after the divorce; this is the opinion reported from Ashhab.
A second view holds that the father may compel her even after she has reached puberty; this is Sahnūn’s position.
A third view maintains that he may not compel her, even before she reaches puberty; this is the opinion of Abū Tammām.
What we have related on Mālik’s authority is the very view transmitted from him by the specialists in the juristic disputes, such as Ibn al-Qaṣṣār and others.
The root of their disagreement lies in the clash between argumentum a contrario and the general sense of the texts. The Prophet’s words—may blessings and peace be upon him—
“Seek the orphan girl’s own decision; an orphan girl is not married off except with her permission”
imply that a girl who has a living father need not be consulted, apart from the single case on which the majority agree, namely the adult previously married woman. By contrast, the general wording of his statement—peace and blessings be upon him—
“The previously married woman has more right over herself than her guardian”
embraces both the adult and the minor. The same applies to the ḥadīth,
“A matron is not married off until her consent is sought, and a virgin is not married off until her permission is requested,”
whose general import supports al-Shāfiʿī’s view.
Their divergence on these two issues has yet another cause: the analogy each side drew from the point of consensus. Having agreed that the father may compel the non-adult virgin, and that he may not compel the adult thayyib—save for some eccentric opinions—they disagreed over the factor that grounds compulsion: is it virginity or minority?
• Whoever said it is minority concluded that an adult virgin may not be compelled.
• Whoever said it is virginity concluded that an adult virgin may be compelled, whereas a minor thayyib may not.
• Whoever said that either factor suffices on its own held that both the adult virgin and the minor thayyib may be compelled.
The first rationale is that of Abū Ḥanīfah, the second that of al-Shāfiʿī, and the third that of Mālik; the foundational principles lend strongest support to Abū Ḥanīfah’s reasoning.
They also differed over the kind of thayyib status that removes the father’s right of compulsion and requires the woman’s explicit acceptance or refusal. Mālik and Abū Ḥanīfah held that this applies only to a thayyib whose virginity was lost through a valid marriage, a doubtful marriage, or ownership (concubinage); it is not established through fornication or rape. Al-Shāfiʿī maintained that any loss of virginity terminates compulsion.
The cause of their disagreement is whether the ruling in the Prophet’s saying—peace and blessings be upon him—
“The previously married woman has more right over herself than her guardian”
attaches to thayyib in its legal sense or merely in its linguistic sense.
They are unanimously agreed that a father may compel his minor son to marry, and likewise his minor virgin daughter without consulting her, for it is authentically reported that
“the Messenger of Allah—peace and blessings be upon him—married ʿĀ’ishah, may Allah be pleased with her, when she was six or seven years old, and consummated the marriage when she was nine, her father Abū Bakr, may Allah be pleased with him, having married her off,”
except for a solitary dissenting report from Ibn Shubrumah.
From this arise two further questions:
- May someone other than the father give a minor girl in marriage?
- May someone other than the father arrange a marriage for a minor boy?
As for the first—marrying off a minor girl—al-Shāfiʿī said that only the paternal grandfather and the father may do so. Mālik said that no one may do so except the father alone—or a person whom the father has specifically deputed for that purpose after designating the groom—unless neglect and moral corruption are feared. Abū Ḥanīfah said that any guardian who holds authority over her, whether father, relative, or otherwise, may marry off the minor girl, and she has the option to annul the marriage upon reaching puberty.
And the reason