The Book of Marriage - Sunan an-Nasa'i 3261

"A previously married woman has more right to decide about herself (with regard to marriage) than her guardian, and an orphan girl should be consulted, and her permission is her silence."

Scholarly Commentary

This noble hadith establishes crucial distinctions in Islamic marriage law between different categories of women. The first part clarifies that a thayyib (previously married woman) possesses full autonomy over her marital decisions, superseding even her guardian's authority. This reflects wisdom in recognizing her prior experience in marital matters.

The second portion addresses the orphan girl's consent, emphasizing that consultation is obligatory. Her silence constitutes valid consent, demonstrating the Prophet's gentle approach toward those without parental protection. This prevents guardians from exploiting their authority while respecting the shyness and modesty expected of young women.

Scholars interpret this as establishing three principles: complete autonomy for previously married women, mandatory consultation for orphans, and the legal validity of tacit consent through silence when clear speech might cause discomfort. This balanced approach protects women's rights while maintaining Islamic decorum.

Legal Implications

This hadith forms the basis for differentiated rulings in Islamic family law. The previously married woman's marriage contract is valid only with her explicit consent, rendering her guardian's agreement secondary. For orphans, the guardian retains a role in arrangement but cannot finalize marriage without consultation.

The ruling on silence as consent applies specifically to virgins due to their natural modesty, while previously married women are expected to express consent verbally. This distinction shows Islam's nuanced understanding of human nature and social contexts.