3261 - Mahmud ibn Ghaylan informed us, saying: Abu Dawud narrated to us, saying: Shu'bah narrated to us, from Malik ibn Anas — he said: I heard it from him a year after the death of Nafi' (1), and on that day he had a study circle — he said: Abdullah ibn al-Fadl informed me, from Nafi' ibn Jubayr, from Ibn Abbas, that the Prophet, peace and blessings be upon him, said: "A non-virgin woman has more right to herself than her guardian, and the orphan virgin is to be consulted, and her permission is her silence." (2)

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The expression "seeking permission" (isti'dhan) appears for the virgin in some narrations of the hadith, while in others — and in the narrations that follow — the expression "seeking counsel" (isti'mar) is used. In the hadith of Abu Hurayrah that follows as number (3265), the expression "seeking permission" is used for the non-virgin and "seeking counsel" for the virgin, while the opposite appears in his hadith at (3267). The meaning is similar. Ibn Hajar mentioned in al-Fath 9/192 that isti'mar indicates an emphasis on consultation and entrusting the matter to the woman being consulted, whereas isti'dhan ranges between speech and silence — unlike the command, which is explicit in requiring speech.

It was also narrated in similar form by Ahmad (2481) and (3343) via the chain of Ubaydullah ibn Abd al-Rahman ibn Abdullah ibn Mawhab, from Nafi' ibn Jubayr ibn Mut'im, with the same content, and in these two narrations the wording is "is to be consulted" (tusta'mar) instead of "is to be asked permission" (tusta'dhan).

Al-Tirmidhi said: Some people used this hadith as evidence for the permissibility of marriage without a guardian, but there is nothing in this hadith to support their argument, because it has been narrated through multiple chains from Ibn Abbas, from the Prophet, peace and blessings be upon him: "There is no marriage except with a guardian," and this is what Ibn Abbas gave as a legal ruling... And the rest of his statement may be consulted.

The other narrations of Ibn Abbas's hadith that follow may also be consulted.

Al-Sindi said: "Non-virgin" (ayyim) in its original sense refers to any woman who has no husband, whether she is a virgin or has been previously married. What is meant here is the previously married woman, due to the narration that says "the previously married woman" (al-thayyib) and because it is contrasted with the virgin.

(1) The speaker is Shu'bah, and he means Nafi', the freed slave of Ibn Umar, may God be pleased with him. Abu Nu'aym narrated in Hilyat al-Awliya' 6/319 via the chain of Mahmud ibn Ghaylan, from Abu Dawud al-Tayalisi, from Shu'bah, who said: I came to Medina a year after the death of Nafi', and the study circle belonged to Malik ibn Anas. Similar accounts appear in al-Tarikh al-Kabir 7/310 and al-Tamhid 1/73 and 13/238.

(2) In manuscript (R): "is to be asked permission" (tusta'dhan).

(3) Its chain is authentic. Abu Dawud is Sulayman ibn Dawud al-Tayalisi, and Shu'bah is Ibn al-Hajjaj. It appears in al-Sunan al-Kubra as number (5352).