3262 - Ahmad ibn Sa'id al-Ribati informed me, saying: Ya'qub narrated to us, saying: My father narrated to me, from Ibn Ishaq, who said: Salih ibn Kaysan narrated to me, from 'Abdullah ibn al-Fadl ibn 'Abbas ibn Rabi'ah, from Nafi' ibn Jubayr ibn Mut'im, from Ibn 'Abbas, that the Messenger of Allah, peace and blessings be upon him, said: "The unmarried woman has more right to her own affair, and the orphan girl is to be consulted about herself, and her consent is her silence."

=================================

Al-Daraqutni also recorded it in "Al-Sunan" (3581) via the author's chain of transmission. Ibn 'Abd al-Barr recorded it in "Al-Tamhid" 19/74-75 via the chain of Muslim ibn Ibrahim, from Shu'bah, with the same chain, except that he said: "The previously married woman has more right to herself than her guardian, and the virgin is to be asked permission..."

Al-Daraqutni said following (3582): A group narrated it from Malik, from 'Abdullah ibn al-Fadl, with this chain, from the Prophet, peace and blessings be upon him, who said: "The previously married woman has more right to herself," among them Shu'bah, 'Abd al-Rahman ibn Mahdi, 'Abdullah ibn Dawud, Sufyan ibn 'Uyaynah, Yahya ibn Ayyub, and others.

Ibn 'Abd al-Barr said 19/76: It is possible that whoever said "the previously married woman" (al-thayyib) conveyed it according to his own understanding of its meaning.

Qadi 'Iyad transmitted in "Ikmal al-Mu'allim" 4/564 from al-Mazari his statement: "The unmarried woman (al-ayyim) here is specifically the previously married woman (al-thayyib)."

As for the other part of the hadith, Abu Bakr ibn al-'Arabi mentioned in "Al-Qabas" 1/688 that Malik's opinion differed on it: sometimes he held that the virgin is the orphan, and it is likewise narrated that Shu'bah interpreted it in this hadith, saying: "And the orphan girl is to be asked permission about herself," and sometimes he said that she is the virgin in relation to the father's right, and this is the correct view by which the flow of the hadith is coherent and its meaning is completed. Al-Baji said in "Al-Muntaqa" 3/179: Perhaps 'Abdullah ibn al-Fadl, due to his knowledge of what was intended, would sometimes say: "And the virgin is to be asked permission," and sometimes say: "And the orphan girl is to be consulted." End quote. This matter has further detail; see "Al-Tamhid" 19/74 and "Al-Fath" 9/193.

Al-Sindi said: His statement "and the orphan girl" indicates the permissibility of marrying an orphan girl with her consultation before she reaches puberty. Those who do not permit that interpret "orphan" as referring to one who has reached puberty, calling her an orphan in consideration of her former status. And Allah, the Exalted, knows best.

(1) A sound hadith, and this chain is good on account of Ibn Ishaq — namely Muhammad — who explicitly stated that he narrated it (with tahdith), and the rest of its narrators are trustworthy. Ya'qub is Ibn Ibrahim ibn Sa'd al-Zuhri. It appears in "Al-Sunan al-Kubra" under numbers (5353) and (5371). Ahmad also recorded it (2365) via Ya'qub ibn Ibrahim ibn Sa'd al-Zuhri, with this chain. =