What is the authoritative ruling on seeking permission from a female orphan for marriage?
General Chapter
Al-Mughni
Book of Marriage
Primary text
The ruling supported by evidence contradicts the opinion allowing the guardian other than the father to contract marriage for the minor orphan without consent. The evidence is the Prophet's statement: "The orphan girl is to be asked for her consent regarding herself; if she remains silent, it is her consent, but if she refuses, there is no validity upon her" (Reported by Abu Dawud and Al-Nasai). Furthermore, the narration from Ibn 'Umar regarding Qudamah ibn Maz'un marrying his nephew 'Uthman's daughter, which was brought before the Prophet (PBUH), resulted in the Prophet stating: "She is an orphan, and she is not to be married except with her permission." An orphan here is defined as a minor whose father has died.
Supporting text
The argument against the guardian other than the father is that he possesses lesser compassion (*shafaqah*), so he should not conduct her marriage like a non-relative, just as he does not manage her property exclusively like a non-relative. Moreover, the grandfather derives his authority through another's authority, resembling other paternal relatives, unlike the father whose authority is direct. The application of the verse regarding orphans is restricted to adult women, evidenced by God's statement: "Give them what is prescribed for them" [Quran 4:127], as this is delivered to the adult, or the verse is understood to apply to a girl of nine years.