Section
The second condition: the consent of both spouses ........
His statement, “The second: their consent,” means that the second condition is the consent of the two spouses. The evidence for this is the Prophet’s statement: “A virgin woman is not to be married until her permission is sought, nor is a previously married woman to be married until her instruction is sought.” They said, “Messenger of Allah, how is her permission—that is, the virgin’s—given?” He said, “By her silence.” (1)
This applies even if it is the father who is giving her in marriage. The evidence is the general wording, “A virgin woman is not to be married,” which makes no exception for the father. There is also a narration in Sahih Muslim (2) specifically concerning the father, in which he said, “The virgin’s father must seek her permission.” Thus, he expressly mentioned both the virgin and the father. Moreover, this contract is among the gravest of contracts.
If a person cannot be compelled to enter into a sales contract, then this applies all the more so to marriage, for it is more serious and weightier. If merchandise proves unsuitable, it is easy enough for you to sell it; marriage, however, is difficult. This shows that no one may compel a girl to marry, even if she is a virgin and even if her father is her guardian. It is unlawful for him to force her, and the marriage contract is invalid.
The Prophet’s statement, “A virgin woman is not to be married”: if someone were to say, “This is not a prohibition; it is a statement,” how should we answer? We say: this statement conveys a prohibition. Know that when a declarative statement occurs in the context of a prohibition, it is more emphatic than a bare prohibition, as though the matter were already settled and known.