and the contract becomes binding.
A guardian who possesses the right of compulsion may marry off an adult insane woman, as well as an adult insane man whose need for marriage is evident; he may not, however, contract the marriage of a minor, whether girl or boy. A guardian who lacks this power is nevertheless obliged—when he is the only guardian in that degree—to comply with a woman’s explicit request to be married. If several guardians share the degree, as in the case of brothers, and she turns to one of them, it is incumbent upon him to respond, according to the sounder opinion.
When a number of guardians stand in the same rank, it is recommended, with their mutual consent, that the most learned and the eldest among them perform the marriage. Should they dispute, lots are drawn. If someone other than the one whose name is drawn concludes the contract, and she has authorised each of them, the marriage is valid on the preponderant view.
If one guardian marries her to Zayd and another marries her to ʿAmr, then if the earlier contract is known, that contract alone is valid. If the two contracts were concluded simultaneously, or if neither precedence nor simultaneity can be ascertained, both are void; the same ruling applies when it is certain that one preceded but not which one. Should the precedence of a particular contract be determined and then become uncertain, judgment must be suspended until the matter is clarified. If each purported husband claims that she knew he was first, both claims are heard on the basis of the new opinion that her acknowledgment is acceptable in matters of marriage. If she denies, she must swear; if she acknowledges one of them, his marriage stands. Whether the other claim is heard and she is made to swear for him depends on the two well-known opinions regarding the person who says, “This belongs to Zayd—rather, to ʿAmr”: if, in that issue, liability to ʿAmr is affirmed, then here too the claim is heard and the oath administered.
If a single person undertakes both sides of the contract when marrying his son’s daughter to another of his grandsons, the marriage is valid on the sounder view. A paternal cousin may not act as guardian to marry the woman to himself; another cousin of the same rank must perform the contract, and, if none is available, then the judge. Should the judge wish to marry a woman who has no guardian, someone higher than he among the rulers—or that superior’s deputy—must conclude the marriage. Just as one individual may not unite both sides of the contract, so, according to the stronger opinion, he may not appoint an agent for one side or two agents for both.
Section
If the guardian marries her to an unsuitable man with her consent—or if some co-equal guardians do so with her consent and the consent of the rest—the marriage is valid. If the nearest guardian does so with her approval, the more distant guardians may not object. Should one of the co-equal guardians wed her to such a man with her consent but without the approval of the others, the contract is invalid, although another opinion deems it valid while granting them the right to annul it.
These two opinions likewise apply when a father marries off a virgin daughter—whether minor or adult—to an unsuitable husband without her consent: on the more authoritative view the contract is void; on the other, it is valid, but the adult daughter retains the option to affirm or dissolve it, and the minor acquires that option upon reaching maturity.
If a woman who has no guardian asks the ruler to marry her to an unsuitable man and he does so, the marriage is invalid according to the sounder view.