down Ijma between the schools of Fiqh and also the iktilaf between the schools and why differences arose.
Taken From Bidyat al-Mujtahid wa Nihayat al-Muqtasid
Kitab al-Nikah;
18.2.1.1 Aspect 1: Consent in Marriage;
..."Permission in marriage is of two types. It takes place for men and deflowered women by means of words and for consulted virgin women through their silence, that is, their consent; rejection, however is by words. There is no dispute about this, as a whole except what is narrated from the followers of al-Shafi (Rahimullah); that the permission of the virgin is by words, when the person giving her away in marriage (her guardian) is other than her father or the grandfather...."
18.2.1.2: The person whose consent is taken into account for the validity of the contract.
The person whose acceptance is taken into account for the validity of this contract is identified in the Law (Sharia) in two ways. In the first, the consent of the parties (themselves) to the marriage, the groom and the bride, is taken into account, either with the consent of the guardian, or without his consent....
We say: The jurists agreed upon the stipulation of the consent and acceptance of men who had attained puberty, were free and were in charge of their own affairs.
On the question of women, whose consent is taken into account in marriage, they agreed that the consent of the deflowered baligh (major) woman is to be taken into account, because of the saying of the Prophet (Upon Him Be Peace), "The deflwoered woman expresses her own consent." except what is narrated from Hasan al-Basri. They disagreed about the baligh virgin and the non-baligh virgin.
The reason for their disagreement is based on the conflict of the indirect indication of the communication (dalil al-khitab) with the relevant general meaning in this, which is found in the saying of the Prophet (Upon Him Be Peace) that, "the orphan girl is not to be married without her permission," and his saying, "the orphan girl is to be asked herself." It is narrated by Abu Dawud. The meaning derived from it through the indication of the communication is that one having a father is different from the orphan girl. The saying of the Prophet (Upon Him Be Peace) in the well-known tradition of Ibn Abbas , "The virgin is to be asked (for permission)", makes the seeking of permission for each virgin obligatory through its generality. The general meaning is stronger than the indirect indication of the text, but Imam Muslim has narrated, in the tradition of Ibn Abbas, an addition that "the virgin's permission is to be sought by the father." This is decisive on the point of dispute.
al-Shafi said about the non-baligh deflowered women that the father should not force her into the marriage.
This is going to take longer then I anticipated so inshallah I will finish up the rest tomorrow evening as it is 1:28am here.
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