you marry me your daughter and that the dowry (mahr) of each woman be the other woman’s sexual rights,” and the second man accepts. If they omit making the sexual rights the dowry, the stronger opinion is that the marriages are valid. However, if they stipulate a sum of money while still treating those rights as the dowry, the contracts are void on the sound view.
A marriage is only valid in the presence of two witnesses whose conditions are: freedom, maleness, upright character, hearing, and sight. There is another view that allows a blind witness, yet the preponderant position is that the contract stands even when the witnesses are the spouses’ own sons or their enemies. It is likewise valid—according to the sounder view—when the witnesses’ uprightness is merely presumed, but not when their Islam or freedom is unknown.
If it later becomes proven—through testimony or the spouses’ joint acknowledgment—that a witness was openly immoral at the time of the contract, the marriage is void according to the school. A mere statement from the witnesses themselves, “We were immoral,” has no legal effect. Should the husband admit the witnesses’ immorality while the wife denies it, the judge separates them; if the marriage was not consummated, he owes half of the two dowries, and if it was, he owes the dowers in full. Where the woman’s consent is required, it is recommended, though not obligatory, to call witnesses to that consent.
Section
A woman may not contract a marriage for herself, even with permission, nor serve as an agent to marry someone else, nor may she accept a marriage proposal on another’s behalf. Intercourse under a marriage concluded without a guardian incurs the obligation of a customary dowry (mahr al-mithl) but no ḥadd punishment.
A guardian’s admission that he himself performed the contract is accepted; if he did not personally execute it, his admission is rejected. According to Imām al-Shāfiʿī’s later opinion, the acknowledgment of an adult, sane woman that she is married is also accepted.
The father may marry off his virgin daughter—whether a minor or an adult—without her permission, although seeking her consent is recommended. He may not marry off a non-virgin except with her express consent; if she is a minor, she is not to be married until she reaches puberty. The paternal grandfather holds the same authority whenever the father is absent. It makes no difference whether the virginity was lost through lawful or unlawful intercourse; by contrast, a loss of the hymen without intercourse—such as through a fall—has no legal effect, according to the sound view.
Collateral agnates, such as a brother or a paternal uncle, may never marry off a minor girl. An adult non-virgin is married with her explicit permission, while for a virgin, silent acquiescence suffices on the stronger opinion.
The emancipator (former master) and the ruler have the same standing as a brother, and the order of priority among guardians is: the father, then the grandfather, then the great-grandfather, then a full or paternal brother, then that brother’s son