The Free Consent of the Parties

The Free Consent of the Parties
The Qur'an (4:21) refers to marriage as a mithaq, i.e. a solemn covenant or agreement between husband and wife, and enjoins that it be put down in writing. Since no agreement can be reached between the parties unless they give their consent to it, marriage can be contracted only with the free consent of the two parties. The Prophet (peace be upon him) said,



"The widow and the divorced woman shall not be married until their order is obtained, and the virgin shall not be married until her consent is obtained." (AlBukhari)

This aspect is greatly emphasized by Imam Bukhari. He, in fact, gave one of the chapters in his Sahih the significant title:



"When a man gives his daughter in marriage and she dislikes it, the marriage shall be annulled." Once a virgin girl came to the Prophet (peace be upon him) and said that her father had married her to a man against her wishes. The Prophet gave her the right to repudiate the marriage. (Abu Dawud).

Divorced women are also given freedom to contract a second marriage. The Holy Qur'an says,



And when you divorce women, and they have come to the end of their waiting period, hinder them not from marrying other men if they have agreed with each other in a fair manner. (2: 232)

With regard to widows, the Qur'an says,



And if any of you die and leave behind wives, they bequeath thereby to their widows (the right to) one year's maintenance without their being obliged to leave (their husband's home), but if they leave (the residence) of their own accord, there is no blame on you for what they do with themselves in a lawful manner. (2:234)

Thus widows are also at liberty to re-marry, even within the period mentioned above; and if they do so they must forgo their claim to traditional maintenance during the remainder of the year. However, it must be remembered that the power of ijbar given to the a father or the guardian by the Maliki school over their selection of life- partner obtains in all the situations considered above, namely, whether the daughter or the ward is a virgin or divorcee or widow.