Marriage to a Non-Equal and the ‘Idda in a Fasid Nikah

Question

A nikah was contracted with a non-equal (ghayr kuf’) without the consent of the guardians (awliya’). The local ‘ulama were asked whether the nikah is permissible or impermissible. The ‘ulama differ among themselves on this. One of them says that with a non-equal husband, without the consent of the guardians, where it entails shame and disgrace, the nikah is batil (void) and no ‘idda is needed for a second nikah — whether she is madkhula (a woman with whom the marriage was consummated) or not.

Answer

When a free adult woman contracts her own nikah without the consent of the guardians, the husband’s parity (kafa’a) is a condition in it: according to the zahir al-riwaya it is a condition for the bindingness (luzum) of the nikah, and according to the narration of al-Hasan it is a condition for the permissibility (jawaz) of the nikah.

Source: Fatawa Mahmudiyya

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