The Ruling on Marrying a Woman Without Taking Her Consent

The following message was received from one of the listening brothers. He says: Ibn al-Alla (S.M.A.M.), our brother. His message is somewhat lengthy. He says in it: It is well known that the contract is the law of the contracting parties, and this is a matter of consensus with no dispute. And that among the conditions for the validity of any contract is the consent of both contracting parties, the presence of witnesses, and the place where the contract is formed. But what about the marriage contract that is carried out through the official marriage officer or the judge with the presence of only one party of the contract, while that party is the husband, and the other party is the guardian of the wife? Usually, marriage is conducted in this manner for the contract without the presence of the wife, the second original party and the one concerned, despite the fact that the wife’s opinion was not taken when the husband proposed to her hand. This is a custom followed by the people of such-and-such city—mentioned by Shaykh Abdul Aziz—of not taking the opinion of the girl or the one who wishes to marry when someone proposes to her, even if it is assumed that this proposer is a relative of hers. And he continues with this method—Shaykh Abdul Aziz—to conclude that the fiancée’s opinion is not taken, and when the contract is written, she is not present. And he asks about the ruling?
Answer: Contracts are of different types: The marriage contract has its own status, and the contract of sale and lease and the like have another status. So in the contract of sale, it is recommended to have witnesses; because Allah said: [Surat al-Baqarah: 282]. So if they trade and witness with two witnesses, this is the best, and this is the Sunnah. And if it is a debt, it is prescribed to write the contract between them, as Allah the Glorious and Exalted said: [Surat al-Baqarah: 282].
So the Sunnah is writing with witnessing. But if it is a present trade, witnessing is sufficient. If they trade without witnessing, the sale is valid, and they have missed the Sunnah; because it is established from the Prophet (peace and blessings be upon him) what indicates the validity of the sale even without witnessing, and it is only recommended.
As for the marriage contract, it has another status. It is necessary to have the consent of the woman if she is a previously married woman (thayb) who has been married, or a virgin (bikr), according to the correct of the scholars’ opinions. And with this, it is necessary to have the two witnesses who attend the contract in the presence of the husband and the guardian. As for the woman, her presence is not a condition, and it is not necessary for her to be present. As long as she is satisfied with the contract, there is no need for her presence. Rather, what is required is four: the husband, the guardian, and the two witnesses. These are the ones who attend the contract, four: the husband, the guardian, and the two witnesses. So if the two witnesses are present, that is sufficient; because of his (peace and blessings be upon him) saying: .
So the point is: The official marriage officer marries the husband on behalf of the guardian in the presence of the witnesses. So the guardian says: “I have married you to my daughter,” or “my sister,” or “my brother’s daughter”—according to the status of the woman being married—and the husband says: “I have accepted this marriage,” and the two witnesses hear. This is if the wife is satisfied, with two witnesses who testify to her satisfaction, or the official marriage officer has met her and known her satisfaction, or her father informed him of it, and he is one who is trusted and relied upon, and that is sufficient.
As for what concerns the virgin, there is a difference of opinion in her case, as mentioned before. But the correct view is that her consent is necessary, and her father does not have the right to marry her off without her consent; because of the saying of the Prophet (peace and blessings be upon him): , and his (peace and blessings be upon him) saying: So the consent of both is necessary, the previously married woman and the virgin, even if the guardian is the father, according to the correct of the scholars’ opinions. And some of the scholars said: The father specifically has the right to marry her off without her consent; because he is more knowledgeable about her interests. For what came in some narrations, he (peace and blessings be upon him) said: They said: Its implication is that the non-orphan is not asked for her opinion. And the correct view is: That this has no implication, and that asking for permission is for the orphan and the non-orphan. But the Prophet (peace and blessings be upon him) specified the orphan because of the intensity of the need to ask her permission. Otherwise, everyone is asked for permission. So all women are asked for permission, the virgin and the previously married woman, the orphan and the non-orphan. Everyone is asked for permission. This is the correct view.
And if her father marries her off without her consent and she is a virgin, and the judicial ruler approves it, it is carried out; because the ruler’s ruling removes the difference of opinion. So if some of the rulers from the judges approve it, taking the opinion of those who said: The virgin is not asked for permission by her father, and he is more knowledgeable about her interests. This is a known opinion of the scholars. And if the ruler approves it and the ruler ratifies it, the difference of opinion is removed. But it is not permissible for her father to be lenient in this, nor to cling to some of the difference of opinion in that; because the Messenger (peace and blessings be upon him) has ruled on the matter, and he is the legislator, may Allah’s prayers and blessings be upon him. And he is the one upon whom the community must take his saying and stand firm on his Shari'ah, may Allah’s prayers and blessings be upon him. And because the father is not to be trusted, he may be lenient in this; either because it is his brother’s son, or because he gave him a lot of money, or for other reasons. So he does not care about the daughter, nor does he have mercy on her, nor does he show compassion to her. And he does not care about her consent or its absence. So for this reason, the Shari'ah came with asking for permission absolutely, even if it is her father, and even if she is a virgin.
Asking for permission is necessary, according to the correct view, to prevent harm to the daughter, and to care for the safety of her requirement; and because the husband has a great status, so her consent to him is necessary. Yes.
The presenter: Would you please repeat the wording of the contract so that the doubt is removed from our brother, if you please?
The Shaykh: Yes, so the contract is attended by four parties: the wali, who is her father if he is present, or his agent if he is absent. If he is missing, then her son, if she has an adult, mature son. If she has neither a son nor a father, then her full brother, then her paternal half-brother, then the closest of the 'asabah (residuary male heirs). Thus, the closest and most entitled of them takes charge of the contract: the father if he is present, then the paternal grandfather if he is present after the father, either in person or through their agents. If the father and grandfather are entirely absent, it passes to the son, then the son's son. If no son or grandson is found, because she is a young girl with no children, her full brother marries her off if she has a full brother. If he is absent, then her paternal half-brother. If both are absent, then her full brother's son. If he is absent, then her paternal half-brother's son, and so on, the closest then the next closest. They do not have the right to force her to marry anyone; rather, her consent is necessary, except if she is a minor under the age of nine. In that case, her father alone has the right to look into her best interest, to look into her best interest if she is under nine, and she does not need to give permission in this case; because the Messenger of Allah (peace and blessings be upon him) married 'A'ishah to her father without her permission, because she was a minor under the age of nine when he married her, and she was seven or six years old .
But if she reaches nine, she is not married off except with her permission, from her father and other than her father. Yes. And four attend it, as mentioned before: the father, the guardian absolutely, the husband, the two witnesses. These four attend the marriage: the guardian, whether he is a father or other, the husband, the two witnesses. As for the woman, her presence is not a condition.
The presenter: Her presence is not a condition?
The Shaykh: Yes.
The presenter: And is agency required for the woman?
The Shaykh: No, it does not need agency. Whenever the two witnesses testify to her satisfaction, that is sufficient.
The presenter: May Allah reward you. So the important thing in the matter is that her opinion is taken.
The Shaykh: Yes.
The presenter: And this is what our brother emphasizes in his message.
The Shaykh: This is necessary. Yes. Even if she is a virgin, according to the correct view. Except if she is under nine, then her father specifically has the right to look into her interest and to marry her off to whom he sees as suitable for the sake of interest, not for greed, but for the interest of the daughter herself. Yes.