contracting the marriage alone. There is disagreement concerning a legally independent woman whose testamentary guardian has no authority over her. Ibn Habīb held that he has a stronger claim than her guardian to arrange her marriage. Asbagh said that her guardian has the stronger claim, while Sahnūn said that the executor is not her guardian. This applies when the testator merely says, “So-and-so is my executor,” without further stipulation.

As for a woman who is not legally independent and remains under the guardianship of a father or testamentary guardian, she is subject to the same rulings as a virgin with a testamentary guardian, except that her consent must be expressed verbally rather than through silence. An exception arises if she became unmarried before reaching puberty, following consummation of a valid or invalid marriage. There are three opinions concerning her. The first is that her father may compel her to marry so long as she has not reached puberty. The second is that he may compel her even after she has reached puberty. The third is that he may not compel her even before she reaches puberty. Al-Nakha‘ī related this last opinion from Abū Tammām. If she is an orphan with a testamentary guardian, he may not marry her off before puberty, but may do so thereafter. According to the view that her father may compel her to marry, her silence constitutes her consent. This is Sahnūn’s view.

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There is disagreement concerning a woman who has committed fornication or been raped. One opinion is that she is subject to the rulings governing a virgin in every respect; another is that she is subject to those governing a non-virgin in every respect. A third opinion is that she is treated as a non-virgin in that she may not be married without her consent, but as a virgin in that her silence constitutes consent.

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The wife or her guardian—whichever has authority to approve the dower—is the one who must swear the oath in a dispute involving the wife over the kind or amount of the dower, whether stipulated when the marriage was contracted or specified afterwards. The guardian, rather than the wife under his care, whether virgin or non-virgin, must swear because he was negligent in failing to have witnesses attest to the matter he handled on her behalf. If he declines to swear and the husband establishes his claim by his own oath, the guardian must compensate her for whatever she loses through his refusal, if he was negligent in failing to have witnesses attest to it.

As for a matter he did not handle on her behalf, but which she herself claims against her husband, she is the one who must swear if she has one witness supporting her claim or if the husband declines to swear. This is the position adopted by Muhammad ibn