❖ Question:
Does the marriage of a previously married woman (thayyib) take place without the consent of her guardian (walī)?
Source: Fatāwā Amunpuri by Shaykh Ghulam Mustafa Zaheer Amunpuri
✿ Answer:
Whether the woman is a virgin (bikr) or previously married (thayyib), marriage does not take place without the permission of her walī. However, a thayyib has greater say regarding her marriage compared to a virgin. This does not mean that a thayyib can marry without the permission of her walī.
❀ Sayyidunā ʿAbdullāh bin ʿAbbās رضي الله عنهما narrated that the Messenger of Allah ﷺ said:
الثيب أحق بنفسها من وليها والبكر تستأمر وإذنها سكوتها
“A previously married woman has more right concerning herself than her guardian, and a virgin is asked for permission, and her silence is her consent.”
(Ṣaḥīḥ Muslim: 1431)
Another narration states:
ليس للولي مع الثيب أمر واليتيمة تستأمر وصمتها إقرارها
“The walī has no authority over a previously married woman, and the virgin is consulted, and her silence is her approval.”
❀ Imām Ibn Ḥibbān رحمه الله explained:
The meaning is that a thayyib may choose whom she prefers among the suitors, but this does not mean that the contract of nikāḥ is in her hands instead of her walī. The authority of contracting nikāḥ remains with the guardians.
(Ṣaḥīḥ Ibn Ḥibbān, under ḥadīth: 4087)
❀ Imām al-Tirmidhī رحمه الله clarified:
Some people argued from this ḥadīth that a marriage is valid without the permission of a walī, but this is incorrect. This is because other authentic narrations from Ibn ʿAbbās رضي الله عنه confirm that the Prophet ﷺ said: “There is no nikāḥ without a walī.” (Sunan Ibn Mājah: 1880 – sanad ḥasan, ṣaḥīḥ)
The correct understanding is that a walī cannot marry off a thayyib without her consent. If he does, the nikāḥ can be annulled, as in the case of Khansā’ bint Khidām رضي الله عنها, whose father married her against her will while she was thayyib, and the Prophet ﷺ annulled that marriage.
(Ṣaḥīḥ al-Bukhārī: 5138; Sunan al-Tirmidhī: 1108)
❀ ʿAllāmah Sindhī Ḥanafī رحمه الله wrote:
The Prophet’s ﷺ words show that in marriage, both the woman and her walī have a role, but the thayyib has a stronger say. She cannot be forced by her walī, but likewise, she cannot contract her own marriage without him. If the walī refuses unjustly, the qāḍī (judge) acts as her walī. This does not contradict the ḥadīth “No marriage except with a walī.”
(Ḥāshiyat al-Sindī ʿalā Sunan al-Nasā’ī: 6/84; also al-Nawawī in Sharḥ Muslim: 1/455)
Conclusion:
- A thayyib has more right to choose regarding her marriage compared to a virgin.
- But the contract of marriage still requires a walī.
- Without the walī’s consent, nikāḥ does not take place, though the woman’s own consent is also necessary.
- If the walī is unjustly obstructive, the qāḍī (judge) assumes that role.
