Is the guardian permitted to contract marriage for a person under legal restriction due to foolishness (safih)?
General Chapter
Al-Mughni
Book of Marriage
Primary text
The guardian is permitted to contract marriage for the restricted person if the guardian knows the restricted person has a need for marriage. This is permissible because marriage preserves the person's religion, honor, and self, protecting them from potential sin, unlawful sexual intercourse (zina), prescribed punishments, or dishonor. This need encompasses the need for sexual gratification or the need for domestic service. If the restricted person has no such need, the marriage is invalid because marriage imposes financial obligations such as dowry (mahr), maintenance (nafaqa), companionship, lodging, and cohabitation, which would constitute a wasteful dissipation of his wealth without benefit, akin to squandering funds.
Supporting text
If the guardian wishes to contract the marriage, the restricted person must be consulted for permission. If the guardian proceeds without the restricted person's permission, the dominant opinion among our colleagues is that the marriage is valid, analogous to a contract of exchange, as the guardian possesses legal authority over the restricted person's affairs, similar to the case of a minor or an insane person. A dissenting view suggests that the guardian cannot contract the marriage without permission, asserting that since the restricted person has the right to divorce, he should not be compelled into marriage, unlike a sound adult or a major slave. Compelling marriage while granting the right to divorce is viewed as pure harm, as he might divorce immediately, incurring the dowry while losing the benefit of the marriage, or he might object to the specific woman chosen, thereby losing a potential benefit and incurring harm unnecessarily.