Islamic Fiqh > Marriage and family > Engagement (khitba) and its rules > Forbidden proposals, withdrawal and engagement gifts
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Updated on 24 September 2026 at 7:46 PM
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)).
The jurists differed on the ruling on a proposal made over that of a protected non-Muslim (dhimmi), as when a dhimmi proposes to a woman of the Book and the proposal is completed: may a Muslim propose over it? The Malikis and Shafi'is held that it is not permitted over the proposal of a respected dhimmi, that is, one who is neither belligerent nor an apostate, by the general import of the Prophet's words "let no man propose over his brother's proposal"; the mention of "brother" here carries no implied legal meaning, since it comes under the dominant case ("Sharh Sahih Muslim" (9/198), "al-Najm al-Wahhaj" (7/39), "Mughni al-Muhtaj" (4/229)).
The Malikis answered the following objection: the dhimmi is in a worse state than the wrongdoer, and it is permitted to propose over a wrongdoer's proposal but not over a dhimmi's, though the dhimmi is in a worse state before Allah. The answer is that the wrongdoer is in a state the Law does not sanction, unlike the dhimmi whose state is sanctioned: the Lawgiver confirmed the dhimmi in his disbelief and permitted him to marry the woman upon his disbelief, whereas the wrongdoer's iniquity is not confirmed, marriage is not permitted to him and his marriage is annulled ("Mawahib al-Jalil" (5/36), "al-Fawakih al-Dawani" (2/11)). The Hanbalis and some Shafi'is such as Ibn al-Mundhir held that it is permitted for a Muslim to propose over a dhimmi's proposal: the Prophet's words "let no Muslim propose over his brother's proposal" concern Muslims only; proposing over a Jew's proposal does not fall under it, for they are not the Muslims' brothers; the wording of the prohibition is specific to Muslims, and likening another to them is valid only if he resembles them; the dhimmi is not like the Muslim, nor is his inviolability like his; that is why answering their invitation to a wedding feast is not obligatory ("al-Mughni" (7/111), "al-Insaf" (8/36), "Kashshaf al-Qina'" (5/18-19)).
Ibn al-Mundhir said: the Prophet's prohibition of proposing over his Muslim brother's proposal indicates the permissibility of marrying over the Jew's and the Christian's proposal, for things are by default permitted until the prohibition of proposing over the Muslim was pronounced; permissibility therefore stands for whoever is not a Muslim, for the believers are brothers ("Sharh Sahih al-Bukhari" by Ibn Battal (7/260)). As for the objection "it comes under the dominant case", we say: when would the specific mention carry a meaning to be considered in the ruling such that it could neither be omitted nor the ruling extended without it? Islamic brotherhood has an effect in requiring respect, greater care in safeguarding rights, preserving the heart and keeping affection; nothing beyond that is permitted ("al-Mughni" (7/112)).
Zayn al-Din al-Iraqi said: al-Khattabi and others declared that the apparent import is that the prohibition is specific to the case where the suitor is a Muslim; if he is a disbeliever there is no prohibition; al-Awza'i said so, and al-Rafi'i reported it from Abu Ubayd ibn Harbawayh; my father strengthened it in "Sharh al-Tirmidhi" by the Prophet's words at the start of Uqba ibn Amir's hadith in Muslim's Sahih: "the believer is the believer's brother", which is apparent in specifying the Muslim's proposal. The majority said the proposal is forbidden over a disbeliever's proposal as well; al-Nawawi said: they may answer the hadith by saying that the qualification by "brother" falls under the dominant case and thus carries no operative implied meaning, as in the verse:
"And do not kill your children for fear of poverty"
Surah 6, 151
and in the verse:
"and your stepdaughters who are in your care"
Surah 4, 23
and similar verses ("Tarh al-Tathrib" (6/82), "Nayl al-Awtar" (6/236)).
Imam Ibn al-Arabi the Maliki posed the question: is the right in this matter Allah's or the suitor's? Some said it is the suitor's, so he may release him from it; if he does not, let him leave her; this was Ibn Wahb's view. This is not sound, for it amounts to considering him holder of a right in the marriage, which is not sound, and the locus of his right has already passed; however, if he releases him, he is free of his claim ("'Iradat al-Ahwadhi" (5/33), "'Umdat al-Qari" (20/132)).
If a woman proposes to a man and becomes attached to him, may another propose to her? Al-Hattab said: the Hanbalis have two positions and prefer prohibition; "al-Ikmal" contains what indicates permissibility. In the hadith of the woman who offered herself to the Prophet, it is said that he raised his gaze to her, set it right, then lowered his head, and a man said: if you have no need of her, marry her to me; this man's words are evidence for the permissibility of the proposal so long as they have not mutually become attached, especially with what he saw of the Prophet's detachment regarding her. Al-Baji said: it permits that with the suitor's permission, since it is his right. Iyad said: in my view all of this reasoning is weak, for there was no proposal there except the woman's to the Prophet concerning herself, and the man only sought the woman and proposed her to the Prophet; no one had proposed to her before, so that one could not say "a proposal over a proposal" ("Mawahib al-Jalil" (5/36-37)). From it is inferred that when a woman proposes to a man, another may propose to her if the first made no proposal of his own; and Allah knows best.
Shaykh al-Islam Ibn Taymiyya said: if the woman or her guardian proposes to the man initially and he answers, no other man should propose to her; this is nonetheless weaker than when he is himself the suitor; likewise if she or her guardian proposes after he proposed to a woman: the first revealed himself to the suitor, the second to the proposed woman; it is like selling over a brother's sale before the contract becomes binding ("Fatawa al-Kubra" (4/529)). Al-Bahuti reported from the shaykh: if the woman or her guardian proposes initially and he answers, it is fitting that no other man be permitted to propose to her, for that harms him; it is nonetheless weaker than when he is the suitor, being lesser in harm; the shaykh then mentioned an issue in which a word dropped from his discourse, which the author left aside; then he said: the parallel of the first is that the woman proposes to him, or her guardian, after he proposed to a woman; this harms the proposed woman in both cases as it harms the suitor, and it is like selling over a brother's sale before the contract binds, that is, before it becomes binding; all of that ought to be forbidden.
It is said in "al-Mubdi'": the apparent import of the scholars' words is the opposite of permitting a woman's proposal over another woman's; the prohibition was explicitly stated in "al-Ikhtiyarat", and the underlying cause may support it ("Kashshaf al-Qina'" (5/20), "Matalib Uli al-Nuha" (5/25)). Imam Zayn al-Din al-Iraqi the Shafi'i added: the prohibition concerns a man's proposal over his brother's, and the proposal of a woman over another woman's should be assimilated to it: a woman desires to marry a man of merit and proposes to him, he becomes inclined to marrying her, then another woman comes and proposes to him; our shaykh the imam Jamal al-Din al-Isnawi mentioned it and said: they explicitly stated the merit of proposing to men of merit; when that occurs, it no doubt falls under the prohibition as with what precedes in the woman's case. If you say: the difference is that a woman cannot be given to two men while a man can marry two women, he answers: the case is that of a man who has resolved to marry only one woman, to the point that if the second offers herself he turns away from the first because of her superiority in the qualities that stir desire ("Kashshaf al-Qina'" (5/20), "Matalib Uli al-Nuha" (5/25), "Tarh al-Tathrib" (6/82-83)).
The Malikis said: it is disliked for a man to abandon the woman who became attached to him after his proposal, for that is a breach of promise; however, it is not forbidden for the woman or her guardian, after the attachment, to go back on it toward someone other than the suitor ("Sharh Mukhtasar Khalil" (3/168)). Al-Hattab said: when a woman becomes attached to a man and the suitor breaks off because of her attachment, may he abandon her, or is it disliked? The apparent is that it is disliked, for a breach is only disapproved for fear of the inconstancy of the promise, they said; and Allah knows best ("Mawahib al-Jalil" (5/37)).
The Shafi'is said: the proposal is not a legal contract; even if it were imagined to be one, it is not binding; rather it may be ended from either side absolutely ("Hashiyat al-Jamal" (4/129), "Hashiyat al-Bujayrimi on Minhaj al-Tullab" (3/389)); each of the two may therefore annul it. The Hanbalis said: it is not disliked for the guardian to go back on his consent when he sees benefit in it for her, for the right is hers and he acts in her place in examining it; he is therefore not blamed for the withdrawal he deems beneficial, like one who negotiates the sale of her house then sees the benefit in not selling; nor is withdrawal disliked for her when she feels aversion toward the suitor, for it is Umar's pact in which harm persists; she should therefore take precaution for herself and consider her lot. If they withdraw without any reason, it is disliked, because of the breach of promise and the retraction of one's word, without being forbidden, for the right does not yet bind them, like one who negotiates over his goods then decides not to sell ("al-Mughni" (7/111), "Kashshaf al-Qina'" (5/19), "Matalib Uli al-Nuha" (5/25)).
The jurists differed over the man who proposed to a woman, gave her gifts or spent on her, then did not marry her for some reason: may he take back what he gave? The Hanafis said: if he proposed to a man's daughter and sent her something, and her father did not marry her to him, what he sent for the mahr he takes back in kind if intact, or its value if it perished, even if it changed through use; for it was handed over by the owner pending the exchange, and nothing is owed for the diminution caused by use; or its value if destroyed: for it was a counter-exchange that was not completed, hence the permissibility of taking it back. Likewise everything he sent as a gift so long as it is intact, excluding what perished or was consumed, for that carries the meaning of a gift, and destruction and consumption prevent taking it back; it is further required that nothing prevent the return, as with a garment she dyed or mixed with others.
If he spent on another's woman in her waiting period hoping to marry her when it ends, and she refuses once it has ended: if he made marriage a condition of the spending, saying for example "I spend on condition that you marry me", he takes back, whether she married him or not; likewise if he set no condition, according to the sound view; it was said: he does not take back if she married, since his condition was fulfilled, and this view was also authenticated; if she refuses and he had set no condition, he does not take back according to the sound view. Ibn Nujaym said: the upshot is what al-Imadi mentioned in his "Fusul": if she marries him, no return at all; if she refuses, he takes back what he handed to her directly; if she ate it with him, no return at all ("Bahr al-Ra'iq" (3/199-200), "Durrar al-Hukkam" (4/145), "Majma' al-Anhar" (1/532), "al-Durr al-Mukhtar" (3/153), "al-Hindiyya" (1/328), "Tanqih al-Fatawa al-Hamidiyya" (1/159)).
It appears in "Tanqih al-Fatawa al-Hamidiyya" by Ibn Abidin the question: regarding a man who proposed to a pubescent virgin, sent her gifts that were consumed, her father did not marry her to him, and he wishes to take back what he sent; is that his right? Answer: what he sent for the mahr he takes back in kind if intact, or its value if destroyed; likewise what he sent as a gift so long as it is intact, excluding what perished or was consumed; the issue is in "al-Tanwir" drawn from "al-Mahr" and "al-Hawi al-Zahidi". I add: in "al-Fatawa al-Khayriyya" it was asked about a man who proposed to another's sister and gave her what is called a "mullaka" (betrothal gift) as well as dirhams, it being the custom of the wife's family to prepare a meal with it, and the marriage did not take place; may the suitor take it back? Answer: yes, provided he did not authorize them; if he authorized them to take it and serve it to people, it is as if he himself fed people a meal that was his, and he does not take it back.
It also appears in the chapter on maintenance: regarding a man who proposed to a woman and spent on her in view of marriage, and it became clear that he spent only to marry her, then she refused and married another: does he take back what he spent? Answer: yes; in "al-Khaniyya", after the two views, the author said: he should take back, for his knowledge that he would not spend were he not to marry her is equivalent to a condition, even if not stipulated verbally. In "al-Tatimma": my father was asked about one who sent the bride's father sugar, almonds, walnuts and dates, then the father abandoned the contract; may this suitor take back what he handed over? He said: if he distributed it among people with the giver's permission, he has no right of return; if he did not authorize it, it is his; and that is the preferred view because of its rationale in "al-Khaniyya", and it is the apparent course; one should not depart from it, and Allah knows best; as for what is in "al-Khayriyya", let it be pondered ("Tanqih al-Fatawa al-Hamidiyya" (1/148-149), see "Hashiyat Ibn Abidin" (3/154)).
The Malikis said: giving a gift to a woman in her waiting period from death or from another's irrevocable divorce is permitted, but not spending on her, which is forbidden like courting during the waiting period; if he gives her a gift or spends and then she marries another, he takes back nothing from her; al-Alish said: in "al-Tawdih", the woman outside the waiting period shares her ruling. Al-Laqqani reported from "al-Bayan" that this applies when the turning away comes from him; if she turns away from him, he takes back, for what he gave for was not fulfilled. In "al-Mi'yar": the man may take back what he spent on the woman or gave when she was taken from her first husband, when the impossibility and refusal come from her side; for what he gave for was not obtained; if the impossibility comes from his side, there is no return, for obtained enjoyment is like acquisition. All of this applies perhaps where there is no condition or custom providing for return; otherwise it is applied by consensus ("Minah al-Jalil" (3/264-265)).
It appears in "Hashiyat al-Sawi on al-Sharh al-Saghir": gift-giving during the waiting period is permitted, such as vegetables and fruits, but not maintenance; if she marries another, there is no return upon her at all. Likewise if he gives or spends for a bride outside the waiting period and she then turns away, even if the turning away comes from her side, except by custom or condition. It was said: if the turning away comes from her side, he takes back from her, for it resembles what was not fulfilled; and this distinction was preferred. His words "not maintenance" mean that no maintenance may be run during the waiting period, rather it is forbidden; and "it was preferred": this distinction was preferred by al-Shams al-Laqqani ("Hashiyat al-Sawi on al-Sharh al-Saghir" (4/423)). Al-Kharashi said: a man may give a gift to a woman in her waiting period during it, for a gift carries affection and is not like an explicit proposal during the waiting period, unlike running maintenance on her; if he spends or gives and then she marries another, he takes back nothing from her; the same applies if he gave or spent for a bride outside the waiting period and she then marries another ("Sharh Mukhtasar Khalil" (3/171), see "Mawahib al-Jalil" (5/46), "al-Taj wa'l-Iklil" (2/487), "Tahbir al-Mukhtasar" (2/541)).
Al-Dardir said: gift-giving during the waiting period is permitted, but not maintenance; if he gives or spends and then she marries another, he takes back nothing from her; the woman outside the waiting period shares her ruling, even if the turning away comes from her side; the most apparent is return upon her when the refusal comes from her side, except by custom or condition. Al-Dasuqi commented: "not maintenance" means maintenance may not be run during the waiting period, it is forbidden; "he takes back nothing from her": whether the turning away from marriage comes from him or from her, and this is the school's basis; "the most apparent": this distinction was mentioned by al-Shams al-Laqqani from "al-Bayan", the author of "al-Mi'yar" answered with it when asked, and Ibn Ghazi confirmed it in "Takmilat al-Taqyid"; "when the refusal comes from her side": for what he gave for was not fulfilled; if the turning away comes from him, no return is possible for him at all ("al-Sharh al-Kabir with Hashiyat al-Dasuqi" (3/11-12)).
The Shafi'is said: whoever proposes to a woman and then spends on her in order to marry her may take back what he spent from the one to whom he gave it, whether food, drink, sweets or jewelry, and whether he or the one who answered turned away, or one of them died; for he spent it only for the sake of marrying her: he therefore takes back the thing if it remains, or its substitute if it perished; if it was with the intention of a gift, not of marriage, the absence of return is agreed upon, for the circumstantial evidence of the prior proposal outweighs the assumption that he sent or gave only to carry that proposal through.
They said: if the suitor, by himself, his agent or his guardian, handed his bride or her guardian something to eat, drink or wear, then a turning away occurred from both sides or one of them, or both or one of them died, the giver or his heir takes back all that he gave if it was before the contract, absolutely; likewise after it if he divorced before consummation or died; but not if she died; and no return after consummation at all ("Hashiyat al-Jamal" (4/129), "I'anat al-Talibin" (3/295)). Al-Bujayrimi reported the question put about one who proposed to a woman and spent on her without marrying her: may he take back? He answered that he takes back what he spent from the one to whom he gave it, whether food, drink, clothing or jewelry, and whether he or the one who answered turned away, or one of them died, for he spent only for the sake of marrying her; he takes back the thing if it remains, or its substitute if it perished ("Hashiyat al-Bujayrimi" (3/388)).
They also said: if he proposed to a woman and then sent or handed over, without any wording indicating liberality, wealth before the contract, that is, without intending a donation, the intention being known by his acknowledgment, and then a turning away from the contract occurred from her or from him, he takes back from her, her guardian or her agent what of it reached them, as a number of verifying jurists explicitly stated. If he divorced in our case after the contract, he takes back nothing, as al-Adhra'i preferred, against al-Baghawi, for he gave only for the contract and it took place. If he handed his bride wealth before the contract saying "I have made it part of the mahr that will become due with the contract, or of the bridal outfit that will become due with the contract and consummation", and she said "it is rather a gift", her word is followed, for there is no circumstantial evidence here of the truthfulness of his intent ("I'anat al-Talibin" (3/643-644)).
The Hanbalis said: the husband's gift is not part of the mahr; what the husband gave before the contract, if they promised to marry her to him and then married her to another, he takes it back, said the shaykh Taqi al-Din, for he spent it for the like of marriage and it was not granted him, and it is known from him that if he himself withdrew, there is no return, like the one who stipulates a wage and does not complete the work. Shaykh al-Islam Ibn Taymiyya said: if the suitor agreed with the woman and her guardian upon marriage without a contract, and the suitor gave her for that something other than the mahr, and she died before the contract, he does not recover what he gave them; for the non-completion is not from their side; by analogy, if the suitor dies, his heirs take back nothing.
What is received because of marriage, such as what they call the "mu'akkala" (mahr in consumable goods), follows the mahr's ruling in what voids it, halves it or fixes it; it belongs to her, and the guardian owns nothing of it unless she gifts it to him under his condition; except the father, who may take by his condition or without condition from her wealth what he wants under his condition, and what was written to her as mahr even if she is divorced, said the shaykh, for the custom is that he takes it for himself. If the marriage is dissolved by an involuntary separation, such as dissolution for lack of competence before consummation, the husband takes back the whole mahr and what he gave, even a gift, for the situation shows he gave on condition that the contract remain; once it ceases, return is due, like a gift made for a reward. Al-Bahuti said: the same reasoning applies if she gave him something before consummation and he then divorced or the like.
Likewise everything is returned to him, even a gift, in a voluntary separation that voids the mahr, such as dissolution for his defect and the like before consummation, for the situation shows he gave on condition that the contract remain, and once it ceases return is due, like a gift made for a reward. The gift remains the wife's with a dissolution that fixes the mahr, that is, consummation or privacy, or half of it, such as divorce and the like; then there is no return of the gift, for the contract's cessation is not from her side, and he is the one who deprived himself. If the gift was meant for others than the contracting parties because of the contract, such as the broker's fee and the like, such as the measurer's and weigher's fee, Ibn Aqil said in "al-Nazariyat": if a sale is dissolved by mutual rescission and the like resting upon the two parties' consent, the broker does not return what he took; if the dissolution does not rest upon their consent, such as dissolution for a defect and the like, the broker returns what he took, for the sale occurred wavering between binding and non-binding; the same reasoning applies to a marriage dissolved for the husband's lack of competence or the appearance of a defect in one of the two: then he returns, that is, the suitor returns what he took from the two spouses or one of them because of his intermediation in the marriage, for he took on a contract that did not stand; he does not return what was taken if the marriage is dissolved for apostasy, nursing or khul' ("Kashshaf al-Qina'" (5/170-171), "Sharh Muntaha al-Iradat" (5/271-272), "Matalib Uli al-Nuha" (5/215-216), "Manar al-Sabil" (3/23-24)).
Al-Mardawi reported in "al-Insaf" (8/296-297) that the wife's gift is not part of the mahr, explicitly stated by the shaykh Taqi al-Din: if he gave it before the contract while they promised to marry her to him and then married her to another, he takes it back; he restricted himself to it in "al-Furu'". Taqi al-Din also said: what is received because of marriage follows the mahr's ruling, and what the mahr is written in does not leave it through her divorce. In "al-Qa'ida al-Khamsun ba'd al-Mi'a", al-Athram reported from Imam Ahmad, regarding the freedman (mawla) who marries an Arab woman of free status, that they are separated: if he handed her part of the mahr without consummation, it is returned to him, and if he gave a gift, they return it to him; al-Qadi said in "al-Jami'": in this case what shows that he gave on condition that the contract remain is apparent, and once it ceases return is due, like a gift made for a reward; this is apparent for the involuntary separation for lack of competence and the like, as for the voluntary separation that voids the mahr; as for a dissolution that fixes the mahr or half of it, the gift stands with it; and if the gift was meant for others than the contracting parties because of the contract, such as the broker's fee, in Ibn Aqil's "al-Nazariyat": if the sale is dissolved by mutual rescission not resting upon consent, the fee is not returned; if dissolved by option or defect, it is returned; the same reasoning applies in marriage.
The majority of jurists explicitly stated that it is permitted to mention the suitor's faults, and that this is not the forbidden backbiting. The Malikis said: the one whom one of the two spouses consults may mention the unattractive things he knows of the other by way of faults, in order to warn him by allusion; explicit statement is not permitted if one can dispense with it, and he must not restrict himself to mentioning only the spouse's faults. Mentioning faults to one who consults him is permitted only if there is someone who knows the state of the one asked about besides that person; otherwise the mention becomes obligatory, for it falls under sincere advice to a Muslim brother. It was said: if he is consulted, mentioning the faults is obligatory; if he is not consulted, it is recommended. The proof of permissibility is the hadith of Fatima bint Qays reported earlier (reported by Muslim (1480)), in which the Prophet (peace and blessings be upon him) said of Abu Juhm that he never puts his stick down from his shoulder, and of Muawiya that he is a destitute man with no wealth.
The Shafi'is said: the one consulted about a suitor, a bride, or anyone with whom one wishes to associate for a transaction or living nearby, such as transmitting from him or reading under him, mentions his faults truthfully so that one may take heed, fulfilling the obligatory duty of sincere advice, not to harm or disparage, according to the Prophet's words to Fatima bint Qays: "as for Abu Juhm, he never puts his stick down from his shoulder; as for Muawiya, he is a destitute man with no wealth" (reported by Muslim (1480)). Is this obligatory or recommended? Two views in the school; the sound one is that it is obligatory: he must mention his defects, as one who knows of a defect in a sale must inform whoever wants to buy, absolutely; bodily faults are even graver in prohibition and harm than wealth, for they lay bare what is intimate and tear the veils, and the man of honor is more lenient in matters of wealth than in matters of faults.
Does he mention them only after being consulted, or is mentioning them obligatory from the outset, without consultation? Two views; the sounder is from the outset. Faults are mentioned when needed; if one can manage without, as by saying "his kinship does not suit you" or "dealing with him does not suit you", it is obligatory to stop there and mentioning his defects is not permitted, as said in "al-Adhkar" following "al-Ihya'", and it is the relied-upon view even though al-Adhra'i examined it; the analogy is that if mentioning part suffices, mentioning the rest becomes forbidden, as Ibn al-Naqib said, even if the author's words suggest otherwise.
Al-Khatib al-Shirbini said: backbiting a disbeliever is forbidden if he is a protected subject (dhimmi), for it repels them from accepting the jizya and abandons fidelity to the covenant, and by the Prophet's words: "whoever broadcasts the faults of a dhimmi, the Fire is due to him", reported by Ibn Hibban in his Sahih; it is permitted if he is belligerent, for the Prophet ordered Hassan (Hassan ibn Thabit) to satirize the polytheists. The upshot is that backbiting, which is mentioning a person with what he dislikes, even in his wealth, his child, his wife or the like, is forbidden, whether one mentions him by speech, in writing, or by a gesture of the hand, the head or the eyelid; but it becomes permitted for the reasons mentioned, even obligatory in fulfillment of advice, as has passed. Al-Burizi said: if one is consulted about his own marriage, if in him is what establishes the right of option, mentioning it to the wife is obligatory; if in him is what diminishes desire without establishing the option, such as bad character and stinginess, it is recommended; if it involves sins, immediate repentance and covering oneself are due. The obligatoriness of this detail is far-fetched; the most apparent, as our shaykh said, is that his words "I do not suit you" suffice. A person's faults are called "masawi" (offensive things) because mentioning them offends him ("Mughni al-Muhtaj" (4/231-232), "al-Najm al-Wahhaj" (7/41-43), "Tuhfat al-Muhtaj" (8/526-529), "Nihayat al-Muhtaj" (6/237-238), "al-Dibaj" (3/179-180), "al-Hawi al-Kabir" (9/253), "al-Bayan" (9/287-289)).
The Hanbalis said: the one consulted about a suitor or a bride must mention his faults and other matters, and it is not forbidden backbiting when he intends advice, according to the hadith:
"The one consulted is a trustee"Authentic hadith reported by Abu Dawud (5128), Tirmidhi (2822) and Ibn Majah (3745)
and the hadith:
"Religion is sincere advice"Reported by Muslim (55)
If he is consulted about himself, he must disclose it as an obligation, saying for example "I am poor, my character is harsh" and the like, by the import of what preceded ("Kashshaf al-Qina'" (5/9), "Matalib Uli al-Nuha" (5/11)).
The jurists differed over the marriage contract concluded with the woman whose proposal had become forbidden, as with one who was proposed to and then another proposed over it and contracted, or one proposed to during her waiting period explicitly or by allusion and then contracted with: is the marriage contract valid? The majority of jurists, namely the Hanafis, the Shafi'is, the Hanbalis and the Malikis in one view, held that the contract with the woman whose proposal had become forbidden is valid along with the prohibition, like the second man's contract with another's bride and the suitor's contract with the woman in her waiting period during it; for at most the prohibition preceded the contract and does not affect it.
Al-Nawawi said: the Prophet's words (peace and blessings be upon him) "let no man sell over his brother's sale and let none of you propose over another's", in a narration "let no man sell over his brother's sale, nor propose over his brother's proposal, unless he gives him permission", and in a narration "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": 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 without permission or withdrawal; 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 it is annulled; Malik has two narrations corresponding to the two views; a group of Malik's companions said: the marriage is annulled before consummation, not after ("Sharh Sahih Muslim" (9/197), "al-Najm al-Wahhaj" (7/41)).
Ibn Qudama said: a man's proposal over his brother's is forbidden; if he does it, his marriage is valid; Ahmad explicitly stated: they are not separated, and it is al-Shafi'i's school; it is reported from Malik and Dawud that the marriage is invalid, which is the analogy of Abu Bakr's view, who said of selling over a brother's sale that it is void, and this falls under it; its rationale is that it is a forbidden marriage, hence void like the shighar marriage. We say: the forbidden does not coincide with the contract and therefore does not affect it, as when the proposal is explicitly made during the waiting period ("al-Mughni" (7/111), "Manar al-Sabil" (2/544)).
Ibn Abd al-Barr said: the scholars did not differ that if there is neither attachment nor consent, the marriage is permitted. They differed when the marriage with the second took place after attachment to the first and contentment with him: Malik's view is what we mentioned; it is reported from him that he annuls in all cases, and reported from him that he does not annul at all, which is Abu Hanifa's and his companions' view and al-Shafi'i's, who does not annul; he was asked: is he disobedient by his act or not? Dawud said: the marriage is annulled in all cases.
Ibn al-Qasim said: if a man marries the woman after she became attached to another and consummates, the one who proposed over the first must free himself from him and inform him of what he did; if he releases him, well and good; otherwise let him seek Allah's forgiveness of that; he need not divorce her, but he has sinned in what he did. Ibn Wahb said: if the first does not release him from what he did, let him divorce her; if the first desires her and marries her, the second is freed of sin; if he dislikes marrying her, let the one who left her return to her with a new marriage, and he is not condemned to separation.
Ibn al-Qasim said: the prohibition of proposing over a brother's proposal concerns two upright men; as for the one who proposed first, to whom she became attached, if he is an evil man, the guardian should urge her to marry the upright man who teaches her good and helps her toward it. Abu Umar said: the tenor of Malik's school on the marriage of one who proposed over his brother's proposal in the state in which the proposal is not permitted to him: if he has not consummated, they are separated; if he has consummated, the marriage stands, and evil is what he did. Al-Shafi'i said: it is a misfortune for which he seeks Allah's forgiveness, and the marriage stands whether he consummated or not, though it is disliked; no one should do it. Abu Hanifa, his companions and a group say the same, and it is the analogy, for were the marriage invalid, forbidden and not contracted, it would not be validated by consummation; on Malik's principle, only that marriage is validated by consummation whose invalidity lies in the mahr; what is invalid in the contract can never be validated by consummation, for marriage depends on the contract's validity, whereas it may be contracted even with silence upon the mahr. Let the discerning understand ("al-Tamhid" (13/22-24)).
The Malikis, on the famous view, said: whoever commits the prohibition by proposing to one who became attached to a wrongdoer and contracts, his marriage is annulled before consummation, as an obligation, by a divorce without mahr; if he consummates, the marriage stands and evil is what he did. When the proposal or promise occurs during the waiting period and he marries her, and it is not discovered until consummation during the waiting period, or kissing her, or touching her, or consummating after the period has ended, her prohibition becomes permanent: this concerns the woman in waiting from death or divorce, or the woman freed under a marriage agreement (mustabra'a), because of his fornication or another's, rape, ownership or presumed ownership; her prohibition becomes permanent through the preambles of marriage, that is, what rests upon a contract.
But if he kisses the woman in waiting or the mustabra'a of another during her period without consummation or contract, or commits fornication with her during the period, she is not forbidden to him, and he may marry her once she becomes lawful, for he did not intend by the fornication to hasten anything; likewise if he divorces his wife thrice during her waiting period, she is not forbidden to him by that, for he was not barred from her because of the waiting period but because she had not married another husband after him. Likewise one who marries a fifth wife: the marriage is annulled without her prohibition becoming permanent upon him through the consummation; rather, when wives become lawful to him, he may marry her if he has divorced one of the four or one has died ("Mawahib al-Jalil" (5/38-45), "al-Taj wa'l-Iklil" (2/485), "Sharh Mukhtasar Khalil" (3/168-169), "al-Sharh al-Kabir with Hashiyat al-Dasuqi" (3/8-11), "Tahbir al-Mukhtasar" (2/538-540), "Hashiyat al-Sawi on al-Sharh al-Saghir" (4/416)).
Ibn Abd al-Barr said: whoever contracts a marriage with a woman in her waiting period during it is annulled in all cases; they are separated by an annulment separation, without divorce or inheritance between them if one of them dies; if they are separated before consummation, he may propose to her after her waiting period ends; if they are not separated except after he consummated with her during her waiting period, her marriage never becomes lawful to him according to Malik and his companions, according to what is reported from Omar on this; if he contracted during her waiting period and did not consummate until after it ended, Malik and his companions were subject to disagreement over the permanence of the prohibition here: it is reported from Malik that they are separated and that he never marries her either, for his consummation resulted from the contract concluded during her waiting period, as if he had consummated during it; that is the view of Abd al-Aziz ibn Abi Salama, the tenor of the school, chosen by Ibn al-Qasim; it is also reported from Malik that her proposal becomes lawful to him after her waiting period ends; that is the view of al-Mughira ibn Abd al-Rahman al-Makhzumi and Muhammad ibn Ibrahim ibn Dinar; Abd al-Malik ibn al-Majishun said: upon al-Mughira and Ibn Dinar the consultations of Medina revolved, after Malik; and Allah knows best ("al-Kafi" (p. 236-237)).
Imam Ibn Abd al-Barr said: Ismail ibn Abi Uways reported: I heard Malik say: I disapprove that, when a man sends someone to propose a woman for him, the one sent proposes for himself; I see it as treachery; he added: I have not heard anyone permit it. Abu Umar commented: in my view this is because he did not mention the man who sent him; were he to mention him and mention himself, there would be no harm in it, according to the hadith of Omar mentioned; and Allah knows best; it is what Ibn Wahb reported in his Muwatta: Makhrama ibn Bukayr told us from his father, from Ubaydallah ibn Sad, from al-Harith ibn Abi Dhubab, that Jarir al-Bajali, whom Omar ibn al-Khattab ordered to propose for him a woman from the tribe of Dawss, and whom Marwan ibn al-Hakam ordered after him to propose her for himself, and whom Abdallah ibn Omar ordered after that: he entered upon her and informed her of them one after another, then proposed her for himself along with them; she said: by Allah, I do not know whether I am playing or you are serious; he said: rather serious; she married him and bore him two sons ("al-Istidhkar" (5/383), "al-Tamhid" (13/21-22), "Mawahib al-Jalil" (5/37-38)).
Al-Hattab said: al-Bisati declared: the ruling of the sent suitor is that of the two: if she became attached to the one who sent him, he may not propose for himself; otherwise he may. Seventh: when a man delegates a man to marry a woman to him and the agent marries her for himself, she belongs to him, unlike the agent charged with buying merchandise who buys it for himself: over that there is a known dispute in the chapter of agency. Al-Lakhmi, after discussing the matter of purchase whose text this is, said: the marriage does not bind in this case when he delegates him to marry a woman to him and he marries her for himself: she is the agent's wife, and the one who gave the order has no claim, for the woman has her own aim in whom she marries, and it is not imposed upon her to be the wife of one she does not accept. If a man is delegated to marry a woman and does so showing that he is the husband, while secretly testifying that the contract is for the one who sent him, she is not the agent's wife, and the wife has the choice between consenting to be the sender's wife or annulling the marriage ("Mawahib al-Jalil" (5/38)).