The Messenger of Allah ﷺ said: 'Do not marry a woman who is in her waiting period (after divorce or death of her husband) without her permission, and do not marry a woman who is in her waiting period (after being widowed) without her permission.' The Companions asked: 'O Messenger of Allah ﷺ! How can her permission be known?' He replied: 'Or by her silence (it is considered permission).' This hadith is narrated directly in Bukhari and Muslim.

the Messenger of Allah ﷺ married her when she was seven years old, and when their marriage was consummated, she was nine years old, and she had her toys with her. And when the Messenger of Allah ﷺ passed away, she was eighteen years old.

Ibn Abbas (may Allah be pleased with them) narrated: The Prophet (ﷺ) said: "A widow is more entitled to herself than her guardian, and a virgin is consulted about herself, and her permission is her silence." In another narration: "And a virgin, her father consults her about herself, and her permission is her silence" [Narrated by Muslim]

(1) The statement: "A widow is more entitled to herself, etc." means more than her guardian in everything, including the contract and otherwise, as Abu Hanifah said, as stated in "Al-Marqah." Shaykh Ibn al-Humam said: The mentioned Hadith is opposed by: "No marriage except with a guardian." The widow is one without a husband, virgin or previously married. The proof is that it establishes for each a right, and for the guardian, within the statement "more entitled," it is known that the guardian has only the execution of the contract if she consents, and she is made more entitled to it than him. After this, either this Hadith and what they narrated are reconciled by preference or combination. On the first, this prevails due to the strength of its chain and lack of dispute in its authenticity, unlike: "No marriage except with a guardian," which is weak and inconsistent in its chain, connection, disconnection, and transmission. Also, Aishah’s Hadith (may Allah be pleased with her): "Any woman who marries without her guardian’s permission, her marriage is void, void, void," which Az-Zuhri denied. At-Tahawi said: Ibn Jurayj asked Ibn Shihab about it, and he did not recognize it. On the second, by applying combination, its generality is specified, which is common. This specifies Abu Musa’s Hadith (may Allah be pleased with him): "No marriage except with a guardian," after allowing the negation to be for perfection and Sunnah, which is the interpretation of her statement: "For women do not undertake or marry," in Al-Bayhaqi’s narration, meaning no marriage except with one who requires permission, i.e., no marriage except for one with guardianship, to negate the marriage of a non-Muslim to a Muslim woman, an insane woman, a slave woman, or a slave man, as marriage in the Hadith is general, not restricted. It specifies Aishah’s Hadith for one who married an unequal match, as stated. In "Sharh Jami‘ al-Jawami‘," the Hanafis interpreted it for the minor, the slave woman, and the partially freed slave woman

(2) The statement: "And a virgin, her father consults her, etc." The apparent Hadiths of this chapter indicate that if a mature virgin is married without her permission, the contract is invalid, as held by Al-Awza‘i, Ath-Thawri, Al-Utrah, and the Hanafis, narrated by At-Tirmidhi from most scholars. Malik, Ash-Shafi‘i, Al-Layth, Ibn Abi Layla, Ahmad (‘anhum), and Ishaq held that a father may marry her without permission, countered by the Hadiths in this chapter stating: "And a virgin, her father consults her," and also countered by Abdullah ibn Buraydah’s Hadith, as stated in "Nayl al-Awtar"

Ibn Abbas (may Allah be pleased with them) narrated: The Prophet (ﷺ) said: "A widow is more entitled to herself than her guardian, and a virgin is consulted about herself, and her permission is her silence." In another narration: "And a virgin, her father consults her about herself, and her permission is her silence" [Narrated by Muslim]

(1) The statement: "A widow is more entitled to herself, etc." means more than her guardian in everything, including the contract and otherwise, as Abu Hanifah said, as stated in "Al-Marqah." Shaykh Ibn al-Humam said: The mentioned Hadith is opposed by: "No marriage except with a guardian." The widow is one without a husband, virgin or previously married. The proof is that it establishes for each a right, and for the guardian, within the statement "more entitled," it is known that the guardian has only the execution of the contract if she consents, and she is made more entitled to it than him. After this, either this Hadith and what they narrated are reconciled by preference or combination. On the first, this prevails due to the strength of its chain and lack of dispute in its authenticity, unlike: "No marriage except with a guardian," which is weak and inconsistent in its chain, connection, disconnection, and transmission. Also, Aishah’s Hadith (may Allah be pleased with her): "Any woman who marries without her guardian’s permission, her marriage is void, void, void," which Az-Zuhri denied. At-Tahawi said: Ibn Jurayj asked Ibn Shihab about it, and he did not recognize it. On the second, by applying combination, its generality is specified, which is common. This specifies Abu Musa’s Hadith (may Allah be pleased with him): "No marriage except with a guardian," after allowing the negation to be for perfection and Sunnah, which is the interpretation of her statement: "For women do not undertake or marry," in Al-Bayhaqi’s narration, meaning no marriage except with one who requires permission, i.e., no marriage except for one with guardianship, to negate the marriage of a non-Muslim to a Muslim woman, an insane woman, a slave woman, or a slave man, as marriage in the Hadith is general, not restricted. It specifies Aishah’s Hadith for one who married an unequal match, as stated. In "Sharh Jami‘ al-Jawami‘," the Hanafis interpreted it for the minor, the slave woman, and the partially freed slave woman

(2) The statement: "And a virgin, her father consults her, etc." The apparent Hadiths of this chapter indicate that if a mature virgin is married without her permission, the contract is invalid, as held by Al-Awza‘i, Ath-Thawri, Al-Utrah, and the Hanafis, narrated by At-Tirmidhi from most scholars. Malik, Ash-Shafi‘i, Al-Layth, Ibn Abi Layla, Ahmad (‘anhum), and Ishaq held that a father may marry her without permission, countered by the Hadiths in this chapter stating: "And a virgin, her father consults her," and also countered by Abdullah ibn Buraydah’s Hadith, as stated in "Nayl al-Awtar"

A simile regarding the choice in marriage.

Abdullah ibn Buraydah, from his father (may Allah be pleased with him), narrated: A girl came to the Messenger of Allah (ﷺ) and said: "My father married me to his nephew to elevate his lowly status." He gave her the matter. She said: "I have approved what my father did, but I wanted women to know that fathers have no authority in the matter" [Narrated by Ibn Majah, Ahmad, and An-Nasa’i from Ibn Buraydah’s Hadith]

(1) The statement: "He gave her the matter, etc." This is evidence for Abu Hanifah (may Allah have mercy on him) on a mature woman marrying herself and not being compelled, as stated in "Tansiq an-Nizam"

(2) The statement: "I have approved what my father did, etc." The unauthorized agent in jurists’ terminology is one who is neither a proxy nor a messenger. If he marries a man or a woman without their permission, the contract is, according to us, suspended. If approved, it is valid; if rejected, it is void. Ash-Shafi‘i said the unauthorized agent’s marriage is void due to lack of guardianship, as the executor cannot establish the ruling, which is ownership, so it is null due to lack of benefit. For us, it is supported by what was narrated that he gave the matter of the woman married by her father without her permission to her, and she said: "I have approved what my father did, I only wanted to know if women have any authority in the matter." Also, because the contract was issued by its people, attributed to its subject, and there is no harm in its conclusion, so it must be deemed concluded. If he sees the benefit, he approves it. The contract’s ruling may be delayed, as in a sale with an option condition, so it is upheld to preserve the contractors’ words and suspended to avert harm from him. Ahmad said the same in a narration, as stated in "Al-‘Ayni" and "Fath al-Mu‘in"

Marriage is valid in the absence of a wali.

Aishah (may Allah be pleased with her), the Prophet’s wife, narrated: She married Hafsah, the daughter of Abdul Rahman, to Mundhir ibn az-Zubayr, while Abdul Rahman was absent in Sham. When Abdul Rahman arrived, he said: "Is this done to someone like me, and preempted?" Aishah spoke to Mundhir about it, and Mundhir said: "It is in Abdul Rahman’s hands." Abdul Rahman said: "I would not undo a matter you have decided." So Hafsah remained with him, and it was not a divorce [Narrated by As-Sahawi, and Malik narrated similarly in "Al-Muwatta"]

(1) The statement: "She married Hafsah, etc." It is stated in "Al-‘Arf ash-Shadhi": Our evidence includes what is in At-Tahawi that Aishah married Hafsah, her brother’s daughter, to her sister’s son, and Hafsah’s father, Abdul Rahman, was in Sham, and Aishah was not her guardian. At-Tahawi said: Since Aishah, a discerning woman, saw that marrying her to someone else was permissible and deemed the contract valid, even approving the ownership that only occurs with a valid and established marriage, it is impossible for us that she saw this, knowing the Messenger of Allah (ﷺ) said: "No marriage except with a guardian." Thus, it is established that what was narrated from Az-Zuhri about it is invalid

Umm Salamah (may Allah be pleased with her) narrated: The Messenger of Allah (ﷺ) came to me after Abu Salamah’s death and proposed to me directly. I said: "O Messenger of Allah, none of my guardians are present." He said: "None of them, present or absent, would dislike it." She said: "Rise, O Umar, and marry the Prophet (ﷺ)." So he married her [Narrated by At-Tahawi]

(1) The statement: "He proposed to me directly, etc." At-Tahawi said: This Hadith shows that the Messenger of Allah (ﷺ) proposed to her directly, indicating that the authority in marriage is hers, not her guardians’. She said to him: "None of my guardians are present." He said: "None of them, present or absent, would dislike it." She said: "Rise, O Umar! Marry the Prophet (ﷺ)." Umar was her son, then a young, non-mature child, as she said in this Hadith: "I am a woman with orphans," meaning Umar, her son, and Zaynab, her daughter. A child has no guardianship, so she delegated him to execute the marriage contract for her, and he did so. The Prophet (ﷺ) deemed it permissible. Umar, with that delegation, stood in place of the one who delegated him. Thus, Umm Salamah was as if she executed the marriage contract for herself to the Prophet (ﷺ). Since the Prophet (ﷺ) did not wait for her guardians’ presence, it indicates that her person is hers, not theirs. If they had any right or authority in it, the Prophet (ﷺ) would not have proceeded with a right belonging to them before their permission. As for reasoning, we see that before a woman’s maturity, her father’s authority over her person and wealth is permissible, and the contract in all that is his, not hers, with a uniform ruling. When she matures, all agree that her guardianship over her wealth is lifted, and what was his in contracting for her wealth in her minority returns to her. Reasoning suggests that the contract for her person exits her father’s hand upon her maturity, and what was his before her maturity returns to her. Thus, her ruling in her wealth and person after maturity is uniform, belonging to her, not her father, as it was uniform before maturity

Abu Salamah ibn Abdul Rahman (may Allah be pleased with him) narrated: Abdullah ibn Abbas and Abu Hurayrah were asked about a pregnant woman whose husband dies. Ibn Abbas said: "The later of the two terms." Abu Hurayrah said: "When she gives birth, she becomes permissible." Abu Salamah ibn Abdul Rahman went to Umm Salamah, the Prophet’s wife (ﷺ), and asked her about it. Umm Salamah said: Subay‘ah al-Aslamiyyah gave birth half a month after her husband’s death. Two men proposed to her: one young, one elderly. She inclined toward the young man. The elderly man said: "You are not yet permissible." Her family was absent, and he hoped when they arrived, they would prefer him for her. She came to the Messenger of Allah (ﷺ) and mentioned it to him. He said: "You are permissible, so marry whomever you wish" [Narrated by Malik in "Al-Muwatta"]

(1) The statement: "You are permissible, so marry whomever you wish" It is stated in "Al-‘Arf ash-Shadhi": What indicates the non-necessity of guardians’ expression is what is in Malik’s "Muwatta": "Her family was absent, etc." In it, he (peace be upon him) said to her: "You are permissible, so marry whomever you wish, etc." The Hadith is elevated, and it is permissible for her to marry without the guardians’ presence

Khansa (may Allah be pleased with her) narrated: My father married me while I was unwilling, and I was a virgin. I complained about it to the Prophet (ﷺ), and he said: "Do not marry her while she is unwilling" [Narrated by An-Nasa’i in his "Sunan"]. In a narration by Ad-Daraqutni from Ibn Abbas, the Prophet (ﷺ) annulled the marriage of a virgin and a previously married woman whom their father married while they were unwilling, so the Prophet (ﷺ) annulled their marriage

(1) The statement: "From Khansa, etc." Muhammad narrated in "Al-Muwatta," and Abu Dawud, An-Nasa’i, and Ibn Majah narrated Khansa bint Khidham’s Hadith, and in most of them: "She was previously married." It was narrated from Abdullah ibn Yazid ibn Wadi‘ah from Khansa that she was then a virgin. Here, Malik’s narration from Abdul Rahman and Majma‘, that she was previously married, conflicts with Ibn al-Mubarak’s narration from Abdullah that she was a virgin. I say: There is no conflict requiring preference. It is possible that this incident happened to her twice: once when she was a virgin, then when she was previously married. This is easier than rejecting a sound Hadith with this weak excuse, especially since the one saying she was previously married, Abdul Rahman and Majma‘, sons of Yazid, and the one saying she was a virgin is Khansa herself. Their statement is not preferred over hers, taken from "Badhl al-Majhud"

Khansa (may Allah be pleased with her) narrated: My father married me while I was unwilling, and I was a virgin. I complained about it to the Prophet (ﷺ), and he said: "Do not marry her while she is unwilling" [Narrated by An-Nasa’i in his "Sunan"]. In a narration by Ad-Daraqutni from Ibn Abbas, the Prophet (ﷺ) annulled the marriage of a virgin and a previously married woman whom their father married while they were unwilling, so the Prophet (ﷺ) annulled their marriage

(1) The statement: "From Khansa, etc." Muhammad narrated in "Al-Muwatta," and Abu Dawud, An-Nasa’i, and Ibn Majah narrated Khansa bint Khidham’s Hadith, and in most of them: "She was previously married." It was narrated from Abdullah ibn Yazid ibn Wadi‘ah from Khansa that she was then a virgin. Here, Malik’s narration from Abdul Rahman and Majma‘, that she was previously married, conflicts with Ibn al-Mubarak’s narration from Abdullah that she was a virgin. I say: There is no conflict requiring preference. It is possible that this incident happened to her twice: once when she was a virgin, then when she was previously married. This is easier than rejecting a sound Hadith with this weak excuse, especially since the one saying she was previously married, Abdul Rahman and Majma‘, sons of Yazid, and the one saying she was a virgin is Khansa herself. Their statement is not preferred over hers, taken from "Badhl al-Majhud"

Ibn Abbas (may Allah be pleased with them) narrated: A virgin girl came to the Messenger of Allah (ﷺ) and mentioned that her father married her while she was unwilling. The Prophet (ﷺ) gave her the choice [Narrated by Abu Dawud]

(1) The statement: "The Prophet (ﷺ) gave her the choice" This Hadith is evidence that the guardian has no compulsion over a mature woman, even if a virgin, as Abu Hanifah said. Ash-Shafi‘i and Ahmad opposed him, and our companions have this Hadith, taken from "Al-Marqah"

Abu Sa‘id and Ibn Abbas (may Allah be pleased with them) narrated: The Messenger of Allah (ﷺ) said: "Whoever has a child born to him, let him give him a good name and good manners. When he matures, let him marry him. If he matures and is not married and commits a sin, its sin is upon his father" [Narrated by Al-Bayhaqi in "Shu‘ab al-Iman"]

Umar ibn al-Khattab and Anas ibn Malik (may Allah be pleased with them) narrated from the Messenger of Allah (ﷺ): "It is written in the Torah: Whoever has a daughter who reaches twelve years and does not marry her, and she commits a sin, its sin is upon him" [Narrated by Al-Bayhaqi in "Shu‘ab al-Iman"]

(1) The statement: "Its sin is upon him" for his negligence, interpreted as a warning and threat for emphasis. It includes recommended guardianship to reconcile the Hadiths. Guardianship in marriage is of two types: recommended and desirable guardianship, which is over a rational, mature woman, virgin or previously married, and compelling guardianship, which is over a minor female, virgin or previously married, and also a mature insane or enslaved woman, taken from "Al-Marqah" and "Ad-Durr al-Mukhtar"

Ibn Abbas (may Allah be pleased with them) narrated: The Prophet (ﷺ) said: "The prostitutes are those who marry themselves without evidence." The most correct view is that it is stopped at Ibn Abbas [Narrated by At-Tirmidhi]

(1) The statement: "The prostitutes, etc." The evidence means the witness, so without it, it is adultery according to Ash-Shafi‘i and Abu Hanifah. It is stated in "Al-Marqah." In "Umdat ar-Ri‘ayah": Requiring the presence of two witnesses is due to the Hadith: "No marriage except with a guardian and two just witnesses," narrated by Ibn Hibban in his "Sahih." At-Tirmidhi narrated elevated: "The prostitutes are those who marry themselves without evidence," and Abdul Razzaq narrated it stopped at Ibn Abbas. Other Hadiths in this chapter were narrated by Ad-Daraqutni and others, and though some chains are weak, the weakness is compensated by the multiplicity of paths. In "Al-Muwatta": Umar was brought a man in a marriage witnessed only by a man and a woman. Umar said: "This is a secret marriage, and we do not permit it. Had I preceded in it, I would have stoned." This distinguishes marriage from other contracts, which are valid without witnessing, though witnessing in them is recommended or Sunnah. Marriage, however, is not concluded without two witnesses, neither judicially nor religiously. Witnessing the delegation for marriage is not a condition for its validity, but its benefit is proof in case of denial of the delegation, as stated in "Al-Bahr." In "Al-Mabsut": If a man married a woman without witnesses or with one witness, then witnessed afterward, the marriage is not valid, as the condition is witnessing the contract, which was not met. What was witnessed was the acknowledgment of an invalid contract, and acknowledging an invalid contract is not a contract, nor does witnessing it turn the invalid into valid

Jabir (may Allah be pleased with him) narrated from the Prophet (ﷺ): "Any slave who marries without his masters’ permission is a fornicator" [Narrated by At-Tirmidhi, Abu Dawud, and Ad-Darimi]. In this chapter, from Ibrahim, he said: If a slave marries without his master’s permission, his marriage is invalid, but if permission is granted after he married, his marriage is valid. Muhammad narrated in "Al-Athar" and said: We take by it, and what he means by saying: "If permission is granted after he married," is that if what was done is approved, it is permissible, and this is Abu Hanifah’s view

(1) The statement: "He is a fornicator" means a slave’s marriage without the master’s permission is not permissible, as Ash-Shafi‘i and Ahmad said, and the contract does not become valid by approval afterward. Abu Hanifah and Malik said: If approved after the contract, it is valid, as the marriage of a slave, a partially freed slave, a slave dedicated to emancipation, a slave woman, or a slave mother is suspended without the master’s permission. If he approves, it is executed; if he rejects, it is void, due to this Hadith and its interpretation as mentioned by Muhammad in "Al-Athar"

Jabir (may Allah be pleased with him) narrated from the Prophet (ﷺ): "Any slave who marries without his masters’ permission is a fornicator" [Narrated by At-Tirmidhi, Abu Dawud, and Ad-Darimi]. In this chapter, from Ibrahim, he said: If a slave marries without his master’s permission, his marriage is invalid, but if permission is granted after he married, his marriage is valid. Muhammad narrated in "Al-Athar" and said: We take by it, and what he means by saying: "If permission is granted after he married," is that if what was done is approved, it is permissible, and this is Abu Hanifah’s view

(1) The statement: "He is a fornicator" means a slave’s marriage without the master’s permission is not permissible, as Ash-Shafi‘i and Ahmad said, and the contract does not become valid by approval afterward. Abu Hanifah and Malik said: If approved after the contract, it is valid, as the marriage of a slave, a partially freed slave, a slave dedicated to emancipation, a slave woman, or a slave mother is suspended without the master’s permission. If he approves, it is executed; if he rejects, it is void, due to this Hadith and its interpretation as mentioned by Muhammad in "Al-Athar"