“The third reason” is that the guardian may be lying when he claims to have obtained her permission. He may use this as a stratagem to secure testimony that he has married her off, while uninformed people imagine that the marriage is valid without her permission, since ordinary people believe that once a woman is married before a judge, she becomes a wife. This may lead to her being coerced and made a wife without her consent.

As for the “person conducting the contract,” who acts as the judge’s deputy: if he is marrying her off by virtue of guardianship over her, rather than as the guardian’s agent, he must not do so until he knows that she has given permission. This differs from merely witnessing the contract. If the guardian marries her off without her permission, this is a marriage contracted by an unauthorized person. According to Abū Hanīfah and Mālik, it remains suspended pending her permission; according to al-Shāfiʿī and the well-known position reported from Ahmad, it is invalid and rejected.

He—may Allah have mercy on him—was asked:

A girl lost her virginity through an unfortunate incident, although she has never entered into a marriage contract. A man sought to marry her, was informed of this, and accepted it. Would the contract be valid in these circumstances if the recognized witnesses testified that she was a maiden, to facilitate the matter?

He replied:

If they testify that she has never been married, they would be telling the truth, and this would not deceive the husband, since he knows her circumstances. She should be asked tactfully to express her consent verbally, for the scholars disagree over whether a woman who has lost her virginity through unlawful sexual intercourse gives permission through silence or through speech. The “former” is the position of al-Shāfiʿī and Ahmad, as well as Abū Hanīfah’s two companions. According to Abū Hanīfah and Mālik, her permission is expressed through silence, just as with a woman whose virginity remains intact.