Chapter: Reports Concerning Seeking a Woman’s Decision (istiʾmār) and Asking Her Permission (istiʾdhān)
Abu Hurayrah—may Allah be pleased with him—narrated that the Messenger of Allah (peace and blessings be upon him) said: “A previously-married woman is not to be given in marriage until she has been consulted, and a virgin is not to be given in marriage until her permission is sought.” They asked, “Messenger of Allah, how does she give permission?” He replied, “By remaining silent.”
Lexical notes
• al-ayyim: a woman who has been separated from her husband, whether through divorce or widowhood. That is the sense intended here, as it is contrasted with “virgin.”
• tustāʾmar: from istiʾmār, literally “to ask for an order.” The meaning is that the contract is not concluded until her decision is requested and she gives it.
• lā tunkahu: the present-tense verb is kept in the indicative after the negative particle lā, even though the intent is a prohibition—an established Arabic rhetorical device.
Overall meaning
The marriage contract is momentous: by it the husband gains lawful access to the very part of her person that a woman guards most jealously, and she becomes, in a sense, bound to his direction. For that reason, the just and merciful Lawgiver has granted her the right to choose her life-partner herself, the one with whom she will share intimacy and to whom her natural inclinations are best suited.
Accordingly, the Prophet (peace and blessings be upon him) forbade marrying off a previously-married woman until her explicit decision is obtained, and likewise forbade marrying off a virgin until her permission is sought and she consents. Because modesty predominates in the case of a virgin, the Law sufficed with the lighter requirement of simple permission, and even accepted her silence as a sign of her contentment.
Legal inferences
- It is prohibited to contract the marriage of a previously-married woman before consulting her and obtaining her decision. The prohibition is phrased as a negation for added emphasis, indicating that a marriage contracted without her approval is void.
- It is likewise prohibited to contract the marriage of a virgin before seeking her permission. By implication, a marriage concluded without that permission is also invalid.