the first holds that the marriage is void, whereas the second maintains that if she ratifies it immediately it is valid, but if she rejects it the contract is annulled. Such is the wording transmitted from Mālik by Ibn ʿAbd al-Ḥakam.
A guardian may not marry off an orphan girl until she has reached the stage at which she can choose for herself and has attained the maturity normally expected of people in such matters. If she has been married off, then reaches legal majority and is displeased, I am of the view that the contract should be dissolved.
Some have said that, when an orphan is in urgent need of moral protection and financial support, there is no objection to marrying her off once she is about ten years old. Ibn al-Mawwāz added that, even if she later consents after attaining majority, the prior contract is still not valid; it must be annulled and a new marriage concluded.
Muḥammad ibn ʿAbd Allāh ibn ʿAbd al-Ḥakam considered Mālik’s soundest position to be that an orphan is not to be married until she reaches majority and expresses her approval. It is therefore unlawful for any guardian, executor, or ruler to contract the marriage of a virgin orphan before she comes of age and gives permission.
Should someone nevertheless marry her off before that time, three reports are related from Mālik. The first: the marriage is void and must be cancelled—even after she attains majority—so long as consummation has not taken place. The second: the contract is valid, but once she comes of age she may either uphold it or annul it; this was narrated by Ibn ʿAbd al-Ḥakam. The third: if she is poor and in need, the marriage clearly serves her welfare, and girls of her age are normally intimate with their husbands, the contract is permissible and binding, and she has no option to revoke it after puberty.
Whoever arranges the marriage of a virgin orphan must inform her that her silence counts as consent: if, after being told this, she remains silent, the contract becomes binding. Should she remain silent in that state, the marriage may be concluded; but if she recoils, weeps, stands up, or shows any sign of aversion, she is not to be married.
A thayyib (previously married woman) may only be married with her explicit verbal approval, for her silence is not deemed consent. In her case the father is like any other guardian, except that he enjoys a degree of precedence in arranging her marriage because the other guardians refer to him when approaching her. Mālik further held that her own son has the strongest claim to act as her guardian in marriage.