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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 9 · Page 390

Translation · EN

If the condition is missing, she has no option. If we say it is a condition, its existence is only considered at the time of the contract. If it is missing thereafter, the marriage is not void, because the conditions of marriage are only considered at the time of the contract. If it was missing at the time of the contract, the marriage is corrupt (fasid), governed by the ruling on corrupt contracts, as previously discussed. If we say it is not a condition, and the woman and all the guardians are pleased, the marriage is valid. If some of them are not pleased, does the contract occur as void from its origin, or as valid? There are two narrations from Ahmad regarding this, and two opinions from al-Shafi'i. The first is that it is void, because compatibility is a right for all of them, and the one performing the contract acted upon it without their consent, so it is not valid, like the action of an unauthorized agent (fuduli). The second is that it is valid, based on the evidence that the woman who brought the matter to the Prophet, may Allah bless him and grant him peace, that her father married her to a non-equal, he gave her the choice and did not void the marriage from its origin. And because the contract occurred with permission, and the deficiency present in it does not prevent its validity, but rather establishes an option, like the defect of impotence and others. Based on this narration, the one who is not pleased has the right of annulment. Al-Shafi'i and Malik said this. Abu Hanifa said: If the woman and some of the guardians are pleased, the remaining guardians do not have the right of annulment; because this right is not divisible, and some of the partners have relinquished their right, so it is all relinquished, like retaliation (qisas). Our position is that the consent of each one of the guardians is considered, so it is not relinquished by the consent of others, like the woman alongside the guardian. As for retaliation, it is not established for each one completely, so if part of it is relinquished, its fulfillment becomes impossible, whereas here it is the opposite. And because if he married her without her equivalent dowry, the others have the right of objection according to them, despite it being her exclusive right, so here, given it is a right for them, it is more appropriate. And it is the same whether they are equal in degree or different, so the closer one marries—such as the father marrying her to a non-equal—the brothers have the right of annulment. Malik and al-Shafi'i said: They do not have the right of annulment if the closest relative marries; because the more distant relative has no right alongside him, so his consent is not considered. Our position is that he is a guardian in a state where he is afflicted by shame due to the lack of compatibility, so he has the right of annulment, like those who are equal.

Notes

(27) In M: "and the rational (al-'aqil)". (28) In A and M: "the correct (al-sahih)". (29) Omitted from the original. (30) In M: "the annulment (al-faskh)".

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