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The very act of asking for her permission proves that the ḥadīth concerns a woman who has reached maturity; otherwise, if the intent were a minor, seeking her leave would serve no purpose. Ibn Daqīq al-ʿĪd said: “Permission is only relevant for one who possesses the capacity to grant it, and the minor has no such capacity; hence she does not fall under the intended meaning, and the report applies exclusively to adult women, which makes the ruling even more emphatic.” Al-Shāfiʿī, in his earlier opinion, said: “I consider it recommended not to marry off a young virgin until she attains majority and her consent is requested.”
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The Prophet expressed the ruling for a virgin in terms of “seeking permission” because modesty predominates in her case; therefore her agreement is not conveyed by an explicit statement as in the case of the previously-married woman.
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Her silence counts as permission, for modesty usually keeps her from speaking openly. It is preferable, however, to set a specific deadline, making it clear to her that once that period ends, her continued silence will be treated as consent and approval.
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Consulting the previously-married woman and asking the virgin’s permission are not fulfilled by merely informing her of a proposal. She must instead receive a full description of the prospective husband—his age, appearance, social standing, lineage, wealth, occupation, and anything contrary to these qualities, as well as every other matter that serves her interest.
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Shaykh al-Islām said: “If a woman has an agnatic guardian, that guardian may contract her marriage with her approval, and this requires no judicial authority by unanimous agreement. As for a woman who lacks such a guardian: if the village or neighborhood has a deputy of the ruler—such as the tribal chief or the headman—he may marry her off, and if they have an acknowledged leader, he too may do so, provided she grants permission. Allah knows best.”
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Shaykh al-Islām also said: “According to the overwhelming majority of scholars, having witnesses attest to the woman’s permission is not a condition for the contract’s validity; the only contrary view is a solitary, anomalous opinion reported within the schools of Aḥmad and al-Shāfiʿī. The well-known position of both schools accords with the majority that no such witnessing is required. Nevertheless, the witnesses to the marriage should attest to the bride’s permission before the contract for three reasons: to ensure unanimous recognition of the contract’s validity, to guard against later denial, and to avert the possibility that the guardian is lying when he claims to have sought her leave.”
Differences among the scholars
• There is no dispute that an adult, sane, previously-married woman cannot be compelled to marry; the evidence for that is clear.
• Nor is there any dispute that a virgin under the age of nine has no capacity to grant permission, so her father may marry her to a suitable match without her consent or approval. Shaykh al-Islām said: “Her father may marry her off, and she has no permission.” Their proof is the Prophet’s marriage to ʿĀʾishah—may Allah be pleased with her—when she was six years old.
• The scholars differ, however, regarding the adult virgin. The well-known view in the Ḥanbalī school is that her father may compel her, and this is also the position of Mālik and al-Shāfiʿī,