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Text and translation
English translation
1109. Abū Hurairah narrated that the Messenger of Allāh ﷺ said: “An orphan is to be consulted about herself, then if she is silent that is her permission, and if she refuses, then do not authorize it (the marriage) for her” (meaning: when she attains the age of puberty and refuses it.) (Ḥasan)
(He said:) There are narrations on
this topic from Abū Mūsā, Ibn ‘Umar (and ‘Āishah).
Abū ‘Āisā said: The Ḥadīth of Abū Hurairah is a Ḥasan Ḥadīth.
The people of knowledge differ over (the rules governing about) giving the orphan girl in marriage. Some of the people of knowledge held the view that when the orphan girl is given in marriage, the consummation is postponed until she attains the age of responsibility. Then, when she attains the age of responsibility, it is up to her to permit the wedding or annul it. This is the saying of some of the Tābi‘in and others.
Some of them said: It is not allowed to give the orphan girl in marriage until she attains the age of responsibility, and she is not allowed a choice about the wedding. This is the view of Sufyān Ath-Thawrī Ash-Shāfi‘ī, and others among the people of knowledge.
Ahmad and Ishāq said that when the orphan girl reaches nine years of age, and she is given in marriage and she approves, then the marriage is allowed, and she does not have a choice to permit or to annul it when she reaches puberty. They argued using the Ḥadīth of ‘Āishah that the Prophet ﷺ consummated his marriage with her when she was nine years of age,[1] and ‘Āishah has said: “When a girl reaches nine years of age then she is a woman.”[2]
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Footnotes
1
[1] “Āishah had reached puberty at nine years of age.” (Tuhfat Al-Ahwadhi).
2
[2] “She is judged as having reached womanhood because at that time she has attained the perceptions and discernment to know what is beneficial or harmful for herself, and Allāh Most High knows best.” (Tuhfat Al-Ahwadhi).
Commentary
When a girl who attains the age that she is wise enough to understand the matters of matrimony, taking her consent is necessary. If she gives her consent and the marriage takes place, later on she has no choice of revoking her marriage. If the marriage takes place at the age when she is a minor or before the age of understanding the matters of matrimony, if her consent is taken, it carries no weight. In this situation the girl has the right of keeping or revoking her agreement to the marriage.
