Azami 6261

Nasai (3262) narrated it from Ahmad bin Saeed Rubati, who said, Yaqub narrated to us, who said, my father narrated to me, from Ibn Ishaq, who said, Salih bin Kaysan narrated to me, from Abdullah bin Fadl bin Abbas bin Rabia, from Nafi bin Jubayr bin Mutim, from Ibn Abbas, and he mentioned it.Ahmad (2365), Ibn Abu Shayba (4/136), and Daraqutni (3/238-239) also narrated it, all of them from the hadith of Ibn Ishaq. Its isnad is hasan because of Ibn Ishaq.Daraqutni said, Saeed bin Salama followed him narrating from Salih bin Kaysan, and Mamar contradicted them both, dropping a man from it, and he also contradicted them in its wording, bringing a different phrasing in which he erred, because everyone who narrated it from Abdullah bin Fadl, and everyone who narrated it from Nafi bin Jubayr together with Abdullah bin Fadl, contradicted Mamar. Their agreement against him is evidence of his error.Then he narrated it from the hadith of Saeed bin Salama bin Abu Hisam with the isnad already mentioned, and its wording was the same.As for what he alluded to regarding Mamar's contradiction of Ibn Ishaq and Saeed bin Salama, it is what Abdul-Razzaq (10299) narrated, and through his route Abu Dawud (2100), Nasai (3263), and Daraqutni, from Mamar, from Salih bin Kaysan, from Nafi bin Jubayr, from Ibn Abbas, who said, the Messenger of Allah ﷺ said, "The guardian has no say regarding the previously married woman, and the orphan girl is to be consulted, her silence being her consent." Ibn Hibban (4089) graded it sahih.He also narrated it from the hadith of Abdullah bin Mubarak, from Mamar, who said, Salih bin Kaysan narrated to me, from Nafi bin Jubayr, from Ibn Abbas, and he mentioned the hadith.Then Daraqutni said, the one before it is more sahih in isnad and wording, because Salih did not hear it from Nafi bin Jubayr, but rather heard it from Abdullah bin Fadl, from him. Ibn Ishaq and Saeed bin Salama agreed on that, from Salih.He said, I heard Nisaburi (he is Abu Bakr Nisaburi, his teacher) say, what I hold is that Mamar erred in it. End of quote.I say, Daraqutni's statement involves two matters. The first is the difference in the isnad, and that is as he said. The second is the difference in the wording, for his saying, "The guardian has no say regarding the previously married woman," he thought it contradicts the established principle, "There is no marriage without a guardian," but it can be interpreted as meaning that the guardian does not act alone regarding the previously married woman without her consent and choice, because she has the choice regarding herself, and the consent to what is contracted upon her. There is nothing in it that negates the guardian's authority over the marriage. And "the orphan girl" here means the orphaned virgin.In Sahih Muslim, as mentioned previously, "The widow has more right over herself than her guardian, and the virgin is to be asked her permission regarding herself, and her permission is her silence," from the hadith of Malik, from Abdullah bin Fadl, from Nafi bin Jubayr, from Abdullah bin Abbas.The orphan girl, what is meant by it here is the one whose father died while she was young. So when she reaches maturity, she has the choice to approve the marriage or annul it, and this is the view of some of the successors.Given that choice is not permissible in marriage, many scholars held that the marriage of the orphan girl is not permissible until she reaches maturity, at which point she is consulted, and if she remains silent, that is her consent. This is the view of Sufyan Thawri, Shafii, and others among the scholars.Ahmad and Ishaq said, if the orphan girl reaches nine years of age and is married, and she consents, then the marriage is valid, and she has no choice once she reaches maturity. Tirmidhi mentioned this (3/409) in brief.His saying, "the orphan girl is consulted regarding herself," means that the marriage contract is not made for her until she reaches maturity, so that she may have the right to permit or refuse it.