Ahmad said: I fear that he may be a guarantor. The father is not like [any other] guardian, and the woman does not have the right to annulment (faskh); because she has already attained the obligation of her equivalent dowry. And Allah knows best.

1124 - Issue: He said: (And whoever marries off a non-pubescent boy, or one who is mentally deficient, it is not permissible unless his father marries him off, or an executor who is responsible for him in matters of marriage.)

The discussion on this issue is in four sections:

First: It is not for anyone other than the father or his executor to marry off a boy before he reaches puberty. Al-Qadi said in "al-Mujarrad": The ruler has the right to marry him off; because he is the guardian of his property. Al-Shafi'i said: The guardian of the minor has the right to marry him off so that he becomes accustomed to protecting his chastity upon reaching puberty. This is not sound; for other than the father does not (1) have the right to marry off a young girl, so the boy is more deserving [of that restriction]. It differs from the father and his executor, for they have the right to marry off a young girl and possess the guardianship of compulsion (wilayat al-ijbar). It is the same whether the boy (2) permits his marriage or does not permit it, for his permission does not count.

Second Section: The mentally deficient (al-ma'tuh); who is one whose intellect has vanished due to constant insanity, there is no right for anyone other than the father and his executor to marry him off. This is the opinion of Malik. Abu Abd Allah ibn Hamid said: The ruler has the right to marry him off if a craving for women becomes apparent from him, such as by following them and desiring them. This is the school of al-Shafi'i; because that is from his interests, and there is no state in which his permission is awaited. We have already mentioned the justification for both views regarding marrying off an insane woman. It follows from this opinion that it should be permissible to marry him off if medical experts say: "In his marriage is the removal of his ailment." Because it is one of his greatest interests. And Allah knows best.

Third Section: That the father or his executor has the right to marry them both off, whether the boy is sane or insane, and whether the insanity is persistent or occurring. As for the boy who is free from insanity, we know of no disagreement among the people of knowledge that his father has the right to marry him off. This is what Ibn al-Mundhir said. Among those whose school this is, is al-Hasan,