Nasai

Hadith Commentary:
Whether she is young or old, this is the view of Imam Bukhari rahimahullah and some of the Ahl al-Hadith.
However, most scholars have said—and in fact, there is consensus on this—that the father can contract the marriage of a young virgin (i.e., a minor girl), and there is no need to ask her permission. As for a previously married adult woman (thayyib balighah), her marriage is not valid without her consent, by agreement—not for the father nor for any other guardian.
Now, regarding the case of a virgin minor and a previously married minor, there is a difference of opinion.
According to the Hanafis, permission should be sought even from a virgin minor, while Imam Malik, Imam Shafi'i, and our Imam Ahmad ibn Hanbal rahimahumullah are of the view that the father does not need to seek her permission, and likewise the grandfather if the father is not present.
The hadith supports the view of seeking permission, and Imam Shawkani has declared this to be the position of the Ahl al-Hadith. However, as for a previously married minor, Imam Malik rahimahullah and Imam Abu Hanifah rahimahullah say that the father can contract her marriage without seeking her permission, while Imam Shafi'i, Imam Abu Yusuf, and Imam Muhammad rahimahumullah say that it is necessary to seek her consent, because being previously married, she is less shy. In any case, if the marriage of a minor woman is contracted and her permission is also sought, then after reaching puberty, she retains the right of choice.

Hadith Commentary:

A judge who issues a verdict permitting such a lie and trickery will be deserving of the severest punishment before Allah.
May Allah protect us from such trickery.
Ameen.

Hadith Commentary:
1.
Imam Bukhari rahimahullah exposes the deceit of schemers from another angle.
In the first hadith, he mentioned a notorious trick involving an innocent virgin, and now he describes a scheme of deception involving a previously married woman: if a person presents two false witnesses in court claiming that he married a certain woman with her consent, and the court, upon hearing the testimony, rules in favor of the man, then that previously married woman becomes his wife.
It would be lawful (halal) for him to have intercourse with her, and in the Hereafter there would be no accountability for him, because in such circumstances the court’s decision is enforced both outwardly and inwardly. However, such a deceitful person, the false witnesses, and the judge who issues a verdict permitting this are all deserving of the severest punishment in the sight of Allah.
These people claim that although there was no prior marriage, the judge’s decision is tantamount to marriage, meaning the judge possesses the guardianship (wilayah) of marriage and, by exercising his authority, has issued a verdict that is binding in every respect.
2.
According to them, there are two types of transactions:
One is unrestricted property (amlaak mursalā), and the other is contracts and the like.
In the second category, the judge’s decision is enforced both outwardly and inwardly, whereas the Messenger of Allah sallallahu alayhi wa sallam has said:
“When I pass judgment in someone’s favor based on his clever speech, then I am in fact cutting off a piece of the Fire for him.”
This unequivocal statement of the Messenger of Allah sallallahu alayhi wa sallam applies to both types of transactions. Therefore, a judicial verdict may be outwardly enforced to resolve a dispute, but to enforce it inwardly is sheer obstinacy.
In reality, such verdicts are the very cause of Islam’s defamation and provide grounds for public ridicule. If only these scheming individuals would come to their senses and, instead of defending falsehood, would adopt the truth.

Hadith Commentary:
1.
Imam Bukhari rahimahullah, in this chapter heading, has exposed the cunning, deceit, and trickery of those who resort to legal stratagems (hiyal). According to them, if someone presents false witnesses regarding an innocent virgin girl and obtains a court verdict in his favor, then that virgin girl becomes his wife, and there will be no accountability for this "fornication" before Allah Ta'ala. However, according to the hadith, the girl's consent is necessary for marriage (nikah), and in addition, the approval and consent of the guardian (wali) is also recognized as essential.
But in a marriage based on deceit through legal stratagem, neither the guardian's permission is obtained nor is the girl's consent considered; rather, by presenting two false witnesses and obtaining a court verdict, the innocent girl is made a wife.
Perhaps, according to them, for such a subsidiary marriage, the guardian's permission and the girl's consent are not necessary.
They have also investigated a narration referenced from Shams al-A'immah al-Sarakhsi's "al-Mabsut," the details of which are as follows:
A person presented two false witnesses before Ali radi Allahu anhu, claiming that he had married a certain woman. Ali radi Allahu anhu, based on the testimony of the witnesses, gave a verdict of marriage. The woman, for the sake of chastity, submitted:
"O Commander of the Faithful (Amir al-Mu'minin) radi Allahu anhu! I have absolutely no marriage with this man; rather, these witnesses are completely false. But if this is your verdict, then I accept your decision and demand that you now perform my marriage contract (nikah) with him so that I may become truly lawful for him."
Ali radi Allahu anhu replied:
"Based on the testimony of these two witnesses, the verdict of marriage I have given is itself in place of the marriage contract; therefore, there is no need for a new marriage contract."
Regarding this narration, Hafiz Ibn Hajar rahimahullah has ruled that it is not established at all.
Even if it were established, it is mawquf (a statement of a Companion).
(Fath al-Bari: 12/428)
That is, what status does this mawquf narration have in comparison to a marfu' hadith narrated from the Messenger of Allah sallallahu alayhi wa sallam?
2.
In any case, all these supports of the legal tricksters are like a spider's web.
They have no connection with reality.
And Allah is the One whose help is sought.

Hadith Commentary: Benefits and Issues: (Aym)
The original meaning of (Aym) is a woman without a husband, as is stated in the command of Allah the Exalted:
﴿وَأَنْكِحُوا الْأَيَامَى مِنْكُمْ﴾ (“Marry off those among you who are single [without spouses]”)
But in the ahadith mentioned in this chapter, what is meant by this term is a woman who is married and, after living with her husband, for some reason—whether due to the husband’s death, divorce, or khul‘—has become without a husband.
In some narrations, she is referred to as (al-thayyib).
Regarding such a woman, guidance has been given that her marriage should not be arranged without knowing her opinion and consent, and it is necessary that she express her opinion or consent either verbally or through a clear indication.
And regarding a virgin girl, it has been instructed that her marriage should not be conducted without her permission.
However, for young virgin girls who are characterized by modesty and shyness and are not outspoken or open, it is difficult for them to give permission verbally or by gesture; therefore, for their permission, their silence or any sign or indication of their consent is sufficient.
And this is clear:
Only that girl can express her consent verbally or through silence who has reached the age of understanding and discernment,
and possesses the ability to think and comprehend, and understands the purpose and meaning of marriage. But if a girl is still lacking the ability to think and understand regarding marriage and, due to some necessity or benefit, her marriage needs to be arranged—if a very good and suitable match is found and the guardian (wali) is well-wishing and responsible, not selfish or greedy for worldly gain, but rather wishes to marry her off out of a sense of her welfare and goodness—then he may decide on his own according to his well-intentioned discretion.

Explanation:
1:
Consent here means explicit permission.

2:
By "virgin" is meant a mature (balighah) virgin.

3:
In this case, explicit permission is not required; silence is sufficient because a virgin is very shy, and generally, she does not speak in such matters but remains silent.

4:
The evidence of these people is the narration of Ibn Abbas «أن جارية بكراً أتت النبي ﷺ فذكرت أن أباها زوجها وهي كارهة فخيرها النبي ﷺ».

5:
These people have deduced from the contrary implication (mafhum mukhalafah) of the hadith of Ibn Abbas, which is mentioned ahead «الأیم أحق بنفسہامن ولیہا». The contrary implication of this hadith is that the guardian (wali) of a virgin has more right over her than she has over herself.

Takhrij:
«أخرجه البخاري، النكاح، باب لا ينكح الأب وغيره البكر والثيب إلا برضاهما، حديث:5136، ومسلم، النكاح، باب استئذان الثيب في النكاح بالنطق.....، حديث:1419.»©Explanation:
➊ This hadith establishes that, in the view of the Shariah, a woman holds great importance. The woman who, before Islam, was not given any particular status in society—Islam raised her from degradation to an elevated position and doubled her significance. In matters of marriage, not only was she not consulted, but she was not even permitted to say anything regarding herself. The head of the family or guardian would marry her off to whomever they wished, according to their own will.

➋ The Muhammadan Shariah granted the woman her rightful social status and position, and commanded the guardians that the previously married woman (thayyib) must be consulted, and the virgin (bikr) must have her permission sought.

➌ The meaning of not marrying off a previously married woman without her consent and consultation is not that she can contract her own marriage without a guardian (wali); rather, the intent is that the guardian should contract her marriage under his guardianship, with her consultation and consent.