Chapter: The Second Condition: Their Consent, Except for the Adult Imbecile, the Insane, and the Minor
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The Shaykh : Then he said "Chapter. The Second Condition: Their Consent". The consent of whom? The consent of the spouses, meaning that the husband must consent and the wife must consent. The evidence for this is the saying of the Prophet (peace and blessings be upon him) And because this contract is among the most dangerous of contracts, if a person cannot be forced into a sales contract, then in marriage it is all the more so, because it is more dangerous and greater. Indeed, if a sale does not suit you, it is easy for you to sell it, but this is a problem of a spouse, so the consent of the husband and the wife is necessary.
The author said "Except for what is excluded". First, he said "Except for the adult imbecile". The adult imbecile is the one who is between sanity and insanity; his consent is not required. Why? Because he has no intellect, and how can we say that consent is required from one who has no intellect? But it will come that he is not married off except by his father or his father's guardian. According to the jurists, his brother or his son does not marry him off; rather, his father or his father's guardian marries him off. If there is no one, then the ruler does. Be aware, this is an exception to consent. Why? Because he does not reason, his opinion is not considered, and he has no will.
The second, he said "And the insane". Huh? How? With a dammah? With a taa? No, I have "al-majnun" (the insane). The insane person also does not require consent, and the insane person is further from intellect than the imbecile, meaning the one who has completely lost his intellect. So his consent is not required. Why? Because he cannot consent, and... he has no intellect. So his father or his father's guardian marries him off, or the ruler. And be aware, the intended meaning of "guardian" is whom? The one who takes charge of the matter after his death. Good. "And the minor". The minor also does not require consent. Why? Because if he is below the age of discernment, he is like the insane, having no discernment. And if he is below the age of puberty, his consent is not considered and his displeasure is not considered. Based on this, the adolescent is married off by his father without his consent, and this is what the author held. But the correct view is that the consent of the spouse is necessary. If he is a minor, wait until he reaches puberty. As for marrying him to someone he does not consent to or does not accept, that is not allowed, because matters follow from marriage, including the obligation of financial maintenance. If we assume that this minor is obligated to provide maintenance for the wife and he has wealth, such as an inheritance from his mother or the like, it means we would exhaust his wealth, and this is not permissible. So the correct view is that the minor is not married off, because he has no need for marriage if he is not an adolescent. And if he is an adolescent, let him be looked after until he reaches puberty, then he chooses what he wishes. Good.
A virgin is not to be married until she is asked for her permission, and a divorced woman or widow is not to be married until she is asked for her permission, or he said: a previously married woman until she is asked for her permission.
لا تُنكح البكر حتى تُستأذن ولا تُنكح الأيّم حتى تُستأذن أو قال الثيّب حتى تستأمرThe author said "Except for what is excluded". First, he said "Except for the adult imbecile". The adult imbecile is the one who is between sanity and insanity; his consent is not required. Why? Because he has no intellect, and how can we say that consent is required from one who has no intellect? But it will come that he is not married off except by his father or his father's guardian. According to the jurists, his brother or his son does not marry him off; rather, his father or his father's guardian marries him off. If there is no one, then the ruler does. Be aware, this is an exception to consent. Why? Because he does not reason, his opinion is not considered, and he has no will.
The second, he said "And the insane". Huh? How? With a dammah? With a taa? No, I have "al-majnun" (the insane). The insane person also does not require consent, and the insane person is further from intellect than the imbecile, meaning the one who has completely lost his intellect. So his consent is not required. Why? Because he cannot consent, and... he has no intellect. So his father or his father's guardian marries him off, or the ruler. And be aware, the intended meaning of "guardian" is whom? The one who takes charge of the matter after his death. Good. "And the minor". The minor also does not require consent. Why? Because if he is below the age of discernment, he is like the insane, having no discernment. And if he is below the age of puberty, his consent is not considered and his displeasure is not considered. Based on this, the adolescent is married off by his father without his consent, and this is what the author held. But the correct view is that the consent of the spouse is necessary. If he is a minor, wait until he reaches puberty. As for marrying him to someone he does not consent to or does not accept, that is not allowed, because matters follow from marriage, including the obligation of financial maintenance. If we assume that this minor is obligated to provide maintenance for the wife and he has wealth, such as an inheritance from his mother or the like, it means we would exhaust his wealth, and this is not permissible. So the correct view is that the minor is not married off, because he has no need for marriage if he is not an adolescent. And if he is an adolescent, let him be looked after until he reaches puberty, then he chooses what he wishes. Good.