Wali's right to marry off a virgin without her consent in different madhahib

Question

Sparked by this question I did some reading up on marrying off young girls. I'm posting unabridged sections from Reliance of the Traveler to give the full context of my question. My question is at the end of the post and concerns what comparable rulings, if any, other madhahib have in these regards. I will post a short summary of the aspects of the quoted text that are relevant to my question under "Summary" at the bottom of the post as well.

Section m3.13 of Reliance of the Traveler reads:

m3.13 Guardians are of two types, those who may compel their female charges to marry someone, and those who may not.

(1) The only guardians who may compel their charge to marry are a virgin bride's father or father's father, compel meaning to marry her to a suitable match (def: m4) without her consent.

(2) Those who may not compel her are not entitled to marry her to someone unless she accepts and gives her permission.

Whenever the bride is a virgin, the father or father's father may marry her to someone without her permission, though it is recommended to ask her permission if she has reached puberty. A virgin's silence is considered as permission.

As for the nonvirgin of sound mind, no one may marry her to another after she has reached puberty without her express permission, no matter whether the guardian is the father, father's father, or someone else.

Section m3.14 is missing in the translation; it's possible that section m3.14 is the two paragraphs starting at "Whenever the bride is a virgin..." in the above quote. Section m3.15 discusses cases where the decision of the guardian and the virgin on who she is to be married to clash with each other:

m3.15 No guardian may marry a woman to some one who is not a suitable match (def: m4) without her acceptance and the acceptance of all who can be guardians (def: m3.7). If the Islamic magistrate is her guardian, he may not under any circumstances marry her to someone who is not a suitable match for her.

If the bride selects a suitor who is not a suitable match for her, the guardian is not obliged to marry her to him. If she selects a suitable match but her guardian chooses a different suitor who is also a suitable match, then the man chosen by the guardian takes precedence if the guardian is one who may lawfully compel her to marry (def: m3.13(1)), while the one she selects takes precedence when the guardian may not lawfully compel her to marry (m3.13(2)).

Sections m4.0 to m4.2 read:

m4.0 (N: The definition of a suitable match should not be misunderstood as a recommendation for whom to marry. It is merely a legal restriction to protect a woman's interests when the father or grandfather of a virgin marry her to someone without her consent (dis: m3.13,15). As for when she wishes to marry someone who is not a suitable match, and her guardian has no objection, there is nothing wrong or offensive in her doing so.)

m4.1 Suitability concerns lineage, religiousness, profession, and being free of defects that permit annulling the marriage contract (def: m7). (N: As for color, it is of no consideration in suitability.)

m4.2 The following are not suitable matches for one another:

(1) a non-Arab man for an Arab woman (0: because of the hadith that the Prophet (Allah bless him and give him peace) said, "Allah has chosen the Arabs above others");

(2) a corrupt man (def: 024.3) for a virtuous woman (0: though it is sufficient for the would-be husband to have given up his wrongdoing);

(3) a man of a lowly profession for the daughter of someone with a higher profession, such as a tailor wanting to marry a merchant's daughter (A: though an Islamic scholar is a suitable match for any level whatever);

(4) or someone with a defect that permits annulling the marriage (def: m7) for someone without such defects. Being wealthy has nothing to do with suitability (0: for money comes and goes, and those with self-respect and intelligence do not take pride in it), nor does being elderly.

Sections m4.3 to m4.5 discuss matters that are irrelevant to my question. Section m7 talks about reproductive defects, insanity, or severe bodily defects/illnesses as being grounds for annulment.

Summary: According to the shafii legal manual Reliance of the Traveler, if the father or grandfather of a virgin is her wali (legal guardian), he may marry her off to someone who is a suitable match without her consent. Any man is a suitable match, barring the listed reasons of unsuitability; in particular, old age and lack of wealth are not barriers to suitability.

Question: What is the fiqh (jurisprudence) in these regards in the other madhahib (schools of law), i.e.:

• can anyone marry off a virgin without her consent?
• who can she not be married off to without her consent?

Answer 1

Quran:

Quran 4:19 O you who have believed, it is not lawful for you to inherit women by compulsion. And do not make difficulties for them in order to take [back] part of what you gave them unless they commit a clear immorality. And live with them in kindness. For if you dislike them - perhaps you dislike a thing and Allah makes therein much good.

Hadith:

The Prophet (ﷺ) said, "A matron should not be given in marriage except after consulting her; and a virgin should not be given in marriage except after her permission." The people asked, "O Allah's Messenger (ﷺ)! How can we know her permission?" He said, "Her silence (indicates her permission)." [Saheeh Bukhari]

The Prophet (ﷺ) said, "A matron should not be given in marriage except after consulting her; and a virgin should not be given in marriage except after her permission." The people asked, "O Allah's Messenger (ﷺ)! How can we know her permission?" He said, "Her silence (indicates her permission). [Saheeh Muslim]

Narrated `Aisha: I said, "O Allah's Messenger (ﷺ)! A virgin feels shy." He said, "Her consent is (expressed by) her silence." [ Saheeh Bukhari ]

Narrated Khansa bint Khidam Al-Ansariya: that her father gave her in marriage when she was a matron and she disliked that marriage. So she went to Allah's Messenger (ﷺ) and he declared that marriage invalid. [Saheeh Bukhari]

A virgin came to the Prophet (ﷺ) and mentioned that her father had married her against her will, so the Prophet (ﷺ) allowed her to exercise her choice. [Sunan Abu Daud]

“A girl came to the Prophet and said: 'My father married me to his brother's son so that he might raise his status thereby.' The Prophet gave her the choice, and she said: 'I approve of what my father did, but I wanted women to know that their fathers have no right to do that.' ” Sunan Ibn Majah

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The complete Shafi position seems to be that a virgin, adult or minor, may be married without her consent by her father and grandfather (marriage would be valid), provided that they marry her to a suitable match. The preferred option however is to seek her consent because of the source material quoted above. A non-virgin can not be married against her consent according to the Shafis. Lack of wealth IS a barrier to suitability, and its listed in your quotation (profession).

Quote from Minhaj Al Talibin on the Shafi position:

A father can dispose as he pleases of the hand of his daughter, without asking her consent, whatever her âge may be, provided she is still a virgin. It is, however, always commendable to consult her as to her future husband ; and her formal consent to the marriage is necessary if she has already lost her virginity.

Where a father disposes of his daughter's hand during her minority, she cannot be delivered to her husband before she attains puberty. In default of the father, the father's father exercises all his powers. Loss of virginity puts an end to the right of disposing of a daughter's hand without her consent ; and there is no différence in this respect between a loss caused by illicit cohabitation and one that is the conséquence of unlawful intercourse.

On the other hand, the right remains intact where the loss has taken place without carnal connection, as for example in conséquence of a fall upon the ground.

Collatéral agnates, such as whole brother, or half brother on the father's side or father's brother, cannot in any way engage the hand of a daughter under-âge ; and a woman who has lost her virginity must manifest her consent in explicit terms, when collatéral agnates give her in marriage. As to an adult virgin, it is enough that she does not oppose the choice of her collatéral agnates.

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The Hanafi position seems to be that an adult woman, virgin or non-virgin, may NOT be married without her consent. A minor may be married without her consent, but unless she is married by the father or grandfather she will have a choice to annul the nikah on attaining puberty before consummation.

Quotes from the Hanafi text Hidayah:

It is not permitted to the wall to force a virgin, who is a major, to marry. Al-Shafil (God bless him) disagrees. He decides the issue on the analogy of a minor girl. The reason is that the minor is unaware of the complexities of nikah due to the lack of experience. It is also for this reason that her father takes possession of the dower (sadaq; mahr)) without her asking him to do so. We maintain that she is a freewoman addressed directly by the communication from the Lawgiver, therefore, no one has authority over her to compel her. The authority over the minor is due to the lack of maturity of thought, which becomes complete upon bulugh (attaining her puberty) on the evidence that the communication from the Lawgiver (the khitab) becomes directed towards her. She is, therefore, just like a young man, and her capicty for being free with respect to marriage is just like her freedom to undertake transactions in her wealth. The father takes possession of her sadaq on the basis of her implied consent for he cannot do so if she forbids it.

The nikah of a minor boy or girl is permitted if they are married away by the wali irrespective of the girl being a virgin or deflowered. The wali here belongs to the asabah (close relatives). Malik (God bless him) disagrees with us with respect to the wali other than the father and grandfather, and he also disagrees about the deflowered minor girl. According to Malik (God bless him), wilayah over a free woman depends upon the need for it, and there is no need here due to the absence of desire for sex, except that the wilayah of the father has been established on the basis of the text and against analogy (therefore it is affirmed). The grandfather does not fall in this category and is not to be linked with the father. ...

He said: If they are married away by the father or the grandfather, that is, the minor boy and the minor girl, they have no option, after they attain puberty. The reason is that these two (relatives) possess an informed opinion and abundant affection, therefore, the contract will become binding if it is concluded by them. It is just as if it was concluded with their consent after they had attained puberty.

If they are married away by someone other than the father and the grandfather, then, each one of them will have the option upon attaining puberty; if they like they can maintain the contract and if they like they can revoke it.

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