Who may contract marriage for an insane woman when the guardian is neither the father nor the ruler/judge?
General Chapter
Al-Mughni
Book of Marriage
Primary text
The prevailing opinion, articulated by Al-Qadi, is that only the ruler/judge may marry her, treating her case as per the second category mentioned previously. However, Abu Al-Khattab holds that they may marry her in the same circumstances under which the ruler may marry his ward. This is the position of Abu Hanifa, based on their right of guardianship superseding the ruler's right in marriage, similar to when the woman is sane.
Supporting text
The reasoning supporting Al-Qadi's view is that the ruler is the custodian of her property, excluding others, thus making him the primary guardian in matters of marriage, similar to his role in matters concerning her female slave. Moreover, this is a clear necessity that should be referred to the ruler, akin to satisfying the needs of hunger or clothing. If she has an executor for her property, he does not have the right to contract her marriage, as his guardianship does not extend to marriage contracts.