Islamic Fiqh > Marriage and family > Engagement (khitba) and its rules > Marrying while the divorced wife is still in her waiting period
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
This second part of the betrothal chapter (al-khitba) of the fiqh encyclopedia gathers eleven sheets. It opens with a reminder about the remarriage of a man who has irrevocably divorced one of his four wives, then deals with the betrothal of the pilgrim in a state of ihram, the four situations of a proposal made over another proposal, the proposal over that of a non-Muslim, the nature of the right protected by the prohibition, the withdrawal of either party, the fate of gifts and expenses, the disclosure of a suitor's defects, the validity of a contract concluded after a forbidden proposal, and the case of the messenger who proposes for himself. The schools' positions are reported with their evidence, their takhrij and their classical references, in full fidelity to the texts.
The scholars asked whether a man who has irrevocably divorced one of his wives may remarry while she is still in her waiting period, or whether the end of that period is required. The Malikis and Shafi'is held that it is permitted for him: if he has four wives and irrevocably divorces one of them, he may marry another even if the divorced wife is still in her waiting period ("Sharh Mukhtasar Khalil" (3/212), "Mughni al-Muhtaj" (4/301)). The Hanafis and Hanbalis held that he may not marry until the waiting period of the wife he divorced has ended, nor may he marry her sister ("Bada'i' al-Sana'i'" (3/226), "al-Furu'" (5/155), "al-Mubdi'" (7/68), "al-Insaf" (8/131), "Matalib Uli al-Nuha" (5/108)). The issue will be treated in detail under the fourth pillar of marriage, namely the two spouses.
The jurists differed on the ruling on a proposal made by one in a state of ihram: is it disliked, forbidden or permitted? The majority of jurists, namely the Hanafis, the Shafi'is and the apparent position of the Hanbalis, hold it disliked at the level of mere reprimand (tanzih), because of the hadith reported by Muslim on the authority of Nafi, the freedman of Ibn Wahb, from Omar ibn Ubaydallah, who wanted to marry Talha ibn Omar to a daughter of Chayba ibn Jubayr and sent for Abban ibn Uthman, then the commander of the pilgrimage, to attend the matter.
Abban said: I heard Uthman ibn Affan say that the Messenger of Allah (peace and blessings be upon him) said:
"The one in ihram does not marry, is not given in marriage and does not make a proposal of marriage"Reported by Muslim (1409)
Imam al-Nawawi said: as for his words "and does not make a proposal", this is a prohibition at the level of mere reprimand which does not make it unlawful; likewise it is disliked for the one in ihram to be a witness in a marriage contracted by people who are permitted to do so. Some of our companions said that the contract is not concluded by his testimony, because the witness is a pillar of the act like the guardian; the correct position followed by the majority is that the contract is valid ("Sharh Sahih Muslim" (9/195)). Ibn Hajar al-Haytami stated: their explicit statement that the muhrim's proposal is disliked while his marriage is forbidden applies to the case where he does not propose in order to marry her while in ihram; otherwise it is forbidden; the same is said of a lawful proposal made by a woman in ihram ("Tuhfat al-Muhtaj" (8/521), "Nihayat al-Muhtaj" (6/234)).
Imam Ibn Abidin reported from "Sharh Durrar al-Bihar" that the prohibition is one of mere reprimand, and that the statement of "al-Kanz", "the marriage of the woman of the Book, the Sabaean and the woman in ihram is permitted", is explicit in this, for what is forbidden as makruh tahriman is not permitted ("Hashiyat Ibn Abidin" (3/47), see "Fath bab al-'Inaya", the commentary on al-Naqaya by Mulla Ali al-Qari (3/225)). Al-Mardawi said: the muhrim's proposal is disliked, as are his concluding the contract and testifying to it, according to the correct position of the school; Ibn Aqil said it is forbidden because the motives leading to intercourse are forbidden, and Abu al-Faraj al-Shirazi declared the proposal forbidden outright ("al-Furu'" (3/285), "al-Insaf" (3/493)).
Ibn Aqil among the Hanbalis, and Shaykh al-Islam Ibn Taymiyya, held that the muhrim's proposal is forbidden because such motives are forbidden. Ibn Taymiyya said: if the muhrim proposes to a woman for himself and marries her after coming out of ihram, or proposes her for a man lawfully, or a woman in ihram is proposed for someone who will marry her after the state ends, al-Qadi, Ibn Aqil in some places, Abu al-Khattab and many of our companions held that the proposal is disliked, not forbidden, and the contract is valid in these cases. In another passage Ibn Aqil said: it is not lawful for him to propose or to be a witness; this is the school's analogy, for the Prophet (peace and blessings be upon him) forbade all of it with a single prohibition without distinction, and what the prohibition entails is forbiddance; we have nothing that counters it, rather what confirms it was reported: Nafi reported that Abdallah ibn Omar said: "It is not fitting for the one in ihram to propose, to marry, to propose for another, or to give another in marriage", reported by Harb.
This is because the proposal is the prelude to marriage and its gateway, as the contract is the gateway to intercourse; the Law forbade all of it in order to cut the matter off at its root. The proposal is speech about marriage and its mention; the talk may grow long and bring about all kinds of mention of women, all of which the muhrim is barred from. The proposal also binds the heart to the proposed woman and makes the state of ihram burdensome, hastening its end in order to attain the purpose of the proposal, just as the contract binds the heart to the wife; that is why the woman in her waiting period is prevented from being proposed to as from being married; the man is forbidden to propose over his brother's proposal; and the woman is forbidden to ask for her co-wife's divorce.
As for testimony, many of our companions equated it with the proposal in being disliked and forbidden. Al-Qadi said in "al-Mujarrad": he is not prevented from testifying to the marriage contract, because he performs no act; he is like the one who merely proposes: testimony is never disliked at all, for no text concerns it and it does not fall under the meaning of the texted ruling ("Sharh al-'Umda" (3/216-217)). As for the Hanafis, they permit the marriage of the muhrim, as will be detailed later; likewise his proposal. As for the Malikis, Ibn al-Hajj said: if the muhrim engages in the marriage contract through a lawful intermediary or by himself and completes the contract after coming out of ihram (see "Sharh Mushkil al-Athar" (14/506-507), "al-Tajrid al-Daruri" (4/1843)).
Al-Baji said: I have seen no explicit text on it; in my view he did wrong, and the marriage is not annulled; Ibn al-Hajj was decisive on this in his book on the rites of the pilgrimage. The same applies if he undertook the proposal and another undertook the contract; and likewise if he attended the conclusion of the contract, as Achhab said, while Asbagh said: nothing is upon him ("Irshad al-Salik ila af'al al-manasik" by Ibn Farhun (2/656)).
A proposal made over another's falls into one of four situations:
The people of knowledge unanimously held that if a man proposes to a woman, she becomes attached to him, permits him and is content with his proposal, or authorizes her guardian to answer him or to marry her to him while he is not a wrongdoer, it is not permitted for another to come forward as a suitor. Nafi reported that Ibn Omar (may Allah be pleased with them both) used to say:
"The Prophet (peace and blessings be upon him) forbade selling by one of you over the sale of another, and forbade a man to propose over his brother's proposal until the first suitor withdraws or gives him permission"Reported by Bukhari (4848) and Muslim (1412)
In another narration from Ibn Omar from the Prophet (peace and blessings be upon him):
"Let none of you sell over the sale of another, and let none of you propose over the proposal of another"Reported by Muslim (1412)
Abu Hurayra (may Allah be pleased with him) reported that the Prophet (peace and blessings be upon him) said:
"Beware of suspicion, for suspicion is the falsest of speech; do not spy, do not pry, do not hate one another, be brothers; and let no man propose over his brother's proposal until he marries her or leaves her"Reported by Bukhari (4849)
Abd al-Rahman ibn Shamasa heard Uqba ibn Amir say on the pulpit that the Messenger of Allah (peace and blessings be upon him) said:
"The believer is the believer's brother; it is therefore not lawful for a believer to buy over his brother's sale, nor to propose over his brother's proposal until he leaves it"Reported by Muslim (1414)
This preserves friendship, prevents corruption and cuts off discord, for it corrupts the first suitor's position, stirs enmity among people and harms him, since the woman may incline to the second and leave the first ("al-Bayan" (9/284)). Ibn Qudama said: we know of no disagreement among the people of knowledge over this, except that some understood the prohibition as mere disapproval; the first view is preferable ("al-Mughni" (7/109), "Sharh al-Zarkashi" (2/385-386)). Ibn Rajab noted: they differed on whether the prohibition is one of forbiddance or of mere reprimand; the correct position held by the majority of scholars is that it is one of forbiddance ("Jami' al-'Ulum wa'l-Hikam" (331)).
Imam al-Nawawi said after citing these hadiths: these hadiths are explicit on the prohibition of proposing over a brother's proposal, and they agreed on its prohibition once consent was explicitly given to the suitor and he neither permitted nor withdrew; whoever proposes over it and marries in this state has disobeyed, yet the marriage is valid and is not annulled: this is our school and that of the majority. Dawud said the marriage is annulled; Malik has two narrations corresponding to the two positions, and a group of Malik's companions said: it is annulled before consummation, not after ("Sharh Sahih Muslim" (9/197)).
Shaykh al-Islam Ibn Taymiyya was asked about a man who proposed to the daughter of a man among the legal witnesses ('adl), agreeing with him on a mahr with an advance portion and a deferred portion; he paid the father the advance four years ahead while continuing to support them, with no exchange of letters between them; then a man came, proposed to her with a higher mahr and barred the first suitor. He answered: it is not lawful for a man to propose over his brother's proposal when consent to the marriage has been given and they have become attached to him, by the consensus of the imams, as it is established from the Prophet (peace and blessings be upon him) that he said: "it is not lawful for a man to propose over his brother's proposal"; a punishment is due upon whoever does this and whoever assists him, a punishment that deters them and their like; is the second man's marriage valid or void? The scholars have two positions in the school of Malik and Ahmad and others ("Majmu' al-Fatawa" (32/9)).
The hafiz Ibn Hajar said: the majority declared this prohibition to be one of forbiddance; al-Khattabi said it is for discipline and is not a prohibition that voids the contract according to most jurists, and there is no necessary link between its being a forbiddance and the contract's invalidity in the majority's view: it is a forbiddance for them and the contract still stands; al-Nawawi even reported consensus that it is a forbiddance ("Fath al-Bari" (9/199)).
The prohibition applies when the first suitor is upright. If he is a wrongdoer, the jurists differed: the majority held that the proposal remains forbidden as well, because of the general import of the hadiths, whether the first is fit or unfit. The Malikis, on the sound position of their school, held that another may propose if the first is a wrongdoer: the proposal is not forbidden if the second is upright or of unknown standing, otherwise it is; the guardian should urge her to marry the upright man who teaches her good and helps her toward it ("Mawahib al-Jalil" (5/35), "al-Taj wa'l-Iklil" (2/484), "al-Sharh al-Kabir with Hashiyat al-Dasuqi" (3/7), "Tahbir al-Mukhtasar" (2/537), "al-Hawi al-Kabir" (9/251)).
The prohibition also applies when the second knows of the first proposal; if he does not, no sin lies upon him. Imam Zayn al-Din al-Iraqi said: the prohibition also applies when the first suitor has not permitted another to propose; if he permits, the prohibition is lifted, for the prohibition protected his right; in Sahih Muslim, from Ibn Omar, this is explicit in the words: "unless he gives him permission". It remains to consider: if he permits a specific person to propose, is the proposal permitted to others as well? Permission to a specific person indicates disregard for the proposal, since a woman cannot be given to two suitors; or the proposal is not permitted to others since they were not permitted, and the prohibition is lifted only by permission; both readings are possible, but the more probable is the first.
The prohibition also applies when the suitor has not abandoned his proposal; if he abandons it, the proposal becomes permitted to others even without his permission. In Sahih al-Bukhari, from al-A'raj from Abu Hurayra: "until he marries her or leaves her"; in Muslim's hadith from Uqba ibn Amir: "the believer is the believer's brother, so it is not lawful for a believer to buy over his brother's sale, nor to propose over his brother's proposal until he leaves it", and the words "until he leaves it" refer to both clauses in accordance with al-Shafi'i's rule; it is explicit in al-Bayhaqi's Sunan, where "until he leaves it" appears after each of the two clauses. The prohibition also applies when the first proposal is lawful: if it is forbidden, as one made during the waiting period, a proposal over it is not forbidden, as al-Ruyani explicitly stated in "al-Bahr". It also applies when the woman has not authorized her guardian to marry her to whomever he wishes.
If she likewise permits, it is valid for anyone to propose over another's proposal, as al-Ruyani reported in "al-Bahr" from al-Shafi'i's text in "al-Umm". One may however say: if the pronoun in "whomever he wishes" refers to the guardian, then when the guardian answers the first suitor the proposal becomes forbidden to others; if it refers to the suitor, then once a man has proposed to her, the guardian has wished to marry her off and she has permitted her marriage to whomever he wishes; the guardian must then answer the suitor, and the proposal becomes forbidden to others, for she has consented to him by description without naming him; and Allah knows best ("Tarh al-Tathrib" (6/81-82)).
Second situation: the woman withholds herself from the proposal, so that no permission or contentment arises from it, nor refusal or aversion. When a man proposes to a woman and she withholds herself, most scholars permit another to propose to her. Muslim reported from Fatima bint Qays that Abu Amr ibn Hafs irrevocably divorced her while absent; his agent sent her barley which she rejected; he said: by Allah, you have nothing from us. She came to the Messenger of Allah (peace and blessings be upon him) and told him; he said: "You have no maintenance from him", and ordered her to observe her waiting period at Umm Sharik's house; then he said:
"She is a woman whom my companions visit; observe your waiting period at Ibn Umm Maktum's, for he is a blind man with whom you may put down your garments; when your waiting period ends, inform me"Reported by Muslim (1480)
She said: when my waiting period ended, I told him that Muawiya ibn Abi Sufyan and Abu Juhm had proposed to me; the Messenger of Allah (peace and blessings be upon him) said:
"As for Abu Juhm, he never puts his stick down from his shoulder; as for Muawiya, he is a destitute man with no wealth; marry Usama ibn Zayd". She disliked it; he repeated: "Marry Usama"; she married him, Allah placed good in it and she was delighted with himReported by Muslim (1480)
This hadith is evidence from two angles: one is that one of the two men had proposed to her after his companion and the Prophet (peace and blessings be upon him) did not declare it forbidden; the second is that the Prophet proposed her to Usama after their proposals, which shows that withholding consent does not entail prohibition. Al-Nawawi said: it proves the permissibility of proposing over another's proposal when the first has received no answer, for she informed him that Muawiya, Abu Juhm and others had proposed to her ("Sharh Sahih Muslim" (10/106)). For forbidding her proposal in this case would harm her: no one wishes to prevent a woman from marriage except by proposing to her himself. Likewise, if someone hints to her during her waiting period, saying "do not deprive us of yourself" or similar, his proposal is not forbidden, for in Fatima's story the Prophet said to her "do not deprive us of yourself" and did not disapprove of Abu Juhm's and Muawiya's proposals.
Imam al-Shafi'i reported through Muhammad ibn Isma'il, from Ibn Abi Dhi'b, from Muslim al-Khayyat, from Ibn Omar: "The Prophet (peace and blessings be upon him) forbade a man to propose over his brother's proposal until he marries her or leaves her". Al-Shafi'i commented: the apparent import of these hadiths is that once a man has proposed to a woman, no one may propose to her until the suitor permits or abandons the proposal; this was open to interpretation, for the Prophet's prohibition of proposing over a brother's proposal might apply to one situation among others; then we found the Prophet's sunna indicating that he only forbade it in a specific situation.
He then cited Fatima bint Qays's hadith and said: since we have established that the situation in which the Messenger of Allah proposed Fatima to Usama differs from the one in which he forbade proposals, and that a proposed woman can only be in two situations of different rulings if she permits marriage to a specific man, in which case the guardian may marry her and the marriage is valid, and no one may propose to her in this situation until the suitor permits or abandons it; this is clear in the hadith of Ibn Abi Dhi'b; Fatima informed the Messenger of Allah that Abu Juhm and Muawiya had proposed to her, and I have no doubt, Allah willing, that one of them proposed after the other without the Prophet rebuking either of them; and we do not know that she permitted one of them, otherwise he would have proposed over Usama's, whereas that was not permitted to him in the forbidden situation; and we do not know that he rebuked Muawiya or Abu Juhm for what they did; the most likely is that one of them proposed after the other; hence when the proposed woman permits marriage to a specific man, a proposal to her is not permitted in that situation ("al-Umm" (5/39)).
Ibn Abd al-Barr reported that Ibn Wahb reported through his chain from al-Harith ibn Sad ibn Abi Dhubab that Omar ibn al-Khattab proposed to a woman over Jarir ibn Abdallah, over Marwan ibn al-Hakam and over Abdallah ibn Omar; he entered upon her while she was sitting in her house and said: Jarir ibn Abdallah al-Bajali proposes, and he is the master of the people of the East; Marwan proposes, and he is the master of Quraysh's youth; Abdallah ibn Omar, whom you know; and Omar ibn al-Khattab. The woman lifted the curtain and said: are you serious, O Commander of the Faithful? He said: yes. She said: then I have married the Commander of the Faithful; marry me. Omar had thus proposed over one and then another before knowing what the woman said of the first, which indicates the permissibility of the proposal in this situation ("al-Mughni" (7/110), "Sharh al-Zarkashi" (2/386), "Kashshaf al-Qina'" (5/19)).
Imam Malik said: the interpretation of the Messenger of Allah's words "let none of you propose over his brother's proposal", in our view and Allah knows best, is that a man proposes to a woman, she becomes attached to him, they agree on one known mahr and are mutually satisfied, and she stipulates conditions for herself; that is the one over whose proposal it is forbidden to propose; it does not mean that when a man proposes and his proposal is neither accepted nor met with her attachment, no one may propose to her, for that would be a gate of corruption opening upon people ("al-Muwatta" (2/523)).
Imam Abu Umar ibn Abd al-Barr said: al-Shafi'i and Abu Ubayd interpreted this hadith in Malik's sense, and that is the school of a group of jurists who all agree on this meaning; it is what the early and later generations practiced; this, and Allah knows best, is because the Messenger of Allah permitted the proposal to Usama ibn Zayd over the proposals of Muawiya ibn Abi Sufyan and Abu Juhm ibn Hudhayfa when they proposed to Fatima bint Qays; she came to consult him and he proposed her to Usama ibn Zayd over their proposals; and it is well known that the Messenger of Allah does not do what he forbids, and I know of no one who claimed abrogation in the hadiths of this chapter; this therefore indicates that the meaning is what the jurists said: attachment and contentment; and Allah knows best. Once the woman or her guardian has become attached and contentment has occurred, it is not permitted for anyone to propose over the one to whom they became attached and content, and whoever does so is disobedient if he knows of the prohibition ("al-Istidhkar" (5/381-382)). It is said in "al-Kafi": a group may propose to one woman, together or separately, as long as she has not consented to one of them and become attached to him; once she is attached to him, others may no longer propose until he abandons it or gives permission ("al-Kafi" (p. 230)).
Ibn Abd al-Barr added in "al-Kafi": if she marries him, no return is possible at all; if she refuses, he may take back what he handed over directly, but if she ate it with him, no return at all. He said in "al-Tamhid": the meaning of the Prophet's words "let none of you propose over his brother's proposal" is, as Malik, al-Shafi'i and the majority of jurists said, that the woman becomes attached to the suitor, they are mutually satisfied and agree on a known mahr, she stipulates her conditions and anything by which agreement and attachment are known; and Allah knows best. Ismail ibn Abi Uways said: Malik was asked about a man who proposed to a woman, she became attached to him and they agreed on a known mahr, so that she is among those of whom the Prophet said: "let none of you propose over his brother's proposal". Malik answered: if it is so and another man marries her without consummation, they are separated; if he consummates, the marriage stands ("al-Tamhid" (13/21-22), see also "Mawahib al-Jalil" (5/35), "al-Taj wa'l-Iklil" (2/484), "al-Sharh al-Kabir with Hashiyat al-Dasuqi" (3/7), "Tahbir al-Mukhtasar" (2/537), "al-Hawi al-Kabir" (9/251), "Bidayat al-Mujtahid" (2/3), "Bada'i' al-Sana'i'" (5/332-333), "Sharh Mukhtasar al-Tahawi" by al-Jassas (4/339-340), "al-Nahr al-Fa'iq" (3/447-448), "Hashiyat Ibn Abidin" (3/533)).
Third situation: contentment with the suitor becomes apparent from the woman or her guardian without her permitting the contract, by allusion and not explicitly, as in her saying "you are all that is pleasing, and in you there is no aversion", or when she fixes her mahr, or sets the conditions she wants; or a man proposes to her guardian, among those who let her choose, and hints consent without stating it, saying for example "I will think it over" or "you are desired", or stipulates conditions for the contract such as advancing the mahr. The jurists differed on the ruling: may another come forward as a suitor or not? The early Shafi'is and the Hanbalis on the apparent school position (al-Amrani said: it is the view of Malik and Abu Hanifa) held that it is not lawful for another to propose to her, for attachment is established at times by allusion and at others explicitly, by the general import of the Prophet's words "let none of you propose over his brother's proposal" without distinction; and because something appeared from her indicating contentment and settledness toward him, so that her proposal becomes forbidden as if she had stated it explicitly.
Ibn Qudama said: as for Fatima's hadith, it is no proof for them, for two reasons. The first is that the Prophet (peace and blessings be upon him) had said to her "do not precede me with yourself", in one wording "do not deprive us of yourself", and in a narration "when your waiting period ends, inform me"; she could therefore not consent before informing the Messenger of Allah. The second is that she mentioned it to the Prophet as if consulting him about them, or about turning away from both to another; consultation indicates neither preference for one nor inclination to either; she only mentioned it to the Prophet to return to his view, and he pointed her to leaving both by mentioning their flaws; this therefore amounts to her refusal of both and her explicit prevention of them. From another angle, the Prophet had preceded them in proposing to her by allusion with what we mentioned, so his proposal after theirs was built upon the previous proposal, unlike our case ("al-Mughni" (7/110-111)).
The later Shafi'is (their established school) and the Hanbalis in one view held that the proposal is not forbidden by contentment until her guardian explicitly permits, or she does so herself; for the default is the permissibility of proposals so long as the conditions of prohibition are not met, and because the Prophet proposed Usama to Fatima bint Qays after she informed him that Muawiya and Abu Juhm had proposed to her, without asking her whether she had become attached to one of them or was content with him; this indicates the ruling does not change on that account; and because the apparent state of hers is that she only came to consult him after being content and attached ("al-Hawi al-Kabir" (9/251-252), "al-Muhadhdhab" (2/48), "al-Bayan" (9/284-285), see "Bada'i' al-Sana'i'" (5/332-333); al-Kasani said: when a man proposes to a woman and her heart becomes attached to him, it is disliked for another to propose to her, according to what we have reported; if she does not become attached, there is no harm in it).
Imam al-Nawawi said: if consent is hinted to him without being stated, the prohibition of proposing over his proposal falls under two views of al-Shafi'i, the sounder being that it is not prohibited. Some Malikis said: it is not prohibited until they accept the husband and the mahr is named; they argued from Fatima bint Qays's hadith: "Abu Juhm and Muawiya proposed to me and the Prophet did not disapprove of one proposing over the other, rather he proposed her to Usama". This proof may be objected to by saying: perhaps the second did not know of the first's proposal, and as for the Prophet, he pointed to Usama without proposing her to him.
Imam Zayn al-Din al-Iraqi said: the Shafi'is and Hanbalis declared that the prohibition applies when explicit consent is given to the suitor, saying for example "I consent to that", or when she permits her guardian to marry her to him, which counts as permission. If explicit consent does not occur but there is an allusion, as her saying "no aversion toward you", there are two views of al-Shafi'i and Ahmad: al-Shafi'i in the old said the proposal is forbidden, and in the new that it is permitted. My father reported in "Sharh al-Tirmidhi" from Malik and Abu Hanifa the prohibition of the proposal even by allusion; al-Nawawi said in "Sharh Sahih Muslim", after mentioning al-Shafi'i's old view and confirming the prohibition: they argued from Fatima bint Qays's hadith; it may be objected: perhaps the second did not know of the first's proposal, and as for the Prophet, he pointed to Usama without proposing her to him.
My father said in "Sharh al-Tirmidhi": this requires scrutiny; and he said before: perhaps when he mentioned to her what is off-putting in Abu Juhm and Muawiya, she turned away from them, and he then proposed her to Usama; he also said: arguing from it requires scrutiny, for it was not transmitted that either Abu Juhm or Muawiya was answered, explicitly or by allusion. I say: al-Shafi'i did not mention this argument in the case of allusion, but only in the absence of contentment and attachment; al-Tirmidhi reported in his Jami' that al-Shafi'i said: the meaning of this hadith in our view is: when a man proposes to a woman and she is content with him and attached to him, no one may propose over his proposal; before knowing her contentment or attachment there is no harm in proposing to her; the proof is Fatima bint Qays's hadith; then he said: the meaning is that Fatima did not inform him of her contentment with either of them; had she informed him, he would not have pointed her to other than what she had mentioned.
Our companions said: if she refuses him, the proposal certainly reverts to others; if neither answer nor refusal occurs, some of our companions were categorical on permissibility, others applied the two earlier views to it; they said: it is permitted to come forward to a woman of whom one does not know whether she has been proposed to, and to one of whom one does not know whether her suitor was answered or refused, for the default is permissibility. The Hanbalis said: if he does not know whether consent occurred, there are two views ("Tarh al-Tathrib" (6/80)). The hafiz Ibn Hajar said: if consent occurs by allusion, as her saying "no aversion toward you", there are two views among the Shafi'is; the sounder, which is the view of the Malikis and Hanafis (the compiler notes: what is reported here from the Hanafis and Malikis contradicts the view of most scholars, who transmit the opposite from them), is that it is not forbidden either; if she neither refuses nor accepts, the proposal is permitted; the proof is Fatima's words: "Abu Juhm and Muawiya proposed to me and the Prophet did not disapprove of them for it, rather he proposed her to Usama". Al-Nawawi and others indicated it is no proof, for the two may have proposed together, or the second did not know of the first's proposal, and the Prophet pointed to Usama without proposing; even if he proposed, it was because when he mentioned to her what was in Muawiya and Abu Juhm her aversion toward them appeared, and he then proposed her to Usama. Al-Tirmidhi reported from al-Shafi'i the meaning of the chapter's hadith: when a man proposes to a woman and she is content with him and attached, no one may propose over his proposal; if he does not know her contentment or attachment there is no harm in proposing to her ("Fath al-Bari" (9/199-200)).
The proof lies in the story of Fatima bint Qays: she did not inform him of her contentment with either of them; had she done so, he would not have pointed her to other than the one she chose; if neither answer nor refusal occurs, some Shafi'is were categorical on permissibility, others applied the two views; al-Shafi'i explicitly stated in "al-Bikr" that her silence is contentment with the suitor; some Malikis said: the proposal is only forbidden over the proposal of one between whom and her an agreement on the mahr has occurred. As for the Hanafis, they hold only this one distinction, the one al-Kasani mentioned: when a man proposes to a woman and her heart becomes attached to him, another's proposal is disliked, according to what we reported; if she does not become attached, there is no harm in it ("Bada'i' al-Sana'i'" (5/232-233)).
Ibn Nujaym said: the free woman, outside marriage and waiting period, may be proposed to explicitly and by allusion, since her marriage is lawful, provided no one else proposed to her before; if someone did, three cases: she explicitly shows contentment and the proposal becomes forbidden; she explicitly refuses and it remains permitted; or she stays silent, and the scholars hold two views; I have not seen this distinction among our companions; its basis is the authentic hadith "let none of you propose over his brother's proposal", qualified by his not granting permission ("Bahr al-Ra'iq" (4/164)). It is said in "al-Durr al-Mukhtar": as for the free woman, she may be proposed to if no one else has proposed and she is content with him; if she stays silent, there are two views: her proposal becomes forbidden.
Ibn Abidin said: these words were quoted in "al-Bahr" from the Shafi'is, with the remark: I have not seen it among our companions; its basis is the authentic hadith, qualified by the first suitor's not granting permission; this is transmitted among us; al-Ramli said: in "al-Dhakhira": just as remaining with the third of another was forbidden, so proposing over another's proposal was forbidden; the meaning is that the woman's heart becomes attached to her first suitor, as in "al-Tatarkhaniyya" in the chapter on disapproval. As for their words "if she stays silent, there are two views", that is, for the Shafi'is; al-Khayr al-Ramli said: their principle "no view is attributed to the silent one" implies preferring permissibility. I (Ibn Abidin) say: this is apparent when her heart's attachment to the first is not known from the circumstances of the situation; otherwise it becomes like explicit contentment ("Hashiyat Ibn Abidin" (3/533-534)). As for the Malikis, if attachment occurs in a way that conveys each party's compliance with the other's condition and the will to conclude the contract, the proposal becomes forbidden even if he fixes no mahr, according to Ibn al-Qasim and others, and this is the famous view. Ibn Nafi' said: if he fixes no mahr, a proposal over it is permitted to him ("Mawahib al-Jalil" (5/35), "al-Ishraf ala nakt masa'il al-khilaf" (3/333-334) no. 1172, "Sharh Mukhtasar Khalil" (3/168), "al-Sharh al-Kabir with Hashiyat al-Dasuqi" (3/7)).
Imam Ibn al-Arabi said after citing the hadith: there are in it eleven questions of fiqh. The first: there is no disagreement that no one may propose over another's proposal, due to the Prophet's prohibition; they differed on the description of the forbidden proposal according to two views. The first is that both prospective spouses become attached to each other and agree on a known mahr, so that only the declaration or witnessing of its becoming binding remains. The second is that the proposal is not permitted once they have mutually become attached, even without agreement on a mahr; this was said by Ibn al-Qasim, Ibn Wahb, Mutarrif, Ibn al-Majishun, Ibn Abd al-Hakam and al-Shafi'i, and Ibn Nafi' supported the famous narration from Malik in his Muwatta. The imam hafiz said: the precise statement is that the proposal has a beginning, a courtship stage and an end; there is no disagreement on the permissibility of overlap at the beginning, nor on the prohibition of the proposal at the end, when only the conclusion remains and another interposes; the discussion concerns the courtship stage: if they have mutually become attached and drawn close in contentment without the mahr being mentioned, that is the place of dispute; the one who says the proposal is permitted argues that the agreement has not yet occurred, since they may mention of the mahr what... (the next sheet continues this discussion). Abu Hurayra's hadith "a man does not propose over his brother's proposal until he marries her or leaves her" is reported by Bukhari (4849), and Imam al-Nawawi said: they agreed that if he abandons the proposal out of aversion to it and gives permission, a proposal over his becomes permitted, as is explicit in these hadiths ("Sharh Sahih Muslim" (9/198), "al-Hawi al-Kabir" (9/251-252), "al-Mughni" (7/110), "Sharh al-Zarkashi" (2/386)).