Are forced Marriages Permitted in Shafi Madhab?

[justabro]

As for the minor girl, ibn al-Mundhir has stated there is Ijma' that her consent need not be sought because she is obviously not in a position to give consent. Ibn al-Mundhir says that as long as her father marries her to someone suitable, her consent need not be sought. Evidence for this is the marriage of A'isha, her consent was not sought as she was 6. In fact, if you read the narrations, she wasn't even aware what was going on. Ali married his daughter, Umm Kulthum, while still a minor to Umar without seeking her consent.

What evidence does the Shafie Madhab give for their ruling?

There is a wording of the hadith saying, "The matron has more right over herself, and the virgin's consent is sought, and her silence is her consent."

Since it is stated that the matron has more right over herself, it implies the virgin does not. Therefore, seeking her consent is reccomended but not required.

However, Ahmad seems to require it, and he makes the validity of such marriage conditional on her approval.

It should also be pointed out that they only allow for the father in particular to marry off the girl without consent, be she minor or mature.

Also how do they explain the hadith where the Prophet SAWS allowed her to annul the marriage?

If we take a close look at the hadith, it also says, “O Messenger of Allaah, I have accepted what my father did, but I wanted to prove something to other women.” (Reported by al-Nisaa’i, 3217). I think it speaks for itself.

Yes, but it is not authentic. According to Abu Dawud and al-Bayhaqi, the hadith is mursal.

[Striving2Struggle]

Since it is stated that the matron has more right over herself, it implies the virgin does not. Therefore, seeking her consent is reccomended but not required.

Can't it be argued that when Muhammad SAW stated "more right over herself" it refers to the Wali having to receive explicit permission from matron, as in she has to say a straightforward "yes". While in the case of the virgin girl anything other than a straightforward "no" is satisfactory.

Btw does mursal mean weak or fair, because Islam-QA is known to be quite strict with the hadith they use and many claim they tend to lean towards Hanbali Madhab, but they say forced marriages are forbidden while another users say it is permitted in that Madhab.

According to the second poster, these types of forced marriages are permitted in Maliki and Hanbali Madhab, yet Islam-QA went against it. is there disagreement on this even within these two schools?

[Salahadeen]

She can always apply for a divorce through the use of an Imam if she has another valid reason (ie husband is abusing her or is not fulfilling her Islamic rights over him). So it would be incorrect to say she is "stuck with him forever".

The Hanafis are extremely strict in this matter. Getting a khula in hanafi madhab is very difficult for a woman.

[Abu_Abdallah]

al-Salamu 'Alaikum,

What follows are just the views of the people of knowledge, excl. the evidences and arguments. Insha'Allah adressed later.

First, the most sound view in my opinion is that of Shaykh al-Islam Ibn Taymiyyah.

He permits the forced marriage of under age virgins, in agreement with the consensus of the Ummah and agreeable to the Qur'an, the Sunnah and the opinions of the Companions. He is against the forced marriage of a virgin (bikr) is she is an adult (baligh), considering her permission (either silent or explicit) imperative to be valid. As for the non virgin (thayyib), there is no difference among the scholars that she should grant permission by expressing it clearly. And this is the most fair understanding, most correct, if you ask me.

One sidenote: in some individual cases - I believe - forced marriage is necessary, but who cares what my opinion is. Just want you to let you know what Ibn Taymiyyah thought, since I believe he delved in this subject the most and dealt with it profoundly (see his: Fatawa al-Kubra, Kitab al-Nikah).

As for the rest:

First.

The differences concerning a woman that can be forced into marriage is actually about two types of women who can have each two characteristics, making up ‘four types’:

1. The virgin under age.
2. The adult virgin.
3. The non-virgin under age.
4. The adult non-virgin.

Only 1, 2 and 4 are relative in most discussions, since the 3rd, the non-virgin under age, is less common type of woman as reflected by the absence of debate concerning her.

Second.

The person who is in the position to enforce the woman in most books is: the father. Some add the grandfather or another, in the absence of the first.

So the issue that is dealt with mostly is:

Can a father enforce his own daughter into marriage against her will? If he can, any type of daughter?

Let us name the scholars of the past and the views of the Madhhabs. First: wherein they agreed. Then, second: the disagreements between the jurists.

The people of knowledge agreed upon the following:

No one, no father or anyone else, can force the 4th type of woman into marriage, that is: a non-virgin who is an adult can not be forced to marry a man against her will, even if her father orders it.

The people of knowledge differed upon forcing the virgin into marriage by her father, exercising their investigation from two perspectives: is she a child or an adult, i.e. is she ghair mukallaf or mukallaf ?

First, let us mention those who do not differentiate between the age of the woman:

The Seven Jurists of Madinah: Sa’id b. al-Musayyab, ‘Urwa b. al-Zubayr, al-Qasim b. Muhammad, ‘Ubaydallah b. ‘Abdallah b. ‘Utba b. Mas’ud, Sulayman b. Yasar, Kharijah b. Zayd b. Thabit and Abu Bakr b. ‘Abd al-Rahman all opinion that the father is entitled to force his virgin daughter, whether adult or child, without her permission. If the woman is a non-virgin (adult or child) they say not. The Companion ‘Abdallah b. ‘Umar says this too.

‘Ata b. Abi Rabah, Ibrahim al-Nakha’i, al-Sha’bi (according to one riwayah), Ibn Abi Layla, al-Layth, Malik, al-Shafi’i, Ishaq b. Rahawayh, Ahmad (according to one riwayah) and Isma’il al-Qadi agree: a virgin daughter can be forced into marriage without her permission, i.e. against her will, by the father who is most entitled to be her guardian.

All these scholars say this concerning the virgin, irrespective if she’s an adult or child (add: al-Shafi’i according to an opinion gives the grandfather the same authority as the father, i.e. he may forces his virgin daughter also into marriage).

Third.

Second, those who differentiate when it comes to the age of the woman:

Abu Hanifah who agrees with the aforementioned scholars when it comes to the child virgin, but disagrees when it concerns the adult virgin; the grown up virgin has to grant permission and can not be forced into marriage against her consent. Ahmad agrees with that, according to another transmission.

Ibn Shihab al-Zuhri, Qatada b. Di’ama al-Sadusi, ‘Ubaydallah b. al-Hasan, Abu ‘Ubayd, Abu Thawr and the Ashab al-Ra’y permit the forced marriage of a child virgin (nothing is said about an adult virgin when it comes to these scholars).

Al-Sha’bi (according to the other riwayah), al-Awza’i, Sufyan al-Thawri, Abu Thawr, Abu ‘Ubayd, al-Hasan b. Hayy, the Zahirites and Ibn al-Mundhir do not allow the forced marriage of an adult virgin.

Fourth.

The conclusion so far is: the people of knowledge agree that a virgin who is under age can be forced into marriage by her guardian, i.e. the father (and grandfather, cf. al-Shafi’i). They disagree about the virgin who is an adult. Whoever violates the agreement (ijma’) the scholars reached, is transgressing a valid proof; it is considered shadd to oppose it.

Side point: the scholars who permit the enforcing of an adult virgin into marriage by her father, they do prefer her consent but do not see it as a condition for its soundness. So its preferable to receive her consent, but it is not necessary.

I believe brother justabro informed this. Indeed, one spoke well when he mentioned Ibn al-Mundhir's statement from the Kitab al-Ijma', wherein explicitly is stated that there is an Ijma'.

Malik, Sufyan al-Thawri, al-Shafi’i, Ishaq b. Rahawayh, Ahmad, Abu ‘Ubayd and Abu Thawr – in fact all scholars by agreement – do not allow the forced marriage of a non-virgin woman. Despite the early view of al-Hasan al-Basri, who does believe that a father may enforce his daughter as a virgin and non-virgin, none differed with this consensus (ijma’). Whoever violates this agreement (ijma’) the scholars reached, is transgressing a valid proof; it is also considered shadd to oppose it.

These are the opinions. I left out the issue of father, grandfather.. When is a woman under age and when not according to Ahmad (9 years) and others.. The option to end the marriage when reaching adulthood.. Whether she is a thayyib (and therefore entitled to permit or decline) because of a previous marriage or zina or rape.. Etc.

wa-Allahu A'lam.

[Abu_Abdallah]

In the Maliki Madhhab a father is allowed to force his child, a virgin daughter, to marry. This is the view of the Seven Jurists of Madinah and the people of Madinah, and by implication also the view of Imam Malik.

Imam Ahmad opinioned the same, according to one riwayah and it has been transmitted also from Imam al-Shafi'i (refer to: al-Bayhaqi, Sunan al-Kubra 7:116), though elsewhere I've read that he opposed it.

As for the Fiqh of this issue (al-wali al-mujbir, i.e. the wali that forces), well: this is a typical issue you better teach people only if there is something actually happening, i.e. someone wants to forces his daughter to marry. And it fit also in 'Ali's wonderfull saying that you dont tell people everything, for else they will declare others liars etc., simply because they never heard of it.

Bottomline: yes, there is a strong argument from the Shar'i perspective that supports the wali forcing a daughter to marry someone, yet the other side - the majority - views this to be wrong.

wa-Allahu A'lam.

'..the wali forcing a daughter to marry someone' - this means: the adult virgin, not any virgin. The majority - according to the modern author of a book - says that the majority of the scholars oppose this, i.e. the forcing of an adult virgin.

Yet, most opinions ascribed to the mujtahidin and other eminent scholars indicate the opposite. See my previous post or refer to a khilaf book, for example al-ishraf of Ibn al-Mundhir.

wa-Allahu A'lam.

[Abu'l Qa'qaa']

My question is why is it permitted? Is there any reason a father should be allowed? Can someone explain the understanding behind this hukm?

[Striving2Struggle]

al-Salamu 'Alaikum,

What follows are just the views of the people of knowledge, excl. the evidences and arguments. Insha'Allah adressed later.

First, the most sound view in my opinion is that of Shaykh al-Islam Ibn Taymiyyah.

He permits the forced marriage of under age virgins, in agreement with the consensus of the Ummah and agreeable to the Qur'an, the Sunnah and the opinions of the Companions. He is against the forced marriage of a virgin (bikr) is she is an adult (baligh), considering her permission (either silent or explicit) imperative to be valid. As for the non virgin (thayyib), there is no difference among the scholars that she should grant permission by expressing it clearly. And this is the most fair understanding, most correct, if you ask me.

One sidenote: in some individual cases - I believe - forced marriage is necessary, but who cares what my opinion is. Just want you to let you know what Ibn Taymiyyah thought, since I believe he delved in this subject the most and dealt with it profoundly (see his: Fatawa al-Kubra, Kitab al-Nikah).

As for the rest:

First.

The differences concerning a woman that can be forced into marriage is actually about two types of women who can have each two characteristics, making up ‘four types’:

1. The virgin under age.
2. The adult virgin.
3. The non-virgin under age.
4. The adult non-virgin.

Only 1, 2 and 4 are relative in most discussions, since the 3rd, the non-virgin under age, is less common type of woman as reflected by the absence of debate concerning her.

Second.

The person who is in the position to enforce the woman in most books is: the father. Some add the grandfather or another, in the absence of the first.

So the issue that is dealt with mostly is:

Can a father enforce his own daughter into marriage against her will? If he can, any type of daughter?

Let us name the scholars of the past and the views of the Madhhabs. First: wherein they agreed. Then, second: the disagreements between the jurists.

The people of knowledge agreed upon the following:

No one, no father or anyone else, can force the 4th type of woman into marriage, that is: a non-virgin who is an adult can not be forced to marry a man against her will, even if her father orders it.

The people of knowledge differed upon forcing the virgin into marriage by her father, exercising their investigation from two perspectives: is she a child or an adult, i.e. is she ghair mukallaf or mukallaf ?

First, let us mention those who do not differentiate between the age of the woman:

The Seven Jurists of Madinah: Sa’id b. al-Musayyab, ‘Urwa b. al-Zubayr, al-Qasim b. Muhammad, ‘Ubaydallah b. ‘Abdallah b. ‘Utba b. Mas’ud, Sulayman b. Yasar, Kharijah b. Zayd b. Thabit and Abu Bakr b. ‘Abd al-Rahman all opinion that the father is entitled to force his virgin daughter, whether adult or child, without her permission. If the woman is a non-virgin (adult or child) they say not. The Companion ‘Abdallah b. ‘Umar says this too.

‘Ata b. Abi Rabah, Ibrahim al-Nakha’i, al-Sha’bi (according to one riwayah), Ibn Abi Layla, al-Layth, Malik, al-Shafi’i, Ishaq b. Rahawayh, Ahmad (according to one riwayah) and Isma’il al-Qadi agree: a virgin daughter can be forced into marriage without her permission, i.e. against her will, by the father who is most entitled to be her guardian.

All these scholars say this concerning the virgin, irrespective if she’s an adult or child (add: al-Shafi’i according to an opinion gives the grandfather the same authority as the father, i.e. he may forces his virgin daughter also into marriage).

Third.

Second, those who differentiate when it comes to the age of the woman:

Abu Hanifah who agrees with the aforementioned scholars when it comes to the child virgin, but disagrees when it concerns the adult virgin; the grown up virgin has to grant permission and can not be forced into marriage against her consent. Ahmad agrees with that, according to another transmission.

Ibn Shihab al-Zuhri, Qatada b. Di’ama al-Sadusi, ‘Ubaydallah b. al-Hasan, Abu ‘Ubayd, Abu Thawr and the Ashab al-Ra’y permit the forced marriage of a child virgin (nothing is said about an adult virgin when it comes to these scholars).

Al-Sha’bi (according to the other riwayah), al-Awza’i, Sufyan al-Thawri, Abu Thawr, Abu ‘Ubayd, al-Hasan b. Hayy, the Zahirites and Ibn al-Mundhir do not allow the forced marriage of an adult virgin.

Fourth.

The conclusion so far is: the people of knowledge agree that a virgin who is under age can be forced into marriage by her guardian, i.e. the father (and grandfather, cf. al-Shafi’i). They disagree about the virgin who is an adult. Whoever violates the agreement (ijma’) the scholars reached, is transgressing a valid proof; it is considered shadd to oppose it.

Side point: the scholars who permit the enforcing of an adult virgin into marriage by her father, they do prefer her consent but do not see it as a condition for its soundness. So its preferable to receive her consent, but it is not necessary.

I believe brother justabro informed this. Indeed, one spoke well when he mentioned Ibn al-Mundhir's statement from the Kitab al-Ijma', wherein explicitly is stated that there is an Ijma'.

Malik, Sufyan al-Thawri, al-Shafi’i, Ishaq b. Rahawayh, Ahmad, Abu ‘Ubayd and Abu Thawr – in fact all scholars by agreement – do not allow the forced marriage of a non-virgin woman. Despite the early view of al-Hasan al-Basri, who does believe that a father may enforce his daughter as a virgin and non-virgin, none differed with this consensus (ijma’). Whoever violates this agreement (ijma’) the scholars reached, is transgressing a valid proof; it is also considered shadd to oppose it.

These are the opinions. I left out the issue of father, grandfather.. When is a woman under age and when not according to Ahmad (9 years) and others.. The option to end the marriage when reaching adulthood.. Whether she is a thayyib (and therefore entitled to permit or decline) because of a previous marriage or zina or rape.. Etc.

wa-Allahu A'lam.

JazakhAllah Khair acki, I was wondering if you further clarify for me the views of the 4 Madhabs in this regard; in particularly the Hanbali and Shafi Madhabs as I believe the Hanafi and Maliki positions have already been discussed. Correct me if I'm wrong but here is what I get from the above posts:

Malikis rely heavily on the 7 jurists of Madinah so I would think they deem it permissible irregardless of age; while the Hanafis deem it impermissable with an adult virgin. Ibn Taymiyyah deeming it impermissible in the case of an adult virgin would probably explain why Islam-QA and other modern day Salafis are also against it. That leaves the Shafi and Hanbali view

Abu Hanifah who agrees with the aforementioned scholars when it comes to the child virgin, but disagrees when it concerns the adult virgin; the grown up virgin has to grant permission and can not be forced into marriage against her consent. Ahmad agrees with that, according to another transmission.

Sorry if I sound ignorant but when you say Ahmad are you referring to Ahmad ibn Hanbal? Reason I ask is that in your previous post on the 1st page you said that Imam Ahmad opinioned the same as Imam Malik; while in your last post you said he agreed with Abu Hanifah.

In the Maliki Madhhab a father is allowed to force his child, a virgin daughter, to marry. This is the view of the Seven Jurists of Madinah and the people of Madinah, and by implication also the view of Imam Malik.

Imam Ahmad opinioned the same, according to one riwayah and it has been transmitted also from Imam al-Shafi'i (refer to: al-Bayhaqi, Sunan al-Kubra 7:116), though elsewhere I've read that he opposed it.

Also if Imam Shafi transmitted the riwayah but elsewhere opposed it; what is the current opinion of Shafi scholars. Are they split?

Finally in regards to Ijma, seeing as how the Classical Scholars did not come to a consensus about the status of the adult Virgins right to refuse; while most all current modern-day scholars are against most types of forced-marriages, wouldn't it be recommended to follow the Ijma of today's scholars in saying that these types of forced marriages are impermissible, unless like you said it is a rare, desperate situation.

In other words can we follow the Ijma of the majority of modern-day scholars on this issue if the Classical Scholars disagreed amongst themselves.?

[justabro]

Can't it be argued that when Muhammad SAW stated "more right over herself" it refers to the Wali having to receive explicit permission from matron, as in she has to say a straightforward "yes". While in the case of the virgin girl anything other than a straightforward "no" is satisfactory.

Yes, that is a valid interpretation, and the one favored by those who disallow forced marriage.

Btw does mursal mean weak or fair, because Islam-QA is known to be quite strict with the hadith they use and many claim they tend to lean towards Hanbali Madhab, but they say forced marriages are forbidden while another users say it is permitted in that Madhab.

Mursal means weak. Islam-QA generally makes taqlid of Sh. al-Albani in such matters. With all my respect for Sh. al-Albani, he is not infallible.

According to the second poster, these types of forced marriages are permitted in Maliki and Hanbali Madhab, yet Islam-QA went against it. is there disagreement on this even within these two schools?

There are two narrations within the Hanbali madhhab, but it seems disallowance of this practice is the preferred one.

[justabro]

My question is why is it permitted? Is there any reason a father should be allowed? Can someone explain the understanding behind this hukm?

The reasoning is that the wali is looking out for the best interests of the girl, something that the girl may not be in a position to recognize for herself, especially if she is a virgin and therefore having little or limited experience with men.

[justabro]

Finally in regards to Ijma, seeing as how the Classical Scholars did not come to a consensus about the status of the adult Virgins right to refuse; while most all current modern-day scholars are against most types of forced-marriages, wouldn't it be recommended to follow the Ijma of today's scholars in saying that these types of forced marriages are impermissible, unless like you said it is a rare, desperate situation.

In other words can we follow the Ijma of the majority of modern-day scholars on this issue if the Classical Scholars disagreed amongst themselves.?

(1) I doubt there is such an ijma'
(2) Such an ijma' is almost impossible to prove
(3) i believe disallowing this practice is the strongest view

I agree with Abu Abdallah that in rare cases, it may be in the girl's best interest. You will occasionally find girls who obstinately refuse fit suitors without reason and thus stay unmarried till a very late age. The best way to deal with such a situation is for the parents to gently advise her, but this is not always effective.