Islamic Fiqh > Marriage and family > Marriage impediments > Third type: prohibition through marriage affinity (musahara)
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
The women forbidden through affinity are four, forbidden as permanent causes.
1. The mother of his wife: by the words of Allah "the mothers of your wives" (An-Nisa, 23). The mother of his wife is forbidden, and every mother to her by descent or suckling, near or far, by the mere contract upon the daughter, whether he has consummated or not, according to the jurists of the four schools and most of the jurists of Islam. A hadith states: "Any man who marries a woman and consummates the marriage: her daughter's marriage is not lawful for him; if he has not consummated it, he may marry her daughter. And any man who marries a woman, whether he has consummated it or not: her mother's marriage is not lawful for him" (narrated by Tirmidhi 1117; a weak hadith: Abu Isa (al-Tirmidhi) said this hadith is not sound in its chain, transmitted by Ibn Lahi'a and al-Muthanna ibn al-Sabbah from Amr ibn Shu'ayb, both weakened in hadith; the practice of most scholars accords with it: when a man marries a woman then divorces her before consummating, her daughter becomes lawful to him; but when he marries the daughter then divorces her before consummating, the mother does not become lawful to him, by the words of Allah "the mothers of your wives": the view of al-Shafi'i, Ahmad and Ishaq).
Ali ibn Abi Talib is reported to have said: "The mother of the wife is not forbidden unless he has consummated with her daughter". Ibn Abd al-Barr said: I know of no one among the jurists of the regions, the people of opinion and of hadith toward whom and whose companions the fatwa turns, who held this; the hadith from Ali concerning it is weak, not authentic: Khallas relates reproachable matters from Ali and the people of hadith science do not authenticate his transmission (al-Istidhkar 5/458).
The Imam Ibn Rushd said: as for the mother, the majority of the jurists of all the regions went to her being forbidden by the contract upon the daughter, consummated or not; a group went to her not being forbidden except by consummation upon the daughter, as is the case with the stepdaughter, related from Ali and Ibn Abbas through weak chains. The basis of the disagreement: does the condition in the words of Allah "whom you have consummated with" (An-Nisa, 23) refer to the nearest named, the stepdaughters only, or also to the mothers named before them in the words of Allah "the mothers of your wives and your stepdaughters who are in your care, born of your wives whom you have consummated with" (An-Nisa, 23)? These words may refer to the mothers and the daughters, or to the nearest named, the daughters. The proof of the majority is the already cited hadith of Amr ibn Shu'ayb (Bidayat al-Mujtahid 2/25-26; see Sharh Sahih al-Bukhari by Ibn Battal 7/206-207, al-Istidhkar 5/458, 460, al-Hawi al-Kabir 9/207-208).
Ibn Qudama said: whoever marries a woman: every mother to her by descent or suckling, near or far, is forbidden by the mere contract; Ahmad stated this explicitly; it is the view of most of the people of knowledge: Ibn Mas'ud, Ibn Umar, Jabir, Imran ibn Husayn and many of the successors; Malik, al-Shafi'i and the people of opinion hold it. It is related from Ali that she is not forbidden except by consummation with her daughter, as her daughter is not forbidden except by consummation. Our proof: the words of Allah "the mothers of your wives" (An-Nisa, 23): the one contracted among his wives: so her mother enters the generality of the verse. Ibn Abbas said: "Treat as general what the Quran stated as general", that is: apply the ruling generally in every state, without distinguishing the one consummated with from the other (a weak report: narrated by Bayhaqi in al-Kubra 7/160 with the wording "she is ambiguous and he disliked it", Qatada being in the chain, a mudallis without explicit statement of audition).
Zayd said: she is forbidden by consummation or by death, which stands in place of consummation; we have already mentioned what establishes the prohibition absolutely, consummation, death or nothing: she has become forbidden through affinity in an ambiguous manner, so she is forbidden by the mere contract, like the son's wife and the father's wife (al-Mughni 7/85, Sharh Muntaha al-Iradat 5/158, Manar al-Sabil 2/573).
2. The stepdaughter (his wife's daughter) if he consummated with her mother, by consensus: by the words of Allah "your stepdaughters who are in your care, born of your wives whom you have consummated with" (An-Nisa, 23). When a man contracts marriage with a woman and consummates it, her daughter who is in his household is forbidden to him forever; if the wife dies or he divorces her before consummation, her daughter remains lawful to him. The Imam Ibn Abd al-Barr said: Allah said "forbidden to you are your mothers and your daughters... and the mothers of your wives and your stepdaughters who are in your care, born of your wives whom you have consummated with" (An-Nisa, 23); the community agreed that the man who married a woman having a daughter: the daughter is not lawful to him after the mother's death or separation if he consummated; if he did not consummate with the mother until separation, the marriage of the stepdaughter remains lawful to him; the words of Allah "born of your wives whom you have consummated with" are a sound condition regarding the stepdaughters in their households (al-Istidhkar 5/457).
The daughter intended is every daughter of the wife by descent or suckling, near or far, heir or not: so forbidden are the daughters of the woman's daughter and the daughters of her son, falling under the name of stepdaughter. Whether she is in his household or not, she is forbidden once he consummates with her mother: consummation with the mothers forbids the daughters absolutely; the mention of the household in the verse exits by custom and prevalence, not as a condition: he described her so to define her, the custom being that the stepdaughter is in his household. This is the view of most of the Hanafi, Maliki, Shafi'i, Hanbali jurists and others; it is nonetheless related from Umar and Ali that they permitted it when she was not in his household, the view of Dawud, by the words of Allah "your stepdaughters who are in your care" (An-Nisa, 23). Ibn al-Mundhir said: the scholars of the regions agreed against this view; and upbringing has no effect in the prohibition, as with the other forbidden women.
Ibn Qudama said: the verse did not come as a condition but as a description of her usual state; what exits by prevalence does not support reasoning from the implied meaning; if he has not consummated with the woman, her daughter is not forbidden to him according to most of the scholars of the regions once she is separated from his marriage; unless he dies before consummation: two narrations. The first: her daughter is forbidden: the view of Zayd ibn Thabit and the choice of Abu Bakr, for death stands in place of consummation in completing the waiting period and the dower: it therefore stands in place of it in the prohibition of the stepdaughter. The second: she is not forbidden: the view of Ali and the madhhab of most scholars. Ibn al-Mundhir said: the common scholars of the regions agreed: the man who married a woman then divorced her, or she died before consummation, may marry her daughter: Malik, al-Thawri, al-Awza'i, al-Shafi'i, Ahmad, Ishaq and Abu Thawr say so, and those who followed them; Allah said: "if you have not consummated with them, no sin shall be upon you" (An-Nisa, 23): a text not abandoned for a weak analogy nor for the hadith of Abdallah ibn Umar already mentioned; she was separated before consummation, so the stepdaughter is not forbidden, as with divorce; and death does not play the role of consummation in preservation, lawfulness and the waiting period of peers: even if it stood in place of it from every angle, the explicit text of Allah and His Messenger is not abandoned for an analogy or anything else (al-Mughni 7/85-86).
The jurists differed: is it intercourse with the mother that forbids the stepdaughter, or mere seclusion with her and enjoyment short of intercourse, or looking at her private parts or body with desire? The Hanafis, Malikis, Shafi'is in one view and some Hanbalis went to: whoever touched a woman short of the private parts with desire, or looked at her private parts, the prohibition of affinity attaches: he may not marry her daughter without intercourse; it is related from Umar with no known opponent among the Companions; it is enjoyment through contact, to which attach the prohibition of affinity and the stepdaughter as to intercourse; and the raised report: "Whoever looks at the private parts of a woman: her mother and her daughter are not lawful to him" (a munkar hadith: Ibn Abi al-Shayba, al-Musannaf 16235). Likewise, according to the Malikis of the madhhab, if he looked at her hair, her chest or any of her beauties with enjoyment, her mother and daughter are forbidden; the second view: no, for it is enjoyment without contact, like thinking.
The proof that looking brings about the prohibition is that it involves a kind of enjoyment: it therefore judges like marriage, the rulings attaching to meanings not words; it may also be said it is a form of joining in enjoyment: looking is joining and meeting, with enjoyment between the lovers (Fatawa al-Sughdi 1/255, al-Ikhtiyar 3/110, Sharh Fath al-Qadir 3/224, al-Jawhara al-Nayyira 4/278, al-Fatawa al-Hindiyya 1/274, al-Istidhkar 5/460, al-Ishraf 3/323 no. 1160, Tafsir al-Qurtubi 5/113, Bidayat al-Mujtahid 2/25, Sharh Mukhtasar Khalil 3/208, Tahrir al-Mukhtasar 2/603, al-Bayan 9/251-252, al-Najm al-Wahhaj 7/162, Mughni al-Muhtaj 4/295, al-Mughni 7/86, 93).
The Shafi'is in the more apparent view and the Hanbalis of the madhhab: no prohibition of affinity or stepdaughter attaches unless he has intercourse with the mother; consummation is intercourse, which the Law called entry; if he stays alone with her without intercourse, her daughter is not forbidden: she has not been consummated with, by the words of Allah "your stepdaughters who are in your care, born of your wives whom you have consummated with; if you have not consummated with them, no sin shall be upon you" (An-Nisa, 23): He made consummation a condition, and this is not a consummation; and it is a touch not requiring the major ablution: the prohibition does not attach to it, like touch without desire. And if he looked at her private parts with desire, no prohibition of affinity or stepdaughter attaches, according to the Shafi'is in the sahih and the Hanbalis of the madhhab: he looked at a part of her body, without effect, as with looking at her face: there is no disagreement that looking at the face does not establish the prohibition, and likewise the rest; nor that looking without desire spreads no prohibition, for touch, which is stronger, has no effect without desire: the look is more deserving still.
The cause of their disagreement: does the implied meaning of the condition of consummation in "whom you have consummated with" mean intercourse or enjoyment short of it; and if enjoyment, does looking fall within it? (Tafsir al-Qurtubi 5/113, Bidayat al-Mujtahid 2/25, al-Bayan 9/251-252, al-Najm al-Wahhaj 7/162, Mughni al-Muhtaj 4/295, al-Mughni 7/86, 93, Sharh Muntaha al-Iradat 5/160).
3. His father's wife, through the father and the mother however high they rise: forbidden to the son. When a man marries a woman, she is forbidden to the husband's son, whether the husband consummated or not, by consensus, by the words of Allah:
"Do not marry the women your fathers married, except what has already passed"
Surah An-Nisa, 22
It embraces the contract and intercourse: every woman upon whom the father passed a valid marriage contract is forbidden to the son by the mere contract: forbidden to the man is his father's wife, near or far, heir or not, by descent or suckling: the mere contract brings about the prohibition upon the son.
Al-Bara ibn Azib said: my maternal uncle al-Harith ibn Amr passed by me carrying the banner the Prophet (peace be upon him) had entrusted to him. I said to him: where are you going? He said: the Messenger of Allah (peace be upon him) sent me to a man who married his father's wife after him; he ordered me to strike his neckNarrated by Tirmidhi (1362) and Ibn Majah (2607); a sahih hadith
Ibn Qudama said: the same applies to his grandfather's wife through the father and through the mother, near or far: no known disagreement among the people of knowledge. Forbidden to him likewise is the woman his father or his son touched by slave ownership or likeness, as the one touched under a marriage contract. Ibn al-Mundhir said: ownership and suckling are here as descent: those who held this: Ata', Tawus, al-Hasan, Ibn Sirin, Makhul, Qatada, al-Thawri, al-Awza'i, Abu Ubayd, Abu Thawr and the people of opinion: we retain no opponent (al-Mughni 7/86). The Imam Ibn al-Mundhir said: they agreed: when a man marries a woman, she is forbidden to his father and his son, consummated or not, to his grandfathers, and to his descendants male and female forever, generation after generation: she is not lawful to the sons of his sons nor to the sons of his daughters; Allah mentioned no consummation in either of the two verses; and suckling is as descent (al-Ijma' 364; see al-Ikhtiyar 3/106, al-Jawhara al-Nayyira 4/271, al-Lubab 2/20, Mukhtasar al-Wiqaya 1/347, Bidayat al-Mujtahid 2/25, al-Taj wa-l-Iklil 2/528, Sharh Mukhtasar Khalil 3/207, Tahrir al-Mukhtasar 2/602, al-Bayan 9/243, al-Najm al-Wahhaj 7/157, Mughni al-Muhtaj 4/293-294, al-Mughni 7/86, 89, Sharh Muntaha al-Iradat 5/160, Kashf al-Qina 5/77, Manar al-Sabil 2/572).
4. The son's wife, the son's son's wife and the daughter's son's wife, however low they descend: forbidden to the father by the mere contract, whether the son consummated or not, by the words of Allah "the wives of your sons from your loins" (An-Nisa, 23): a precaution excluding the adopted son: the adopted son's wife does not enter it. The wife was named halila because she is the place where her husband lays his garment and is lawful to him. So forbidden to the man are the wives of his sons and of the sons of his daughters, by descent or suckling, near or far, by the mere contract, by consensus (Ibn al-Mundhir, al-Ijma' 364, with the references of the previous point).
The jurists differed: if a man commits adultery with a woman, is her daughter forbidden to him? If a man commits adultery with a girl, is her mother forbidden to him? And if he commits adultery with his wife's mother or with her daughter, is the other forbidden? Is there a difference before or after consummation?
The Hanafis and the Hanbalis of the madhhab, and the narration of Ibn al-Qasim from Malik in al-Mudawwana: whoever commits adultery with a woman, even in the rear, she is forbidden to his father and his son; the mother and daughter of this woman are forbidden to him, as if he had approached her by likeness or lawfully; if he touched his wife's mother or her daughter, his wife is forbidden to him; if he commits adultery with his father's wife or his son's wife, her marriage is annulled.
Sahnoun relates in al-Mudawwana al-Kubra (4/277-278) that Malik said: he separates from her and does not remain with her, which his companions compare with the Muwatta; and Ibn Abi Dhi'b from al-Harith ibn Abd al-Rahman: Sa'id ibn al-Musayyib, asked about the man who pursues a forbidden woman and wants to marry her daughter or her mother: "The forbidden does not render unlawful forbidden"; Urwa ibn al-Zubayr likewise; al-Zuhri said it; and men of knowledge relate from Mu'adh ibn Jabal and Rabi'a: "The forbidden has no sanctity in the lawful".
The proofs: Abd al-Razzaq reports from Ibn Jurayj the already cited hadith of Abu Bakr ibn Abd al-Rahman (weak, discontinuous and mursal); the raised report "Whoever looks at the private parts of a woman: her mother and her daughter are not lawful to him" (munkar: Ibn Abi al-Shayba 16235); and Abdallah ibn Mas'ud said: "Allah does not look at the man who looks at the private parts of a woman and her daughter" (weak: Ibn Abi al-Shayba 16234). Al-Hasan reports from Imran ibn Husayn concerning the man who commits adultery with his wife's mother: "His wife becomes forbidden to him".
The reasons: what attached the prohibition to lawful intercourse attaches to the forbidden intercourse, as with intercourse with a menstruating woman; marriage being a contract corrupted by intercourse through likeness, unlawful intercourse corrupts it as the ihram does. The words of Allah "Do not marry the women your fathers married" (An-Nisa, 22) entail the prohibition of marrying the woman the father approached by adultery or otherwise, the name embracing it literally: established for the father's intercourse, the like is established for the intercourse with the woman's mother or her daughter in the prohibition of the wife, no one having distinguished; and the words of Allah "your stepdaughters... born of your wives whom you have consummated with; if you have not consummated with them" (An-Nisa, 23): consummation is the name of intercourse, general to all its kinds, lawful or forbidden, marriage or adultery: so the daughter is forbidden by intercourse prior to the marriage of the mother; intercourse by slave ownership and by corrupt marriage forbidding the stepdaughter by the verse's ruling, the name of consummation is not restricted to marital intercourse.
Reasoning: intercourse is more decisive in bringing about the prohibition than the contract: no lawful intercourse is found that does not bring about the prohibition, whereas there is a valid contract that does not: the contract upon the mother does not forbid the daughter, intercourse does: the existence of intercourse is thus the efficient cause of the prohibition, lawful or forbidden. Moreover, there is no disagreement that intercourse by likeness and by ownership forbid without marriage: proof that intercourse brings about the prohibition in every manner, hence the intercourse of adultery. Allah aggravated adultery by imposing sometimes stoning, sometimes flogging, by threatening with the Fire and by refusing descent: all of it an aggravation of its ruling: so bringing about the prohibition, which is an aggravation, is more fitting for it: when Allah ruled void the pilgrimage of the one who had intercourse with his wife before standing at Arafat, the fornicator is more deserving of the pilgrimage's nullity; likewise, the prohibition of the mother and daughter through lawful intercourse being established, adultery is more deserving of it, as an aggravation of its ruling (Ahkam al-Qur'an by al-Jassas 3/51, 55, al-Mabsut 4/204-205, Bada'i al-Sana'i 2/260-261, al-Hidaya 1/192, al-'Inaya 4/350, Tabyin al-Haqa'iq 2/106, al-Bahr al-Ra'iq 3/105, al-Jawhara al-Nayyira 4/276-277, al-Lubab 2/22, Sharh Sahih al-Bukhari by Ibn Battal 7/210, al-Istidhkar 5/463-464, al-Ishraf 3/323-325 no. 1161, Bidayat al-Mujtahid 2/26, Sharh al-Zarqani 3/183-184, al-Bayan wa-l-Tahsil 18/489, al-Mughni 7/90, Kashf al-Qina 5/78, Manar al-Sabil 2/574, Fath al-Bari 9/156-157).
Among the Hanafis, the prohibition results not from fornication alone but from its preliminaries: touching a woman with desire forbids her mother and her daughter; likewise if she touches him with desire. No distinction is made between deliberate, forgotten, coerced or mistaken touching: even if he wakes his wife to have intercourse and his hand reaches her daughter, whom he pinches with desire taking her for her mother, his wife becomes forbidden to him forever; likewise if she wakes him and pinches his son from another wife. Desire is required at the moment of touching: touching without desire then desiring it: no prohibition; desire is defined by erection or its increase. Touching forbids only without ejaculation; if he ejaculates through touching, the correct view is that the prohibition applies, for ejaculation shows he did not reach intercourse.
If he touches a woman claiming "I felt no desire", or kisses her saying so: he is believed if the touching is outside the private parts and the kiss outside the mouth; otherwise he is not believed, his outward appearance belying him. Likewise looking inside a woman's private parts with desire forbids her mother and her daughter, no erection being required for looking; looking at the rear forbids nothing; if the woman looks at the man's member with desire, touches it or kisses it with desire, the prohibition of affinity attaches as if intercourse had occurred from him. Looking at the private parts with desire brings about the prohibition, whether there is a screen, as looking through glass or behind a curtain, or not; looking in a mirror counts for nothing, for it is an image: he sees her from behind his back; if she is at the edge of a basin and he sees her private parts in the water, the prohibition is not established; if she is in the water and he sees her private parts, the prohibition is established. All of this concerns the living: the dead bring about no prohibition of affinity through touching, intercourse or kissing (al-Mabsut 4/204-205, Bada'i al-Sana'i 2/260-261, al-Hidaya 1/192, al-'Inaya 4/350, Sharh Fath al-Qadir 3/222, Tabyin al-Haqa'iq 2/106, al-Bahr al-Ra'iq 3/105, 107, al-Jawhara al-Nayyira 4/276, 279, al-Lubab 2/22, Mukhtasar al-Wiqaya 1/348).
Among the Hanbalis, what forbids is intercourse while alive; the preliminaries of intercourse and intercourse after death establish nothing: neither touching, nor looking at her private parts or anything else, even with desire, by the words of Allah "if you have not consummated with them, no sin shall be upon you" (An-Nisa, 23), consummation meaning intercourse; likewise if she does the like: touching, looking at his private parts or otherwise: her daughter is not forbidden to him; likewise seclusion with desire with a man: his daughter is not forbidden to him, he having not consummated with her mother. Ibn Qudama said: touching short of the private parts without desire spreads no prohibition, with no known disagreement; with desire, with a foreign woman, it does not spread it either. Al-Jawzajani said: I asked Ahmad about the man who looked at his wife's mother with desire, kissed her or touched her: he said: I hold nothing of that forbidden except intercourse; likewise transmitted from Ahmad ibn al-Qasim and Ishaq ibn Mansur; if the touching was with a woman lawful to him, such as his wife or his slave, her daughter is not forbidden (al-Mughni 7/92).
Ibn Abbas said: "The stepdaughter is forbidden only by intercourse with her mother"; Tawus and Amr ibn Dinar say the same: Allah said "if you have not consummated with them, no sin shall be upon you" (An-Nisa, 23), and this is not a consummation: the explicit text is not abandoned for it; as for the prohibition of her mother and of the stepdaughter to the toucher's father and son, she is forbidden in marriage by the mere contract before the touching: the touching leaves no effect there (al-Mughni 7/92).
Sodomy, with them: it forbids with its preliminaries, such as kissing and the like; rubbing between women (musahaqa) does not forbid: so the sodomite has forbidden to him the mother and daughter of the one with whom he acts, and to the one acted upon the mother and daughter of the sodomite are forbidden: for it is intercourse in the private parts, the prohibition spreading thereby as with intercourse with a woman: this is the correct view of the madhhab; another narration: it spreads no prohibition, the view chosen by Ibn Qudama: these women being not mentioned in the text of prohibition, they fall under "and lawful to you is what is beyond that" (An-Nisa, 24); neither mentioned nor within the meaning of those mentioned (the wives of the sons, those the fathers married, the mothers of the wives and their daughters): intercourse in the vagina causes the partial link, obligates the dower, attaches descent, makes the woman a bed and establishes rulings sodomy does not establish: so it may not be assimilated to them without cause or likeness; like the man who nurses a child: no prohibition: even more so here; even a weak likeness does not permit restricting the generality of the Book nor setting aside the text (al-Mughni 7/91, Kashf al-Qina 5/79).
The Malikis in the well-known view and the Shafi'is: adultery does not establish the prohibition of affinity: whoever commits adultery with a woman may marry her daughter or her mother; affinity is a blessing from Allah by which He favored His servants: it is not established by adultery as descent is not: the fornicator may marry the mother or daughter of the woman he debased, and his son and father may also marry these women, by the words of Allah "It is He who created man from water, then made for him kinship by blood and marriage" (Al-Furqan, 54): He joined in the two waters affinity and descent: adultery lacking the ruling of descent lacks that of affinity.
The establishment of the prohibition of affinity occurs through blessing and honor: Allah bestowed upon His servants saying "then made for it kinship and marriage": the wife's mothers and daughters become as his mothers and daughters, to the point that he may stay alone with them and travel with them: a path of honor; pure adultery is a cause of punishment: it cannot be a cause of prohibition and honor: it establishes neither descent nor waiting period; likewise the prohibition of affinity; if it established the prohibition, the woman would become lawful to the one who divorced her three times.
Ibn Umar related that the Prophet (peace be upon him) said: "The forbidden does not render unlawful forbidden" (narrated by Ibn Majah 2015; a weak hadith). Allah said "the mothers of your wives" (An-Nisa, 23): He forbade only what was marriage and did not mention the prohibition through adultery; "marriage" under the Law applies only to intercourse with a contracted woman, not to mere intercourse: so every lawful marriage by which the man reaches his wife is like lawful marriage and forbids; everything that is pure adultery does not forbid, not being of the order of marriage.
Aisha said: the Messenger of Allah (peace be upon him) was asked about the man who pursues a forbidden woman: does he marry her mother? Or who pursues a forbidden mother: does he marry her daughter? The Messenger of Allah said: "The forbidden does not render unlawful forbidden: only what was through a lawful marriage forbids" (narrated by Tabarani in al-Awsat 4803 and Daruqutni 3678; a weak hadith): a text that must not be contradicted.
By analogy: adultery is intercourse whose prohibition is pure, with no prohibition of affinity, like intercourse with the young girl who is not desired; it is intercourse that does not obligate the waiting period, therefore no prohibition of affinity, like intercourse with the young girl and the dead; it is a prohibition of marriage attaching only to valid intercourse, therefore absent from explicit adultery by analogy with the waiting period; it is intercourse with no temporary prohibition, therefore no permanent prohibition, like sodomy; if it established the prohibition of affinity, the state of the lawful and the forbidden would part there as in the contract; the continuity established in marital intercourse is absent from intercourse of adultery, by analogy with the continuity of descent; adultery lacking what attaches to marital intercourse (preservation, lawfulness, waiting period, descent), it lacks the prohibition of affinity; finally, if illicit touching, kissing and contact with desire established the prohibition, the woman who hates her husband would part from him by kissing his son: separation would be in her hand whereas Allah placed it in the husband's hand to the exclusion of hers (al-Muwatta 2/533, Sharh Sahih al-Bukhari by Ibn Battal 7/210, al-Istidhkar 5/463-464, al-Ishraf 3/323-325 no. 1161, al-Bayan wa-l-Tahsil 18/489, Tafsir al-Qurtubi 5/114-115, al-Taj wa-l-Iklil 2/529, Sharh Mukhtasar Khalil 3/208-209, al-Sharh al-Kabir 3/63, Tahrir al-Mukhtasar 2/604, al-Hawi al-Kabir 9/215-216, al-Muhadhdhab 2/43, al-Bayan 9/254-255, Rawdat al-Talibin 4/748, al-Najm al-Wahhaj 7/161, Mughni al-Muhtaj 4/295, al-Dibaj 3/244).
The cause of the disagreement between the jurists is twofold. The first: the absence of a sahih hadith with each of the two parties. The second: the sharing of the name "marriage" in its linguistic and legal significance: whoever considered the linguistic significance in "Do not marry the women your fathers married" (An-Nisa, 22) said adultery forbids; whoever considered the legal significance said it does not forbid; whoever based the ruling on the prohibition between the mother and the daughter and between the father and the son said it forbids too; whoever likened it to descent said it does not forbid, most scholars agreeing that descent does not attach to adultery (Bidayat al-Mujtahid 2/26).
The jurists of the four schools agree: the spouses who have invoked mutual imprecation (the mutala'anin), so long as neither retracts after the imprecation, become forbidden to each other permanently. They then differed: if after the imprecation the husband retracts or the wife admits it, does the prohibition become permanent, or is the separation an irrevocable divorce, the prohibition not becoming permanent and the man returning to being a suitor among the suitors?
The majority of the jurists (Malikis, Shafi'is, Hanbalis and Abu Yusuf among the Hanafis): once the imprecation has occurred between the spouses, they never come together: she has become forbidden to him permanently, whether he retracts afterwards or not. The report of Sa'id ibn Jubayr from Ibn Umar:
The Prophet (peace be upon him) said to the couple engaged in li'an: "Your reckoning is with Allah: one of you two is a liar; you have no way to her". He said: "O Messenger of Allah, what is mine then?" He said: "You have no wealth: if you have been truthful about her, it is the fruit of what you made lawful of her; if you have lied about her, you are all the more far from her"Narrated by Bukhari (5035) and Muslim (1493)
Sa'id ibn Jubayr said: asked about the couple engaged in li'an over Mus'ab's wife: should they be separated? "I did not know what to say; I went to Ibn Umar's house in Mecca and asked the servant to announce me. Hearing my voice he said: the son of Jubayr? I said: yes. He said: enter: by Allah, nothing but your need brings you at this hour. I entered and saw him lying on a coarse silk mat, his head on a pillow stuffed with palm leaves. I said: O Abu Abd al-Rahman, the couple engaged in li'an: should they be separated? He said: glory be to Allah! Yes" (narrated by Muslim 1493).
Ibn Shihab relates that Sahl ibn Sa'd al-Sa'idi informed him that Uwaymir al-Ajlan came to Asim ibn Adi: "O Asim, consider: a man finds a man with his wife: is he killed or what does he do? Ask for me the Messenger of Allah (peace be upon him) about that." Asim asked the Messenger of Allah, who disliked the question and censured it, until what Asim heard from the Messenger of Allah became burdensome to him. Back at his home, Uwaymir came: "O Asim, what did the Messenger of Allah say to you?" Asim said: "You have not brought me good: the Messenger of Allah disliked the question I asked him". Uwaymir said: "By Allah, I will not stop until I ask him about it". He came to the Messenger of Allah in the midst of the people: "O Messenger of Allah, consider: a man finds a man with his wife: is he killed or what does he do?" The Messenger of Allah said: "Quran has been revealed concerning you and your companion: go and bring her".
Sahl said: they invoked imprecation upon each other in the presence of the Messenger of Allah; when they had finished, Uwaymir said: "I slandered her, O Messenger of Allah, if I keep her": so he divorced her three times before the Prophet (peace be upon him) ordered it. Ibn Shihab said: such was the sunna of the couple engaged in li'anNarrated by Abu Dawud (2245); a sahih hadith
In a version, Sahl ibn Sa'd said in this report: he divorced her three times before the Messenger of Allah (peace be upon him), who executed it; and what was done before the Prophet (peace be upon him) became sunna. Sahl said: I witnessed this before the Messenger of Allah, and the sunna was afterwards established among the couple engaged in li'an: they are separated and never come togetherNarrated by Abu Dawud (2250); a sahih hadith
The majority's arguments: the Prophet (peace be upon him) said "you have no way to her" without saying "unless you retract yourself": an absolute prohibition, like that of the mothers and those mentioned with them: a prohibition of unqualified permanence; the one who divorces three times a wife not yet separated could marry her after another man has contracted her, whereas li'an forbids absolutely. The Messenger of Allah (peace be upon him) formulated the prohibition in the imprecation without restricting it to a time: it is therefore permanent. If he retracts, the child is attached to him: a right he denied then acknowledged, so it is owed from him; marriage is not so: it is a right established upon him that cannot be annulled. And his words: "The couple engaged in li'an never come together": the cause of this separation is shared by both spouses, whereas divorce belongs to the husband alone: what the two spouses share is not a divorce; whenever such a cause brings about the prohibition it makes it permanent, like the prohibition through suckling.
The establishment of the prohibition through imprecation resembles the suspension of testimony after the punishment for slandering a stranger, which becomes permanent; so it is here. It is a prohibition that is not lifted before the punishment and the retraction, like the prohibition of suckling (al-Mabsut 7/43-44, Sharh Mushkil al-Athar 3/202-203, Tuhfat al-Fuqaha 2/222, Bada'i al-Sana'i 3/245-246, Mukhtasar Ikhtilaf al-Ulama 2/506, Ahkam al-Qur'an by al-Jassas 5/155, 157, al-Hidaya 2/24-25, Sharh Fath al-Qadir 4/288, Tabyin al-Haqa'iq 3/19, al-'Inaya 6/67, 69, al-Bahr al-Ra'iq 4/131, al-Istidhkar 6/102, Tafsir al-Qurtubi 12/194, al-Muhadhdhab 2/127, al-Hawi al-Kabir 11/75-76, al-Bayan 10/467-468, al-Najm al-Wahhaj 8/113-114, al-Mughni 5/54-55, al-Kafi 3/260, Sharh al-Zarkashi 2/520, al-Mubdi' 7/62, Sharh Muntaha al-Iradat 5/161, Kashf al-Qina 5/79-80).
Imam Abu Hanifa and Muhammad ibn al-Hasan: the prohibition does not become permanent through imprecation; the separation in li'an is a parting by irrevocable divorce: the right of marriage lapses, but the prohibition of striving (ijtihad) and of marriage remains while they are in the state of imprecation; if the husband retracts and receives the punishment, or the wife admits it by confirming him and finds herself in a state where imprecation is no longer required between her and her husband when he slanders her, he may marry her. The Messenger of Allah (peace be upon him), having carried out the imprecation between Uwaymir al-Ajlan and his wife, the latter said: "I slandered her, O Messenger of Allah; if I keep her, she is divorced three times", or in a version "if I do not part from her, she is divorced three times": the husband's divorce after the imprecation became the sunna of the couple engaged in li'an, Uwaymir having divorced his wife three times after the imprecation before the Messenger of Allah (peace be upon him), who executed it upon him: so everyone who invokes imprecation must divorce; if he refuses, the judge acts in his place for the separation: it is a divorce, as with the impotent man.
The cause of this separation is the husband's slander: it brings about the imprecation, the imprecation the judicial separation, and that the parting: the parting is thus related to the preceding slander through intermediaries; every parting coming from the husband or caused by his act is a divorce, as in impotence, khul' and ila'. Likewise every parting connected with the ruler's judgment does not bring about a permanent prohibition: parting for impotence, the option of the two minors, parting of ila' according to us, and the other partings connected with the ruler's judgment.
As for the hadith, its literal sense cannot be applied: the literal is the one occupied with the act; having finished the imprecation, they do not remain literally engaged in imprecation: the meaning passes to the ruling, that is, to the continuance of the ruling of imprecation between them. If the husband retracts and receives the punishment of slander, the ruling of imprecation lapses: he remains neither literally nor in ruling engaged in li'an: their coming together becomes lawful. Analogy with the words of Allah about the people of the cave:
"If they prevail over you, they will stone you or return you to their religion, and you will never prosper then"
Surah Al-Kahf, 20
that is, as long as they remain in their religion: see that they prosper as soon as they do not act: so it is here. The text established is the imprecation between the two spouses: to establish the permanent prohibition upon it would exceed the text, especially in a path that is that of punishments; moreover it is a parting specific to the court of judgment, whose cause is realized only in a valid marriage: it is thus a parting by divorce, like the parting for impotence and weakness: the imprecation makes "holding in kindness" fail, making release in kindness obligatory; if the judge refuses to proceed, he acts in his place: the judge's act counts as the husband's; it being a divorce, the prohibition does not become permanent.
As for the hadith: the literal sense of the couple engaged in li'an is their state of occupation; figuratively they are called a couple engaged in li'an only while the ruling of imprecation remains between them: their coming together becomes lawful only when the ruling lapses: if he retracts, the punishment is applied to him for his admission against himself, and applying the punishment entails the nullity of the imprecation: no one remains eligible for li'an after the punishment; likewise the woman who admits adultery leaves eligibility for li'an, likewise the one who slanders a man and receives the punishment: the lawfulness of their union is then known after the lapse of the ruling of imprecation: this is not establishing the coming together of the couple engaged in li'an (al-Mabsut 7/43-44 and the cited references).
By the consensus of all: if he retracts, he receives the punishment and the child is attached to him: the marriage becomes lawful again as the child returns to him: no difference is made between these things (al-Istidhkar 6/102). The Imam Ibn Rushd said: may they take each other back? Malik, al-Shafi'i, al-Thawri, Dawud, Ahmad and the majority of the jurists of the regions say: they never come together, even if he retracts. Abu Hanifa and a group say: if he retracts and receives the punishment, he is a suitor among the suitors (Bidayat al-Mujtahid 2/90). It is also said: his wife is returned to him. The first party's proof is the words of the Messenger of Allah (peace be upon him) "you have no way to her", without exception: an absolute prohibition; the second view's proof: if he retracts, the ruling of imprecation lapses; just as the child returns to him, the wife is returned: the cause bringing about the prohibition being the ignorance of the truthfulness of one with the certainty of the lie of one: once disclosed, the prohibition is lifted (Bidayat al-Mujtahid 2/90).
The people of knowledge agree: the wives of the Prophet (peace be upon him) are forbidden to the community after him: no one may marry them, and whoever makes one of them lawful to himself has disbelieved, by the words of Allah:
"It does not befit you to harm the Messenger of Allah, nor to marry his wives after him ever: that would be, with Allah, an enormous matter"
Surah Al-Ahzab, 53
Allah distinguished His Messenger there with a particular honor: he was given specific rulings and honored with marks and grandeurs no one shared with him, distinguishing his nobility and pointing to his rank. He distinguished his wives with virtue by making them mothers of the believers: "his wives are their mothers" (Al-Ahzab, 6), that is, those he has been departed from: they are nine; the rulings of mothers apply to them: their marriage is forbidden forever, they not becoming lawful to anyone of creation after him, as the marriage of mothers; their ruling of marriage is not annulled by his death: they are his wives in the Hereafter, the woman in Paradise being the wife of the last of her husbands: their prohibition after his death is as their prohibition during his life.
The Imam al-Shafi'i said: among what Allah distinguished His Prophet (peace be upon him) with: "The Prophet has greater claim on the believers than they have on themselves, and his wives are their mothers" (Al-Ahzab, 6); and "It does not befit you to harm the Messenger of Allah, nor to marry his wives after him ever" (Al-Ahzab, 53): He forbade marriage with his wives after him to the worlds: the wives of no one else are so; and "O wives of the Prophet, you are not like any other women, if you are mindful of Allah" (Al-Ahzab, 32): He distinguished them thereby from the women of the worlds (al-Umm 5/141; see al-Hawi al-Kabir 9/19, Ahkam al-Qur'an by Ibn al-Arabi 3/617, Tafsir al-Qurtubi 14/228, Sharh Muntaha al-Iradat 5/161).
A preliminary question: the one who divorced one of his wives with an irrevocable divorce: may he marry while she is in her waiting period, or must he wait for its end? Malikis and Shafi'is: it is permitted him to marry another even though the divorced one is still in her waiting period (al-Muwatta 2/548, al-Istidhkar 5/540-541, Tafsir al-Qurtubi 5/119, Sharh al-Zarqani 3/212, Sharh Mukhtasar Khalil 3/212, Mughni al-Muhtaj 4/301). Hanafis and Hanbalis: he may not marry before the waiting period of the divorced wife ends, nor marry her sister (Bada'i al-Sana'i 3/226, Masa'il al-Imam Ahmad wa-Ibn Rahawayh 1/380, al-Furu' 5/155, al-Mubdi' 7/68, al-Insaf 8/131, Matalib Uli al-Nuha 5/108). The issue was treated in detail under the fourth pillar of marriage.
Ibn al-Qayyim relates that limiting the number of wives to four and permitting slave ownership without limit belong to the completion of His favor and the perfection of His law: marriage is intended for continuance; some are dominated by the power of desire: He permitted them up to the fourth; He showed mercy to the wife by making the parting three times then the return; and He restricted it to a number in which justice is nearest; as for slave women, they are like other property (I'lam al-Muwaqqi'in 2/105).
In I'lam al-Muwaqqi'in, in the chapter on the wisdom of permitting polygamy to the man and not to the woman: as for his words "He permitted the man to marry four wives and did not permit the woman more than one husband": it belongs to the perfection of the Lord's wisdom toward them, His benevolence, His mercy toward His creation and His care for their interests; far be it from Him to contradict that, and His law is sanctified from bringing other than this. If the woman could have two husbands or more, the world would be corrupted, lineages lost, husbands killing one another, the affliction immense, the trial severe and the market of war standing upright; how would the state of a woman having quarrelsome partners be upright, and how that of the partners with her? The law's coming with the contrary is among the greatest proofs of the wisdom of the Lawgiver, His mercy and His care for His creation.
If it is said: how was the man's side regarded, he being permitted to fulfill his need and move from one wife to another according to his desire and need, the woman's call being his call and her desire his desire? The answer: the woman is usually hidden behind veils and secluded in homes; her temperament is colder than the man's and her outward and inward movement less; the man was given of strength and heat, which are the dominion of desire, more than the woman, and was tried with what she was not tried with: so there was opened to him in the number of wives what was not opened to her. This is that by which Allah distinguished men and preferred them over women, as He preferred them with prophethood, caliphate, kingship, emirate, governance and jihad; He made men the maintainers of women, seeking their interests, striving for the means of their livelihood, braving dangers, crossing deserts, exposing themselves to every affliction and trial for the sake of the wives; the Lord is thankful and forbearing: He rewarded them by opening to them what He did not open to the wives.
When you compare the toil, misery, labor and hardship of men for the interests of women with what the women were tried with of jealousy, you find the men's share in bearing that toil and hardship greater than the women's share in bearing jealousy: it belongs to the perfection of Allah's justice, wisdom and mercy: to Him be the praise He deserves.
As for the words of the one who says: "the woman's desire exceeds the man's": it is not as he says: the source of desire is heat; where is the female's heat compared with the male's? But the woman, through her idleness and her freedom from what occupies her away from her desire and the debt of her need, is overwhelmed by the dominion of desire which takes hold of her, finding nothing to oppose it: she meets an empty heart and an idle soul and is fully mastered by it: the thinker then imagines her desire to be multiple of the man's, and it is not so.
What proves this: the man who has intercourse with his wife can have another immediately: the Prophet (peace be upon him) used to go round his wives in a single night; Sulayman went round ninety wives in one night; he is known to have with each one a desire and a heat prompting intercourse; but when the man has fulfilled his need, the woman's desire rests and her soul is broken: she does not seek its fulfillment from another at that moment: the wisdom of destiny, the law, creation and command coincide: praise be to Allah (I'lam al-Muwaqqi'in 2/104-105).
Every two women between whom there is a forbidden kinship such that, if one of them were a man, marriage with the other would be forbidden to him by descent (and not by affinity): combining them is not permitted: neither the two sisters; nor the woman and her paternal aunt however high; nor her maternal aunt however high; nor the daughter and her mother however high (al-Qawa'id al-Fiqhiyya of Ibn Rajab 1/372-373).
The combining of the two sisters is forbidden for if we suppose one of them a man, it would not be permitted him to marry his sister. Likewise the combining of the daughter and her paternal aunt: if we suppose one of them a man, it would not be permitted him to marry the other: the paternal aunt supposed male becomes a paternal uncle, for whom marriage with his brother's daughter is not fitting; the daughter supposed male, the other becomes his paternal aunt, not lawful to him.