The conditions of marriage and the invalidity of a coerced marriage.

The Shaykh : As for its contract, the most important condition in it is: the consent of each of the spouses to the other. The consent of the husband is necessary, so it is not permissible to force a husband to marry a woman he does not want. It was the custom among some Arabs, particularly some of the Bedouin, to force a man to marry his cousin’s daughter, considering it a disgrace to leave the tribe. For this reason, they force some of their young men to marry their cousins. This is an error. If the husband is forced to do so, the marriage is not valid. The husband has the right to refuse and say: “I do not want to marry this woman,” even if his father and mother are angry, because these matters concern the individual personally. How can he be forced to marry a woman he does not want to marry, merely for the sake of pre-Islamic tribal pride? If a person is not forced to eat food he does not desire, even though eating is an easy matter that takes an hour or half an hour and then one goes to the restroom, how can he be forced to marry a woman who will remain with him as long as Allah wills, and be the mother of his children, while he does not want her?
Likewise, if a woman is forced to marry someone she does not want, the marriage is not valid, even if she is a virgin, and even if the one who married her off is her father. It is not permissible for him to marry her to someone she does not approve of. Whether she explains her lack of approval by saying: “I do not approve of him because he is ugly,” “I do not approve of him because he has a bad character,” “I do not approve of him because he has little money,” “I do not approve of him because he is uneducated,” or she says: “I do not approve of him because my soul is not at peace with him; my soul is not at peace with him; I do not want to marry this man,” it is not permissible to force her. Some people force their daughter to marry her cousin’s son, and worse than that is the one who forces her to marry a specific man because that man wants to marry his father’s or brother’s sister or daughter, so that it becomes a cross-cousin marriage.
So, one of the most important conditions in marriage is: the consent of whom? The husband only? The husband and the wife. The evidence for this is the saying of the Prophet (peace and blessings be upon him): The difference between seeking permission (istidhan) and seeking advice (istimarah) is that seeking advice involves consultation and discussion, and the conversation and debate go back and forth, because the previously married woman’s shyness has been removed. As for seeking permission, it is said to her: “So-and-so has proposed to you, do you want to marry him?” without consultation, just seeking permission. The Prophet (peace and blessings be upon him) also distinguished between the virgin and the previously married woman regarding permission, and they said: What does “the virgin is silent” mean? Answer: Yes, that is correct.
The student: ...

The Shaykh : What does “she is silent” mean?
The student: ...

The Shaykh : She remains silent and does not speak. May Allah reward you, you have done well. It means she remains silent and does not speak. So if her father, for example, says to her: “Do you want to marry so-and-so?” and she remains silent, or he says: “So-and-so has proposed to you” and she remains silent, that is permission. She does not need to say: “Yes,” because she is a virgin and is shy. If she says: “No, I do not want to,” then he does not marry her off, and it is not permissible for him to force her to do so, even if he is her father. Because it is established in *Sahih Muslim* that he said: He specified the virgin and specified the father. As for those among the scholars who hold that it is permissible for the father to force his virgin daughter, as Abu Bakr married the Prophet (peace and blessings be upon him) to Aisha before seeking her permission, that is a weak position. This is a weak position, because we say: Who is like Aisha, and who is like the Prophet (peace and blessings be upon him)? Is it conceivable that Aisha would refuse consent to the Messenger (peace and blessings be upon him)? Answer: It is not conceivable. But a woman in our time can easily and plausibly refuse marriage to a specific person. And we say to this one who argues from that: Bring us a woman like Aisha, and you will not bring us a man like the Prophet (peace and blessings be upon him).
So if the opinion of the father or the other guardian conflicts with the opinion of the woman, and the woman chooses a person and the guardian chooses another person, whose choice do we follow? We follow the choice of whom? The choice of the woman, because she is the one concerned. If he refuses to marry her off and says: “Either you marry the one I chose, or there is no marriage,” we say: Sit down, do not marry her off. Who marries her off? The other guardian, the guardian who comes after him. So the father takes precedence over the full brother. If the father refuses to marry her to a suitable match, who marries her off? Her full brother. Her paternal brother, does he marry her off or not? If there is no full brother, yes, the paternal brother marries her off. If there is no paternal brother, does the maternal brother marry her off? No, the maternal brother has no guardianship. All those who come from the mother’s side alone have no guardianship. The maternal brother has no guardianship, the maternal grandfather has no guardianship, the maternal uncle has no guardianship. If we find a woman who has only a maternal uncle and no male agnatic relatives, her maternal uncle does not marry her off. The judge, the legal authority, marries her off. Because all those who come from the mother’s side alone, pay attention, have no guardianship in marriage. They do not marry her off. We must be careful about this, because some people think that the maternal brother has guardianship in marriage, and that is not the case.
I say: If the closest guardian refuses to marry the woman to a suitable match, the guardianship transfers to whom? Here, to the other guardian who follows him. If he refuses and says: “If her father did not marry her off, what business do I have?” We say: Who marries her off? We say: The second one after him. If all the relatives refuse, the judge marries her off. It is well known that women may be shy and not bring the matter to the judge. But we admonish these guardians to fear Allah the Mighty and Majestic regarding the women over whom Allah has placed them as guardians, and not to prevent them of their right in marriage if a suitable man in his religion and character proposes to them. If the father says: “I dislike this suitor, I do not want to marry him to her, because there was a dispute between me and him over a piece of land in the past, I cannot marry him to her,” is this a cause that prevents the marriage of the woman to this man? The answer: No, it is not a cause, because this is a personal matter between you and the man. As for the woman, do not prevent her of her right. And I say to those who prevent women from marrying those they dislike: What do you think if someone prevented you from marrying, would you be pleased? The answer: No. If you are not pleased that someone prevents you from marriage, why do you accept preventing these women? This is one point.
One of the most important conditions of marriage is consent.
Second: It is also necessary, it is necessary to have a guardian. The guardian and guardianship are limited to fatherhood, sonship, brotherhood, unclehood, and clientage. So who falls under fatherhood? Those who fall under fatherhood are the fathers, however high up, through males only. The father is a guardian, answer?
The student: Yes.

The Shaykh : The father of the father.
The student: Yes.

The Shaykh : The father of the father of the father.
The student: Yes.

The Shaykh : The father of the father of the father of the father.
The student: Yes.

The Shaykh : Okay, the father of the mother.
The student: He cannot.

The Shaykh : He is not a guardian, why? Because he is not through males only; there is a female between him and the woman. Okay, the father of the grandmother?
The student: No.

The Shaykh : No, he is not a guardian, okay.
The descendants? Guardianship is limited to males only among the descendants, to males, however low down, through males only. The son, here.
The student: A guardian.

The Shaykh : A guardian, the son of the son, the son of the son of the son is a guardian. Okay, the son of the daughter?
The student: Not a guardian.

The Shaykh : Why? Because he is not through males only; a female is between him and her. If a father and a son are present for a divorced woman, she has a father and she has a son, who marries her off? The father marries her off. In the guardianship of marriage, fatherhood takes precedence over sonship. In inheritance, sonship takes precedence over fatherhood, meaning: in the residuary inheritance. Okay, brotherhood includes the full brother and the paternal brother, and the maternal brother, here.
The student: ...

The Shaykh : No, yes, because the brothers who are guardians are the males who have not descended through a female. The full brother, the paternal brother. The son of the full brother, is he a guardian or not? The son of the paternal brother is a guardian. The son of the son of the full brother, the son of the son of the paternal brother is a guardian. The son of the sister.
The student: No.

The Shaykh : Not a guardian, why? Because he is not through males only; there is a female between him and the woman. Okay, how many sides are these? Fatherhood, then sonship, then brotherhood, unclehood also.
The fourth: Unclehood includes the uncles, however low down, and their sons, however low down, through males only. A full uncle.
The student: A guardian.

The Shaykh : A paternal uncle.
The student: A guardian.

The Shaykh : The son of a full uncle, the son of a paternal uncle, a maternal uncle.
The student: Not a guardian.

The Shaykh : Your uncle is your father’s brother from the mother.
The student: Not a guardian.

The Shaykh : Not a guardian, why? Because he has descended through a female. Okay, if the son of the son of a full brother and a full uncle are present, which one takes precedence? Here.
The student: The son of the son of a full brother.

The Shaykh : The son of the son of a full brother and a full uncle, what do you say? The son of the son of the full brother takes precedence, why? Because he is earlier in the side of brotherhood. For this reason, we arranged the guardians in four sides: fatherhood, then sonship, then brotherhood, then unclehood.
The fifth is the bond of patronage (wala'), meaning: if a man freed a slave woman who has no guardian, he is the one who marries her. By what relationship? By brotherhood, by fatherhood, by sonship, by unclehood? No, by what? By the bond of patronage.
So what is the evidence for the condition of the guardian in the marriage contract?
We say: The evidence is in the Qur'an and the Sunnah. Allah the Exalted said: The verse is not "Marry" meaning "marry the unmarried women," and is the plural of "aym," which is the woman who has lost her husband, or the woman who has no husband at all. And He the Exalted said: So if it were not that the marriage contract does not become valid except with a guardian, then preventing her from marrying and not preventing her, what would it be? The same. And the Prophet (peace and blessings be upon him) said: And he said:
Now, if we assume that the closest guardian is absent in a way that cuts off contact, and it is difficult for us to reach him, and it is difficult for us to get his consent by phone or fax, who marries her? The brother. For example, a woman whose father is in a distant country, we do not know his location, and even if we knew his location, we could not contact him. So her brother who is with her marries her. Her brother marries her because when the closest guardian becomes impossible to reach, the authority of guardianship transfers to the more distant one. Likewise, if the closest guardian refuses to marry her to a suitable match, the authority transfers to the more distant guardian.
Now, one of the conditions of the marriage contract is the absence of impediments. This is what some scholars said: the absence of impediments. So if a man marries a woman whom it is not lawful for him to marry, the marriage is invalid, whether he knew it or not. So if a man marries a woman who is in her waiting period, a woman whose husband died and she is in her waiting period, and he marries her, is her marriage valid or not? Brother, stand up.
The student: ...

The Shaykh : It is not valid. Why? Rest, I will answer, if Allah wills. If a man marries a woman who is in her waiting period due to death, we tell him: the marriage is not valid. He says: It is not valid? Why? Her husband died, and it is not possible for him to take her back. So is the marriage valid or not? It is not valid. The evidence is the saying of Allah, Blessed and Exalted is He: What is it? Good.
The second scenario: He married a woman who was in her waiting period due to death, but he did not know that the waiting period had not ended. What do we tell him? Is the marriage invalid or not? It is invalid. He says: I did not know? We say: Praise be to Allah, since you did not know, there is no sin on you. But the marriage is invalid. It must be separated between him and the woman. Then, when the waiting period ends, we contract the marriage for him anew, because the absence of impediments is necessary.
A third man, or a third example: He married a woman and had intercourse with her, and she bore children from him. Then a trustworthy woman testified that she had breastfed the man and the wife. Is the marriage valid? - Sit down, my son, sit down - Is the marriage valid?
The student: ...

The Shaykh : Why was it invalid? Because she is his sister through breastfeeding. Allah the Exalted said: up to His saying: So what do we do? We separate him from his wife, whom he thought was lawful for him. We separate them. As for the children who were born before he knew, do they belong to the mother alone, or to the mother and the father? Yes, to the mother and the father. Their belonging to the mother is clear, as they came from her womb. Their belonging to the father is because they were created from the fluid of a man who believed that his intercourse was lawful. He says: "If I had known, I would not have married her." So he has intercourse with her, believing that she is his wife, and that the intercourse is lawful. Thus, the children are his children, just as if they were from a wife whose marriage was valid. The scholars express this issue as follows: "The children are attributed to the man who had intercourse if his intercourse was based on a doubt", in order to preserve lineage so that lineages are not lost and the children are not disgraced. Thus, the children are his.
A man married a woman, and she menstruated after her divorce. She menstruated twice, then he married her. Is the marriage valid?
The student: It is not valid.

The Shaykh : Why? Because the waiting period must be three menstrual cycles. But the one who married her says: I married her after the completion of three months, and menstruation usually occurs every month. And she says that she did not menstruate except twice. What do we tell this man? We say: The waiting period is three months for the one who does not menstruate, the young girl or the old woman who has stopped menstruating. As for the one who menstruates, Allah says: How many? Meaning: three menstrual cycles.