Islamic Fiqh > Marriage and family > Marriage impediments > The fornicator, the disbeliever and the owned woman
Contents
Updated on 24 September 2026 at 7:46 PM
This third and final part of the chapter on women prohibited in marriage completes the study of the status of a woman who has committed zina (fornication): may she be married, and on what conditions? It examines the marriage of the fornicating woman in its three cases (pregnant from zina, not yet purified by istibra', purified), the fate of the marriage of a legitimate wife who commits zina, then the women forbidden through disbelief and those forbidden through ownership. The positions of the four schools are reported with their textual proofs, their hadiths and their classical references. The chapter closes with the announcement of the Book of the Dowry (sadaq).
The text opens on the end of the previous point: a man must purify himself until he washes with water; the same applies to what is unlawful and distances the heart from Allah, the Most High, and from the abode of the Hereafter: it even stands as an obstacle between him and faith, until he produces a complete purification through repentance, and a purification of his body with water ("Ighathat al-Lahfan", 1/65, 67). The marriage of the fornicating woman with a man other than the fornicator falls under one of three cases:
The jurists of the four schools differed over the marriage of a woman pregnant from zina: is the contract valid with her or not? And is intercourse with her lawful or not?
Abu Hanifa and Muhammad held that the marriage contract is valid with the woman pregnant from zina, because she is among those permitted by the text, falling under the saying of Allah, the Most High:
"And lawful to you are all others beyond these."
Surah An-Nisa, 24
so any woman in her condition may be married; and because her pregnancy attaches to no one, its existence is equivalent to its absence. However, the husband may not have intercourse with her until she gives birth, according to the saying of the Prophet (peace and blessings of Allah be upon him):
A pregnant woman is not to be touched until she delivers.Authentic hadith, reported by Abu Dawud (2157) and al-Tirmidhi (1564)
This prohibition of intercourse aims to prevent him from watering the crop of another with his water. If she then gives birth six months after the marriage or more, the child's lineage is established to the husband and the child inherits from him; if she gives birth in less than six months, the lineage is not established and the child does not inherit from him ("al-Hidaya", 1/195; "Sharh Fath al-Qadir", 3/242; "al-Ikhtiyar", 3/109; "Tabyin al-Haqa'iq", 2/114; "al-'Inaya", 4/380; "al-Bahr al-Ra'iq", 3/114; "al-Jawhara al-Nayyira", 5/44; "Durrar al-Hukkam, Sharh Ghurar al-Ahkam", 4/69).
The Shafi'is said: the marriage of the woman pregnant from zina is valid, and the husband may have intercourse with her according to the correct view, like the woman in postpartum bleeding, since she has no inviolability ("al-Muhadhdhab", 2/45; "Nihayat al-Matlab", 12/219-220 and 14/306; "al-Bayan", 9/270-271; "Asna al-Matalib", 3/393; "al-Najm al-Wahhaj", 8/136; "Mughni al-Muhtaj", 5/89).
The Malikis, the Hanbalis and Abu Yusuf among the Hanafis held that the marriage contract is not valid with the woman pregnant from zina: since intercourse with her is forbidden in order to preserve the seed, the contract is thereby invalid, for any contract whose legal effect does not attach is invalid; and because it is an honored fetus that may not be aborted.
The marriage of a pregnant woman is therefore not lawful before delivery, according to the saying of the Prophet (peace and blessings of Allah be upon him): "Whoever believes in Allah and the Last Day must not water the crop of another with his water," meaning have intercourse with pregnant women; and according to his saying: "A pregnant woman is not to be touched until she delivers" (reported by Abu Dawud (2157) and al-Tirmidhi (1564)), a hadith of general scope. It is reported from Sa'id ibn al-Musayyib, from a man of the Ansar called Basra:
I married a virgin woman discreetly; I entered upon her and found her pregnant. The Prophet (peace and blessings of Allah be upon him) said to me: "She is entitled to the dower for what you made lawful of her private parts, and the child is a slave to you; if she gives birth, flog her."Weak hadith, reported by Abu Dawud (2131) and al-Hakim in "al-Mustadrak" (2746)
Its apparent meaning establishes the invalidity of marrying a woman pregnant from zina. From Abu al-Darda (may Allah be pleased with him), the Prophet (peace and blessings of Allah be upon him) said:
A woman near the end of her pregnancy was brought to the Prophet (peace and blessings of Allah be upon him) at the entrance of a tent. He said: "Perhaps he intends to return to her?" They said: yes. The Messenger of Allah (peace and blessings of Allah be upon him) said: "I was on the verge of cursing him with a curse that would enter the grave with him: how could he make him inherit when that is not lawful for him? How could he take him into his service when that is not lawful for him?"Reported by Muslim (1441)
Al-Nawawi (may Allah have mercy on him) explains in his commentary on Sahih Muslim: the "mughiyya" (with a m carrying the damma, a j carrying the kasra and an unvowelled h) is the pregnant woman whose delivery is near; the word "fustat" (tent) admits six variant readings; "return to her" means having intercourse with her, while she carries a pregnancy from zina whose intercourse becomes lawful only after delivery. As for the words "how could he make him inherit... how could he take him into his service," the child may be born six months later: he may be from this man who fornicated, as he may be from an earlier man; in the first case he would be his son and they would inherit from each other, although that is not lawful for him, since he is not from him and his competing with the other heirs is not permitted; or the man might take him into service as a slave and own him, which is likewise not lawful, since the child may be from either of the two throughout the period in which paternity remains possible for each of them. The man must therefore refrain from intercourse with her out of fear of this harm: this is the apparent meaning of the hadith. Al-Qadi Iyad said: the meaning is that this fetus may be nurtured by the seed of this fornicating man and become a partner in it, which forbids taking him into service; it is parallel to the hadith: "Whoever believes in Allah and the Last Day must not water with his water the child of another." Al-Nawawi concludes that this view of the qadi is weak or false, for how would inheritance be organized under this interpretation? The correct view is what was stated before ("Sharh al-Nawawi 'ala Sahih Muslim", 10/14-15).
Once this is established, the waiting period becomes obligatory for her and marriage is forbidden during it; for the waiting period originally serves to ascertain the purity of the womb, and before it elapses she may be pregnant, so that her marriage would be null. Likewise the marriage of the woman who was touched under an uncertainty (shubha) is not valid: if the marriage of the pregnant woman is already invalid although intercourse with her does not lead to confusion of lineage, then that of the other is a fortiori invalid, for her child may be from the first man as from the second, which leads to confusion of lineages and makes prohibition more fitting; and because it is intercourse in a vulva, the waiting period becomes obligatory as after intercourse under an uncertainty ("al-Hidaya", 1/195; "Sharh Fath al-Qadir", 3/242; "al-Ikhtiyar", 3/109; "Tabyin al-Haqa'iq", 2/114; "al-'Inaya", 4/380; "al-Bahr al-Ra'iq", 3/114; "al-Jawhara al-Nayyira", 5/44; "Durrar al-Hukkam", 4/69; "al-Istidhkar", 7/512; "al-Ishraf 'ala Nakt Masa'il al-Khilaf", 3/317-318, no. 1153-1154; "Ahkam al-Qur'an", 3/338; "al-Dhakhira", 4/259; "al-Ifsah", 2/139; "al-Mughni", 7/107-108; "al-Muharrar fi al-Fiqh", 2/21; "Zad al-Ma'ad", 5/104; "al-Furu'", 5/99-100; "Kashshaf al-Qina'", 5/90; "Sharh Muntaha al-Iradat", 5/171; "Manar al-Sabil", 2/581).
Second case: that she be a fornicator who has not been purified (istibra') from zina. The jurists differed concerning the woman who committed zina with no apparent pregnancy: is her marriage contract, or intercourse with her, valid although she has not observed the istibra', or is the istibra' required through a waiting period? The Malikis, the Hanbalis and Abu Yusuf held that the contract is not valid until she has observed the istibra'.
The Malikis said: if a woman commits zina or is raped, the istibra' from intercourse with her is incumbent upon her through three menstrual periods, and her marriage is not permitted until she has been purified, according to the saying of the Prophet (peace and blessings of Allah be upon him):
It is not lawful for a man who believes in Allah and the Last Day to water the crop of another with his water.Hasan hadith, reported by Abu Dawud (2158) and Ahmad (17031)
And because she is not attached to any husband, the contract is therefore not permitted; if he contracts the marriage before purifying her, he is like the one who marries a woman in her waiting period, and intercourse with her never becomes lawful for him if he consummated in that state.
Malik said: if a man marries a free woman, consummates the marriage, and she gives birth after one month, he may never marry her again, for he had intercourse with her during a waiting period. Ibn Abd al-Barr (may Allah have mercy on him) said: as for Malik's argument, he drew an analogy between the purification of the womb from zina through three periods in a free woman and the ruling of the annulled invalid marriage; for the ruling of the invalid marriage is, according to all, that of the valid marriage as regards the waiting period; the same applies to zina, since in a free woman one does not wait out another's womb in less than three periods, by analogy with the waiting period ("al-Istidhkar", 7/512).
Ibn al-Arabi (may Allah have mercy on him) said: Malik held that although the water of zina has no inviolability, the water of marriage has one; and among its inviolabilities is that it not be poured over the water of concubinage, so that the unlawful is not mixed with the lawful, nor the water of abasement blended with the water of honor. Malik's insight was thus stronger than that of the other jurists of the cities ("Ahkam al-Qur'an", 3/338; "al-Dhakhira", 4/259; "al-Ishraf 'ala Nakt Masa'il al-Khilaf", 3/317-318, no. 1153-1154; "al-Ifsah", 2/139).
The Hanbalis said: if a woman commits zina, her marriage is not lawful for one who knows it except after her waiting period has elapsed; if she conceives from zina, her waiting period ends with delivery, and her marriage is not lawful before it, according to the two hadiths already cited ("It is not lawful..." and "A pregnant woman is not to be touched until she delivers," reported by Abu Dawud (2157) and al-Tirmidhi (1564)), a hadith of general scope. There follow the report of Sa'id ibn al-Musayyib and the hadith of Abu al-Darda, already quoted, whose apparent meaning establishes the invalidity of marrying a woman pregnant from zina.
The demonstration already given is repeated here: the waiting period serves to ascertain the purity of the womb; before it, she may be pregnant and her marriage would be null, like that of the woman touched under an uncertainty; intercourse with a pregnant woman does not lead to confusion of lineage, whereas this woman's child may be from the first man as from the second, which leads to confusion of lineages and makes prohibition more fitting; and because it is intercourse in a vulva, the waiting period becomes obligatory as after intercourse under an uncertainty ("al-Ifsah", 2/139; "al-Mughni", 7/107-108; "al-Muharrar fi al-Fiqh", 2/21; "Zad al-Ma'ad", 5/104; "al-Furu'", 5/99-100; "Kashshaf al-Qina'", 5/90; "Sharh Muntaha al-Iradat", 5/171; "Manar al-Sabil", 2/581).
Ibn Qudama (may Allah have mercy on him) said: every woman in a waiting period from other than a valid marriage, like the fornicator, the woman touched under an uncertainty, or one in an invalid marriage, falls, by the analogy of the madhhab, under the prohibition of her marriage to the man who had intercourse with her and to others; and it is preferable to make her marriage lawful with the one for whom she observes the waiting period, if the lineage of her child may attach to him; for the waiting period aims to preserve her water and safeguard the child's lineage, and an honored water is not preserved from an honored water, nor is the lineage safeguarded from it. That is why it was permitted for the wife under mutual cursing (mukhali'a) to marry the one who pronounced the curses with her, as well as any man to whom the lineage of her child cannot attach; unlike the fornicator, whose marriage to her is not lawful, because it leads to confusion of lineage. The man who touched a woman under an uncertainty is therefore like the others: the child's lineage attaches to neither of the two ("al-Mughni", 8/102).
Shaykh al-Islam Ibn Taymiyya (may Allah have mercy on him) said: Malik and Ahmad require the istibra', and this is the correct view; but Malik, and Ahmad in one narration, require the istibra' of a single period; the other narration from Ahmad, followed by many of his companions such as Qadi Abu Ya'la and his followers, requires three periods. The correct view is that only the istibra' is required; for she is not a wife upon whom a waiting period is obligatory, and she is not more considerable than the purified woman (mustabra'a) whose child attaches to her master: the latter has only the istibra' to observe, and this one is more worthy of the same treatment ("Majmu' al-Fatawa", 32/110).
Abu Hanifa, Muhammad and the Shafi'is held that the marriage of the fornicator is permitted even if he sees her commit zina and even if she has not observed the istibra', and that he may have intercourse with her before purifying her, like the one who sees his wife commit zina: intercourse with her does not become forbidden to him; according to the saying of the Most High: "And lawful to you are all others beyond these" (Surah An-Nisa, 24), and the saying of the Prophet (peace and blessings of Allah be upon him): "The unlawful does not render the lawful unlawful"; now the contract with the fornicator was lawful before the zina and before the pregnancy, so the zina does not render it unlawful.
It is reported that a man had a son who married a woman who had a daughter; the young man committed zina with the girl. Umar (may Allah be pleased with him) questioned them both and was satisfied; they confessed, and he flogged them both. He was keen to join the two in marriage, but the young man refused. Umar did not take into account the elapsing of the waiting period, and no one objected to him: this indicates a consensus; for it is either intercourse whose lineage attaches to no one, or a pregnancy that attaches to no one, so that nothing prevented the validity of the marriage, as if these acts had never existed ("al-Hidaya", 1/195; "Sharh Fath al-Qadir", 3/242; "al-Ikhtiyar", 3/109; "Tabyin al-Haqa'iq", 2/114; "al-'Inaya", 4/380; "al-Bahr al-Ra'iq", 3/114; "al-Jawhara al-Nayyira", 5/44; "Durrar al-Hukkam", 4/69; "al-Muhadhdhab", 2/45; "Nihayat al-Matlab", 12/219-220 and 14/306; "al-Bayan", 9/270-271; "Asna al-Matalib", 3/393; "al-Najm al-Wahhaj", 8/136; "Mughni al-Muhtaj", 5/89).
Third case: that she be neither pregnant nor under the istibra' from zina. The jurists of the cities agreed, as mentioned, that when a woman commits zina, observes the istibra', is not pregnant and repents from zina, her marriage is permitted; they differed if she does not repent: is her marriage permitted or not?
The majority of the jurists, the Hanafis, Malikis and Shafi'is, said: her marriage is permitted even if she does not repent, according to the details given above. The Hanbalis held that it is not permitted unless she repents, as explained above.
The jurists of the four schools agreed that when a married woman commits zina, her marriage is not dissolved; according to the hadith of Aisha (may Allah be pleased with her):
A man came to the Prophet (peace and blessings of Allah be upon him) and said: "Messenger of Allah, my wife does not repel the hand of a toucher." He said: "Divorce her." He said: "I love her." He said: "Enjoy her, then"; in another version: "Keep her, then."Authentic hadith, reported by Abu Dawud (2049) and al-Nasa'i (3229, 3464)
For if the husband acknowledged that she committed zina, her marriage would not be dissolved on account of him; likewise when the zina is established without his acknowledgment, in consideration of all the principles in both directions ("al-Ma'una", 1/533).
Abu Bakr al-Jassas (may Allah have mercy on him) said: the jurists of the cities agree on the permissibility of the marriage, and that zina entails neither her prohibition to the husband nor separation between them ("Ahkam al-Qur'an" by al-Jassas, 5/108). He also said: among people there are some who hold that marrying the fornicator or keeping her in marriage is blameworthy and disapproved as long as she persists in zina, even though this does not affect the validity of the marriage; because Allah, the Most High, only permitted marriage with the chaste among the believing women and among the People of the Book, by His saying: "The chaste women among the believers, and the chaste women among those who were given the Scripture before you" (Surah al-Ma'ida, 5), meaning the chaste among them; and because, if she is such, it cannot be guaranteed that she will not bear a child from zina, attribute it to him and make him inherit his wealth. The statement of whoever permits this marriage is therefore understood of a repentant woman who does not persist in zina.
Among the proofs that her zina does not entail separation: Allah, the Most High, ruled for the husband who accuses her through mutual cursing (li'an), then separation between them; if the existence of zina on her part entailed separation, separation should follow from his mere accusation, since he admits what entails separation. Does he not see that, if he acknowledged that she was his sister through breastfeeding or that his father had intercourse with her, separation would follow from that very statement?
If it is said: when Allah ruled separation after the mutual cursing, that indicates that zina entails prohibition, otherwise separation would not follow from the cursing; it is said to him: were it as you say, separation would follow from the accusation itself, without the cursing; the fact that it does not follow from it proves the falsity of what you said.
If it is said: separation follows from the cursing only because it becomes like testimony against her of zina, and when she is so ruled, separation is ruled because of the zina; it is said to him: this too is wrong; for the husband's single testimony against her does not make her a fornicator, just as her testimony against him of falsehood does not establish the ruling of lying against him in his accusation; neither of the two testimonies is stronger than the other. And if the husband's testimony against her were legally binding, the zina punishment would have to be applied to her; the fact that it is not applied by that proves that his word does not establish the zina, and Allah knows best what is right ("Ahkam al-Qur'an" by al-Jassas, 5/108, 110).
Al-Mawardi (may Allah have mercy on him) said: the wife who commits zina, is her marriage dissolved or not? The madhhab of al-Shafi'i and the majority of the jurists is that the marriage is valid and is not dissolved by her zina; this is the position of the Companions, except for a report from Ali ibn Abi Talib (may Allah be pleased with him) that her marriage is annulled, a position shared by al-Hasan al-Basri, owing to the prohibition of the meeting of the two waters in one vulva.
Our proof, in addition to the hadith of Aisha cited above, is what Abu al-Zubayr reported from Jabir:
A man came to the Prophet (peace and blessings of Allah be upon him) and said: my wife does not repel the hand of a toucher. He said: divorce her. He said: I love her. He said: enjoy her.Reported by Abu al-Zubayr from Jabir
By "she does not repel the hand of a toucher" he referred to zina, and ordered him to divorce her; had her marriage been dissolved by the zina, he would not have needed a divorce. Then, when the man told him that he loved her, he permitted him to enjoy her; had she become forbidden to him, he would have turned him away from her and informed him of her prohibition.
If it is said: his words "she does not repel the hand of a toucher" mean that she does not repel a beggar asking her for money; it is answered: this is wrong on two counts. First, had he meant that, he would have said "the hand of a seeker," for the one who asks is a seeker, whereas the "toucher" has direct contact; his choosing "the hand of a toucher" excludes this interpretation. Second, were she giving away his wealth in charity, his statement about her would not have exonerated him, and he would not have ordered divorce; he would have ordered him to secure his wealth from her.
It is reported that a man said: "Messenger of Allah, my wife has given birth to a black boy," and the Prophet (peace and blessings of Allah be upon him) replied: "Perhaps it is a strain ('irq) that prevailed"; words that alluded to her zina with a black man, without forbidding her to her husband. Al-'Ajlani informed the Messenger of Allah (peace and blessings of Allah be upon him) that he had found a man with his wife: he pronounced mutual cursing between them and did not render her forbidden on account of zina. It is also reported that the Prophet said: "Do not commit zina, or your women will commit zina: the sons of so-and-so committed zina and their women committed zina" (this statement was not found with this wording), evidence that they remained with their wives after zina. As for the prohibition of the meeting of the two waters in one vulva, we hold it forbidden: when the two meet, the ruling of the lawful between them is established and the ruling of the unlawful falls away ("al-Hawi al-Kabir", 9/190-191).
Ibn Hubayra (may Allah have mercy on him) said: they agreed that the woman made chaste by marriage, if she commits zina, her marriage is not dissolved from her husband ("al-Ifsah", 2/139). Ibn Qudama (may Allah have mercy on him) said: if a man's wife commits zina, or her husband does, the marriage is not dissolved, whether before or after consummation, in the view of most of the people of knowledge; so said Mujahid, 'Ata', al-Nakha'i, al-Thawri, al-Shafi'i, Ishaq and the adherents of opinion (ahl al-ra'y). It is reported from Jabir ibn Abdallah that when a woman commits zina, the two are separated and she receives nothing; the same is reported from al-Hasan; and from Ali (may Allah be pleased with him) that he separated a man from his wife who had committed zina before he consummated with her; their position was supported by the argument that had he accused her and pronounced mutual cursing, she would have become separated from him through the establishment of zina against her, which indicates that zina forbids her.
Our position: the mere claim of zina against her does not forbid her; if the marriage were dissolved by it, it would be dissolved by the mere claim, like breastfeeding. And because zina is a sin that does not expel from Islam, resembling theft in this respect. As for mutual cursing, it entails dissolution without there being zina: the proof is that if she answers his accusation with the cursing, her zina is not established; that is why the Prophet (peace and blessings of Allah be upon him) made the punishment obligatory on whoever accuses her, and the dissolution takes place.
Ahmad, however, preferred that a man separate from his wife if she commits zina. He said: "I do not think one should keep such a woman," because it cannot be guaranteed that she will not corrupt his bed and attribute to him a child that is not from him. Ibn al-Mundhir said: perhaps the one who disliked this woman disliked her in a way other than prohibition, which would accord with this statement of Ahmad ("al-Mughni", 7/108-109).
The jurists differed over this: the Hanafis and the Shafi'is hold that intercourse with her is permitted. The Hanafis said: if a man's wife commits zina, she does not become forbidden to him and he may have intercourse with her after the zina ("al-Bahr al-Ra'iq", 3/103; "Majma' al-Anhar", 1/485; "Hashiyat Ibn Abidin", 3/50). The Shafi'is said: the marriage of the woman pregnant from zina is valid and intercourse with her is permitted according to the correct view, like the woman in postpartum bleeding, since she has no inviolability; they did not distinguish the wife from other women ("al-Muhadhdhab", 2/45; "Nihayat al-Matlab", 12/219-220 and 14/306; "al-Bayan", 9/270-271; "Asna al-Matalib", 3/393; "al-Najm al-Wahhaj", 8/136; "Mughni al-Muhtaj", 5/89).
The Malikis and the Hanbalis held that intercourse is not permitted until she has observed the istibra'. The Malikis said: if a woman commits zina or is raped, she must remain for the duration of her waiting: if she menstruates, she remains three periods, by way of istibra' and not of a waiting period; or three months if she is a young girl or past menopause; or a year if her menstruation is delayed without cause, if she suffers irregular bleeding without discernment, or is ill. The woman's statement "the rapist and those with him did not have intercourse with me" is not taken into account, and she is not believed in any of it, even if the rapist and his companions confirm her words; for the istibra' is a right of Allah. The husband may therefore not have intercourse with his wife during her istibra' period, nor enjoy her in any other way, and no one may contract a marriage with that woman during her istibra', whether the contractor is her husband who dissolved the marriage or a stranger; this applies to the husband both literally and figuratively; for wherever enjoyment is forbidden, the contract is forbidden too, except menstruation, postpartum bleeding, fasting and seclusion (i'tikaf).
This is when her pregnancy is not apparent; if she is visibly pregnant and then commits zina, intercourse with her is disapproved but not forbidden according to the correct view.
Al-Dasuqi (may Allah have mercy on him) said: the summary is as follows: if a pregnant woman commits zina, may her husband, from whom she conceived before the zina, have intercourse with her before she delivers, or not? There are three positions: permission, disapproval and prohibition. But if she conceived from zina or rape, intercourse with her is forbidden to her husband before delivery, by consensus ("Hashiyat al-Dasuqi with the Sharh al-Kabir", 3/416; "Sharh Mukhtasar Khalil", 4/140-141).
Ibn Yunus (may Allah have mercy on him) says in "al-Jami' li-Masa'il al-Mudawwana" (10/594-595): whoever's wife commits zina and he has intercourse with her in that water, nothing is against him. Ibn al-Mawwaz said: he should not have intercourse with her in that water. Ashhab said: a woman visibly pregnant from her husband, if she is taken by force, I see no harm in her husband having intercourse with her in that state. Asbagh said: I disapprove of it, but it is not unlawful, and I think Malik disapproved of it. Ibn Habib said: if her pregnancy is not apparent, he may not have intercourse with her except after three periods.
Al-'Adawi (may Allah have mercy on him) said: the woman with whom he fornicated and the raped woman, while she is pregnant from her husband or her master: enjoyment with her is not forbidden to the husband or the master, even if he has intercourse; though it is disapproved, or contrary to what is preferable ("Hashiyat al-'Adawi", 2/162).
As for the Hanbalis, Ibn Qudama (may Allah have mercy on him) said: Ahmad said: he may not have intercourse with her until he has purified her with three periods; because of the report of Rufay' ibn Thabit:
I heard the Messenger of Allah (peace and blessings of Allah be upon him) say on the day of Hunayn: "It is not lawful for a man who believes in Allah and the Last Day to water the crop of another with his water."Hasan hadith, reported by Abu Dawud (2158) and Ahmad (17031)
meaning intercourse with the pregnant woman; and because she may carry a child from zina that would be attributed to the husband. The preferred view is that a single period suffices for her istibra'.
The people of knowledge agreed on the permissibility for a Muslim of marrying a woman of the Book, and on the prohibition of marrying polytheistic women, Magian women (majus) and any woman who does not follow a revealed religion, such as one who worships whatever she approves among idols, stones, trees or animals: their women are forbidden, according to His saying (Surah al-Baqara, 221) and His saying (Surah al-Mumtahanah, 10). This prohibition is lifted for the People of the Book; whoever goes beyond them remains under the apparent prohibition (the sources cited earlier).
"And do not marry polytheistic women until they believe."
Surah al-Baqara, 221
"And do not hold to marriage bonds with disbelieving women" (Surah al-Mumtahanah, 10). Allah also said: "And this is a Book We have sent down, blessed... lest you say: The Book was sent down only to two groups before us" (Surah al-A'raf, 156-157), that is: it was sent down to you so that you would not say "the Book was sent down only to two groups before us." If the majus were among the People of the Book, the People of the Book would be three groups, which would contradict the statement of the Prophet (peace and blessings of Allah be upon him), something impossible. Moreover, were this a report of the polytheists' claim, the verse would be evidence in our favor: he reported their claim without following it with denial, and the wise man, when he reports a wrong, changes it.
Ahmad was asked: is it authentic from Ali that the majus have a Book? He replied: this is false, and he strongly disapproved of it; and even if it were established that they have a Book, the ruling of the People of the Book applies only to the two Peoples of the Book (Jews and Christians).
As for the saying of the Prophet (peace and blessings of Allah be upon him): "Treat them according to the practice of the People of the Book," it proves that they have no Book: the Prophet intended by it to spare their blood and to have them acknowledge the jizya, nothing more; since they presented a resemblance to people of a Book, that resemblance prevailed in forbidding their blood; the ruling of prohibition must therefore prevail likewise for their women and their slaughtered animals; and if we give precedence to the resemblance in prohibition, giving precedence to the textual evidence that opposes that resemblance is all the more sound. Nor has it been established that Hudhayfa married a Magian woman. As for their acknowledgment of the jizya: because we gave precedence to the ruling of prohibition for their blood, the ruling of prohibition must be given precedence for their slaughter and their women ("al-Mabsut", 4/211; "Bada'i' al-Sana'i'", 2/271; "al-Ishraf 'ala Nakt Masa'il al-Khilaf", 3/328-329, no. 1164; "al-Bayan", 9/260-261; "al-Ishraf" by Ibn al-Mundhir, 5/94; "al-Mughni", 7/100).
Ibn Rushd al-Qurtubi (may Allah have mercy on him) said: they agreed that it is not permitted for a Muslim to marry the idolatrous woman, by virtue of His saying "And do not hold to marriage bonds with disbelieving women"; they differed over taking her through ownership ("Bidayat al-Mujtahid", 2/33).
Al-Kasani (may Allah have mercy on him) said: among the conditions is that the woman not be a polytheist when the man is a Muslim: a Muslim may not marry the polytheistic woman, according to His saying: "And do not marry polytheistic women until they believe" (Surah al-Baqara, 221); he may, however, marry the woman of the Book, according to His saying: "the chaste women among those who were given the Scripture before you" (Surah al-Ma'ida, 5). The difference is that the original rule forbids a Muslim to marry the disbelieving woman: union with a disbeliever, mingling with her amid religious enmity, produces neither tranquility nor affection, which are the essence of the purposes of marriage. But Allah permitted marriage with the woman of the Book in hope of her conversion: she believed, in general terms, in the books of the prophets and messengers; she only nullified that general belief by its specification because she had been told of a command contrary to the truth; so it appears that, as soon as she is alerted to the reality, she will awaken and come to faith in detail, in proportion to her belief in general terms.
Such is the apparent state of the one whose affair rests on evidence, not on desire and inclination: the husband calls her to Islam and alerts her to the reality; the Muslim's marriage to her therefore carries the hope of her conversion, and Allah permitted this marriage for that good outcome, unlike the polytheistic woman: in her choice of polytheism, her affair rests not on proof but on blind imitation, with the pride of rejecting a report that issues from none other than the one whose word must be accepted and followed, namely the Messenger; it thus appears that she does not examine the proof nor turn to it when called; union with the disbeliever, amid the religious enmity that prevents tranquility, union and affection, therefore remains without a good outcome, and her marriage was not permitted. Whether the woman of the Book is free or a slave is equal in our view.
Al-Shafi'i said: marrying a slave woman of the Book is not permitted, but intercourse with her is lawful through right-hand possession ("Bada'i' al-Sana'i'", 2/270-271; "al-Mabsut", 4/211; "al-Ishraf 'ala Nakt Masa'il al-Khilaf", 3/328-329, no. 1164; "al-Bayan", 9/260-261; "al-Ishraf" by Ibn al-Mundhir, 5/94; "al-Mughni", 7/100).
Al-Qadi Abd al-Wahhab (may Allah have mercy on him) said: marrying Magian women and the other forms of polytheism that have no Book is not permitted, contrary to Abu Thawr who allowed it for the majus; and it is one of the two views of the Shafi'is in their statement "they are People of the Book," by the generality of His saying: "And do not marry polytheistic women until they believe" (Surah al-Baqara, 221) and what His saying: "the chaste women among those who were given the Scripture" (Surah al-Ma'ida, 5) indicates, namely that the others have not their ruling; and because they do not hold fast to a Book, like the worshipper of idols ("al-Ishraf 'ala Nakt Masa'il al-Khilaf", 3/328-329, no. 1164).
The ruling on marriage with the apostate woman: the jurists of the four schools agreed that marriage with an apostate woman is not lawful; for it is without benefit: the purposes of the legislation of marriage are its interests, which cannot be realized, since the apostate is put to death; and because the two spouses no longer have a religion, having left Islam without remaining in what they turned to.
The Hanafis said: the marriage of the apostate woman with anyone is not permitted; for she is commanded to reflect so as to return to Islam, and is prevented from occupying herself with anything else; and because apostasy has made her forbidden, marriage being reserved, at its origin, for a lawful subject; hence her marriage with anyone is not permitted ("al-Mabsut", 5/49; "al-Ikhtiyar", 3/139; "al-Fatawa al-Hindiyya", 1/282).
Al-Kasani said: among the conditions is that the two spouses have a religion that they both affirm; failing that, because one of the two is an apostate, his marriage is not permitted at all, neither with a Muslim nor with a non-apostate disbeliever; the apostate is in the same case, for he has left the religion of Islam and apostasy is not affirmed: he is rather compelled to return to Islam, either by execution if he is a man, by consensus; or by imprisonment and beating if she is a woman, in our view, until she dies or converts. Apostasy thus has the meaning of death, being a cause leading to it, and the dead cannot be a subject of marriage; and because the right of marriage is a protected ownership, and there is no protection with the apostate woman; and because the apostate's marriage cannot be a means to the purposes sought from it, since he is compelled to return to Islam as we have shown: it therefore does not yield its benefit and it is not permitted. The proof is that apostasy, when it interrupts an already concluded marriage, annuls it; a fortiori, when it accompanies it from the start, it prevents its existence, like breastfeeding, for prevention is easier than removal ("Bada'i' al-Sana'i'", 2/270).
The Malikis said: marriage of the male or female apostate is not permitted; for any meaning that befalls a marriage requires its annulment; when it exists from the outset it prevents the contract; its two origins are ownership and breastfeeding ("al-Jami' li-Masa'il al-Mudawwana", 9/396).
The Shafi'is said: no one may marry the apostate woman: not a Muslim, for she is a disbeliever like the idolatress and does not affirm [Islam]; not a disbeliever, for the bond of Islam remains in her; not an apostate, for the purpose of marriage is permanence, and she is not one who remains ("al-Umm", 5/57; "Asna al-Matalib", 3/162).
The Hanbalis said: the apostate woman's marriage is forbidden whatever religion she turns to; for the ruling of the people of the religion she embraced is not established for her in their affirmation of her; her prohibition is therefore more fitting ("al-Mughni", 7/101).
The jurists agreed that a man may not marry his own slave woman and that no marriage may be concluded for him with her: he owns, before the marriage, a right over the vulva stronger than that of marriage, and marriage exists only to make the vulva lawful. Allah, the Most High, said:
"And they who guard their private parts, except from their wives or those their right hands possess: for then they are not to be blamed."
Surah al-Mu'minun, 5-6
He distinguished marriage from right-hand possession and made the vulva lawful only through one of the two; it follows that they cannot be combined and that ownership annuls the marriage, whether earlier or later: if a marriage could be contracted over an ownership, an ownership could be contracted over an ownership and a marriage over a marriage.
The ownership of a part of the slave counts here like the ownership of the whole; likewise the right of ownership over the mukatab (a slave under a manumission contract) and the slave granted permission: right-hand possession is stronger than the ownership of marriage, and there is no benefit in establishing the weaker while the stronger is established; and because the right of marriage creates, for each of the two spouses against the other, rights of allotment, sharing of the night and others, which right-hand possession prevents: the marriage is therefore not valid in the presence of what contradicts it ("Bada'i' al-Sana'i'", 2/272; "al-Ikhtiyar", 3/109; "al-Bayan wa-l-Tahsil", 5/18; "al-Dhakhira", 4/341; "al-Insaf", 8/147; "Sharh Muntaha al-Iradat", 5/178; "Kashshaf al-Qina'", 5/96).
The imam Ibn Qudama (may Allah have mercy on him) said: the master may not marry his slave woman; for ownership of the person yields ownership of the benefit and the lawfulness of the vulva, with which no weaker contract can combine. And if he acquires ownership of his wife while she is a slave woman, her marriage is dissolved; likewise, if the woman acquires ownership of her husband, her marriage is dissolved; and we know of no disagreement on this point ("al-Mughni", 7/113).
Likewise, a woman may not marry her own male slave, by consensus. The imam Ibn al-Mundhir (may Allah have mercy on him) said: they agreed on the invalidity of a woman's marriage to her slave ("al-Ijma'", 386).
Ibn Qudama said: marriage to his mistress is forbidden to the slave. Ibn al-Mundhir said: the people of knowledge agreed on the invalidity of a woman's marriage to her slave. Al-Athram reported with his chain of transmission from Abu al-Zubayr who said: "I asked Jabir about the slave who marries his mistress; he answered: a woman came to Umar ibn al-Khattab (may Allah be pleased with him) while we were at al-Jabiya; she had married her slave. Umar rebuked her and came close to stoning her, and said: it is not lawful for you" ("al-Mughni", 7/113 and previous sources). The prohibition lies in the incompatibility of the rulings of marriage and ownership: each of the two requires the other to submit to its ruling, that one travel with him on his journeys and reside with him, and that one be maintained by him; the two rulings therefore exclude each other.
With this sheet the chapter on women prohibited in marriage comes to an end; the encyclopedia proceeds with the Book of the Dowry (sadaq).