What is the Explanation of Consent of a Virgin and Non-Virgin in the Context of Marriage?
Answered by Mawlana Ilyas Patel
Question
I am a non-Muslim and learning Islam.
One hadith came across me, and I could not understand it; I also searched online to find its commentary but could not find it online.
Abu Huraira (Allah be pleased with him) narrates from the Prophet (Allah bless him and give him peace); he said, “A virgin should not be married till she is asked for her consent, and the non-virgin should not be married till she is asked whether she agrees to marry or not.” It was asked, “O Allah’s Messenger! How will she (the virgin) express her consent?” He said, “By keeping silent.”
Some people say that if a virgin is not asked for her consent and she is not married, then a man, by playing a trick, presents two false witnesses that he has married her with her consent, and the judge confirms his marriage as a true one, and the husband knows that the witnesses were false ones, then there is no harm for him to consummate his marriage with her and the marriage is regarded as valid. [Bukhari]
Answer
In the Name of Allah, the Most Merciful and Compassionate
I pray you are in good faith and health. Thank you for your question.
I commend you for seeking guidance and the purpose of our existence.
There are thousands of prophetic sayings. Some can be easy to understand, and some need context, guidance, and explanation like the one asked.
Abu Huraira (Allah be pleased with him) narrates from the Prophet (Allah bless him and give him peace) said, “A virgin should not be married till she is asked for her consent, and the non-virgin should not be married till she is asked whether she agrees to marry or not.” It was asked, “O Allah’s Messenger! How will she (the virgin) express her consent?” He said, “By keeping silent.”
Some people say that if a virgin is not asked for her consent and she is not married, then a man, by playing a trick, presents two false witnesses that he has married her with her permission. The judge confirms his marriage as true, and the husband knows that the witnesses were false; there is no harm for him to consummate his marriage with her, and the marriage is regarded as valid
[Bukhari]
Commentary of the Hadith
If a virgin is to be married, one has to ask for her consent and permission. However, her verbal consent is not necessary. Her remaining quiet and not objecting to the marriage will be considered her acceptance.
If it is a non-virgin who was married before, her verbal consent is necessary.
Imam Bukhari (Allah have mercy on him) quotes that according to some scholars, if a woman is tricked into being married by someone who goes to a judge and falsely presents two witnesses and the judge, based on the presence of witnesses, and not looking into the false claim, allows the marriage, then the marriage will be regarded as valid.
Commentary of the Quote
According to Imam Abu Hanifa (Allah have mercy on him), if a person made a claim in front of a Sharia judge and presented two false witnesses, and according to the investigation of the judge, they were deemed honest and truthful, i.e., he does not find them to be false. Based on this, he issued a decree of marriage, then it will be applied legally and religiously with three conditions:
- The person or item regarding whom the judgment will be made is worthy of being accepted as such
- The judge is unaware of the actual reality
- The judgment of the judge is based on witnesses and not on false oaths
- Legally (dhahiran), i.e., the judge will now confirm marriage between the two, and the man will have to fulfill her rights due, like residence, expenses, etc., and,
- Religiously (batinan), i.e., the man can consummate the marriage, the children will have an established lineage, etc.
However, this person has taken a big step in committing a major sin this way, knowing it to be impermissible.
[Ibn Hajar, Fath al-Bari; Palanpuri, Tuhfat al-Qari]
I would like you to go through the valuable answers and links below. You will receive guidance and direction in sha Allah.
Related
- New to Islam Reader: A Trusted Collection of Resources for Converts
- How Do I Continue After Being Forced Into Marriage With a Despicable Man?
- There is a big difference between love & arranged marriages, or so – IslamQA
- Divorced Woman Marrying without Her Guardian’s Approval (daruliftaa.com)
- Etiquette of Marriage: A Comprehensive SeekersGuidance Reader
- Love, Marriage, and Relationships in Islam: All Your Questions Answered
Wassalam,
[Mawlana] Ilyas Patel
Checked and Approved by Shaykh Faraz Rabbani
وَقَالَ الْكِرْمَانِيُّ صُوَرُ الْأَوَّلِ فِي الْبِكْرِ وَالثَّانِي فِي الثَّيِّبِ وَالثَّالِثِ فِي الصَّغِيرَةِ إِذْ لَا يُتْمَ بَعْدَ احْتِلَامٍ وَفِي الْأَوَّلَيْنِ ثَبَتَ الرِّضَا بِالشَّهَادَةِ إِذَا كَانَ ذَلِكَ قَبْلَ الْعَقْدِ وَفِي الثَّالِثِ ثَبَتَ بِالِاعْتِرَافِ أَوْ أَنَّهُ بَعْدَ الْعَقْدِ وَقَعَ ذَلِكَ فَحَاصِلُ الْفُرُوعِ الثَّلَاثَةِ وَاحِدٌ وَهُوَ أَنَّ حُكْمَ الْحَاكِمِ يَنْفُذُ ظَاهِرًا وَبَاطِنًا وَيُحَلِّلُ وَيُحَرِّمُ وَفَائِدَةُ إِيرَادِهَا الْمُبَالَغَةَ فِي التَّشْنِيعِ لِمَا فِيهِ مِنْ حَمْلِ الزَّوْجِ فِي الثَّلَاثَةِ عَلَى الْإِقْدَامِ عَلَى الْإِثْمِ الْعَظِيمِ مَعَ الْعلم بِالتَّحْرِيمِ وَالله أعلم
Mawlana Ilyas Patel is a traditionally-trained scholar who has studied in the UK, India, Pakistan, Syria, Jordan, and Turkey. He started his early education in the UK. He went on to complete the hifz of the Quran in India, then enrolled in an Islamic seminary in the UK, where he studied the secular and ‘Aalimiyya sciences. He then traveled to Karachi, Pakistan. He has been an Imam in Rep of Ireland for several years. He has taught hifz of the Quran, Tajwid, Fiqh, and many other Islamic sciences to children and adults onsite and online extensively in the UK and Ireland. He taught at a local Islamic seminary for 12 years in the UK, where he was a librarian and a teacher of Islamic sciences. He currently resides in the UK with his wife. His interest is a love of books and gardening.
