Forcing an adult female to marry against her will
The Islamic law bestows the right of guardianship to some individuals to protect the charges' interests and ward off harm. This right allows guardians to exercise their will over their charges. The Islamic law considers mental incapacity and legal incompetence two reasons for establishing guardianship; the existence of one of them constitutes sufficient grounds for establishing guardianship over another person.
Types of guardian ships according to the different schools of jurisprudence Scholars mentioned [different] types of guardianship:
Guardianship over the general affairs of a person
guardianship with the authority to compel the authority to initiate marriage. This type of guardianship is consistent with the above mentioned definition since it involves executing the guardian's will over his charge. Ibn 'Abdin states in Dar al-Mukhtar that "guardianship is executing one's will over another."
Hanafi scholars maintain that guardianship with the authority to initiate marriage cannot be established except over minors because of their young age; therefore this kind of guardianship cannot — under any circumstances — be exercised over an adult female. According to them, it is recommended and preferable for an adult female to have a guardian. They associate guardianship to the order of guardianship outlined by the laws of inheritance. Al-Zayla'i mentions in Tabyeen al-Haqa`iq: "Guardianship in marriage is of two types: The first, the guardianship over a sane adult female whether or not she is a virgin, is recommended and preferable. The second, the guardianship over a female minor with the authority to initiate marriage without her consent whether or not she is a virgin." He [also] mentions in Kinz al-Haqa`iq: "A guardian has the right to marry off a minor, male or female; the guardian is a universal guardian occupying the same order as that in inheritance."
The Malikis and the Shafi'is:
The Malikis and Shafi'is maintain that guardianship, with the authority to initiate marriage without the consent of the female, is exercised over both young and ols a virgins. While the Malikis maintain that only the father is entitled to guardianship, the Shafi'is maintain that both the father and grandfather are entitled to guardianship. Citing Malik, al-Baji, the great Maliki scholar, mentions in Al-Muntaqa that only the father can compel a virgin to marry, not her grandfather nor anyone else.
Imam al-Suyuti, the Shafi'i scholar, mentions in Al-Ashbah wa Al-Nadha`ir: "Certain regulations have been outlined concerning the father and paternal grandfather, among which is guardianship with the authority to initiate marriage for a son or daughter without their consent".
The Shafi'i scholar, Al-Khatib, mentions in Mughni al-Muhtaj: "A father has the right to marry a young or old virgin without her consent [although] it is better to seek her permission; he does not have the right to marry a non-virgin except with her consent. If she is prepubescent, then she is not to marry until she attains puberty. In the absence of the father, the grandfather takes his place."
The chosen opinion for this fatwa
The Egyptian Court of Cassation, appeal no. 56 for the year ….., in the Court of Family Affairs on the session held on 15 February 1994 implemented the Hanafi opinion which has also been chosen for this fatwa. The court ruling states that the conditions for a guardian marrying a sane adult female are:
seeking her consent sexual maturity.
Impermissibility of marrying one's daughter to an insane man Imam al-Shafi'i maintains that it is impermissible for a man to marry his daughter to an insane man. In his famous work on Islamic law, Al-Umm, he mentions that: "It is unlawful for a father to marry his daughter to someone suffering from leprosy, vitiligo, insanity, or someone whose testicles has been severed, though he be a suitable match. The reason is if she was an adult, she would have had the right to choose if she had known of these defects in advance.”
It is impermissible to marry off an 18-year old female without her consent even if it were to a suitable match. In addition marriage to a person who is considered insane such as to a permanently retarded person is another reason for the objection to the validity of this marriage. This is because marrying an adult female to such a person is impermissible except with her consent.
Allah the Almighty knows best