Islamic Fiqh > Marriage and family > Forbidden marriages: shighar, muta and muhallil > The third form: divorce stipulated before the contract, contracted without a condition but with the intent
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
These sheets from the fiqh encyclopedia (al-Mawsua al-fiqhiyya), chapter on forbidden marriages, complete the study of the muhallil marriage, the one who makes lawful to her first husband the woman divorced three times: the form where the divorce is stipulated before the contract, the one where the intent at the contract contradicts the condition, the one where the intent is concealed from the wife or the first husband, and the one where the spouses keep their agreement secret. The legal effects of this marriage are then examined, the qualities required of the muhallil husband (maturity, sanity, capability), then three other debated marriages: that of the pilgrim in a state of ihram for hajj or umrah, that of the sick person, and the secret marriage. The exact positions of the Hanafi, Maliki, Shafi'i and Hanbali schools are reported with their classical sources, their hadiths and their takhrij.
The first of the two views: this marriage is invalid, because it is not permanent; it then resembles the statement: 'On condition that, if I set you free, there will be no marriage between us.' Does he then make her lawful or not? The answer depends on the two previous views: according to the recent view, he does not make her lawful; according to the old view, he does make her lawful; and the cause of this difference has two aspects.
The second view: it is a valid marriage, because it is a marriage accompanied by an invalid condition: the condition is void and the contract stands. According to this view, the husband, after consummating the marriage, has the choice between divorcing her or staying with her, and the condition has no power to compel him to divorce her. If he divorces her of his own will, she becomes lawful to the first husband according to one unanimous view, because of the validity of his marriage (al-Hawi al-Kabir 10/331-332; an-Najm al-Wahhaj 7/177-179; Mughni al-Muhtaj 4/303; Nihayat al-Muhtaj 6/326-327; ad-Dibaj 3/251-252).
The third form is therefore that the divorce be stipulated upon him before the contract, and then that he marry the woman without any condition at the time of the contract, while forming that intent and belief. The jurists discussed the case of two spouses who agreed before the contract that the second would divorce the woman after making her lawful for the first, and then contracted without mentioning this condition in the contract itself, while intending to make her lawful: is the marriage valid or not?
The Hanafis, the Shafi'is and the Hanbalis, in one view, held the marriage valid, because its contract is free of any condition that would corrupt it. Al-Shafi'i (may Allah have mercy on him) reported in support the following account:
A woman was divorced three times by her husband, a poor Bedouin who used to sit at the door of the mosque. A woman came to him and said: 'Would you like a woman whom you would marry, spend the night with, and leave in the morning?' He said: 'Yes', and it was done. His wife said to him: 'In the morning they will tell you: leave her, do not do it, for I will remain with you, as you see; and go to Omar.' In the morning he went to him and she went as well, and said: 'Speak to him, for it is you who brought him.' They spoke to him, he refused, and he went to Omar, who said: 'Hold on to your wife; if they see anything suspicious in you, come to me.' He sent for the woman who had plotted that and banished her. Then (the Bedouin) would go to Omar in the morning and return in the evening in a garment, saying: 'Praise be to Allah who has clothed you, O man of the two patches, in a garment in which you go out in the morning and return in the evening.' Al-Shafi'i said: I heard this hadith with a connected chain, reaching Ibn Sirin who traced it back to Omar, in a similar sense.Reported by al-Shafi'i in al-Umm (5/80-81)
In this account, the condition preceded the contract, and Omar (may Allah be pleased with him) saw no harm in it. The Shafi'is explained: conditions that precede contracts are not binding, so a preceding condition is equivalent to its absence. We nevertheless disapprove of this practice, because the husband forms in it an intent which, if expressed, would corrupt the contract; yet mere intent corrupts nothing, for he may form an intent he does not carry out, and do what he did not intend. And because Omar banished the woman who had plotted this marriage, which indicates his disapproval (al-Hawi al-Kabir 9/331-334; Bahr al-Madhhab of al-Ruyani 9/324-325; al-Bayan 9/279; Bada'i' al-Sana'i' 3/187-188; al-Mabsut 30/228; Sharh Fath al-Qadir 4/181; Tabyin al-Haqa'iq 2/259; al-Ikhtiyar 3/185-186; al-Jawhara al-Nira 4/491; al-Bahr al-Ra'iq 4/63).
Ibn Hajar al-Haytami (may Allah have mercy on him) said: any condition contrary to the requirement of the contract is corrupting only if it figures within the contract itself, or after it before it becomes binding; not if it precedes it, even in the same sitting (Tuhfat al-Muhtaj 5/317). Al-Mawardi (may Allah have mercy on him) said likewise: if the condition precedes the contract, it has no effect upon its corruption, because conditions preceding contracts are not binding, and a preceding condition is equivalent to its absence (al-Hawi al-Kabir 10/313).
The Malikis and the Hanbalis held that if the two spouses agreed before the contract on the purpose of making the woman lawful, and contracted upon that intent, the case is identical to a condition stipulated in the contract, because of the curse of the Prophet (peace and blessings be upon him) upon the muhallil and the muhallal lahu (the one for whom it is made lawful). The marriage is invalid and permanently annulled, because the husband concluded it with the aim of the making lawful: it is no better than if the condition were stated in the very core of the contract (al-Ishraf 3/450-451, no. 1267; al-Ma'una 1/557-558; at-Tamhid 13/232-235; Tafsir al-Qurtubi 3/149-150; the Sharh of Zuruq upon the matn al-Risala 2/658; at-Tabsira of al-Khumi 5/2095-2096; al-Mughni 7/138-139; al-Insaf 8/161; Manar as-Sabil 2/591; al-Fatawa al-Kubra 3/106-107).
The fourth form: the divorce in favor of the first husband was stipulated before the contract, but the husband formed at the time of the contract an intent other than what was stipulated, and aimed at a marriage of inclination, that is, out of inclination for the woman. The majority of the jurists, the Hanafis, the Shafi'is and the Hanbalis, held: if it was stipulated upon him to make the woman lawful for the first, and the muhallil forms at the contract an intent contrary to what was stipulated, aiming at a mere marriage of inclination and intending to keep the woman if she pleases him, the contract is valid. It is indeed free of the intent of the making lawful and of its condition, and it is as if that had not been mentioned (Bada'i' al-Sana'i' 3/187-188; al-Mabsut 30/228; Sharh Fath al-Qadir 4/181; Tabyin al-Haqa'iq 2/259; al-Ikhtiyar 3/185-186; al-Jawhara al-Nira 4/491; al-Bahr al-Ra'iq 4/63; al-Hawi al-Kabir 9/332-333; Bahr al-Madhhab 9/324-325; al-Bayan 9/277-278; an-Najm al-Wahhaj 7/177-179; Mughni al-Muhtaj 4/303; Nihayat al-Muhtaj 6/326-327; ad-Dibaj 3/251-252; al-Mughni 7/138-139; al-Insaf 8/161; Manar as-Sabil 2/591).
The Malikis said: if the muhallil intends to make the woman lawful to her husband, while intending to keep her if she pleases him and to leave her otherwise, then he does not make her lawful, and the marriage is invalid, because of the absence of the absolute intent of keeping the woman, which the law requires for the making lawful. The two spouses are separated before and after consummation by an irrevocable divorce; she is owed the stipulated dower in case of consummation, according to the more correct view; according to another saying, the dower of the like (mahr al-mithl).
Al-'Adawi (may Allah have mercy on him) nevertheless said: his statement (he intends to make her lawful, and so on) means that the motive of the marriage is the purpose of the making lawful, or the purpose of the making lawful together with the intent of keeping her if she pleases. What counts is the intent at the time of the contract: if the intent of the making lawful occurs to him at the moment of consummation, it does no harm. It follows that if the divorce is stipulated upon him while his own purpose is to keep the woman, he makes her lawful inwardly, not outwardly; and he held this reading to be the most likely (Hashiyat al-'Adawi 2/96; adh-Dhakhira 4/321; Sharh Mukhtasar Khalil 3/216-217; Sharh al-Kabir with Hashiyat ad-Dasuqi 3/73-74).
The fifth form is that the husband alone forms the intent of making his wife lawful, without the wife or the first husband knowing it. The jurists differed: the second husband forms the intent of making her lawful to the first: is the marriage valid? The Malikis and the Hanbalis held, in the madhhab, that it is forbidden and invalid, because what counts is the intent of the muhallil, not that of the wife nor of the first husband: the contract is only voided by the intent of the husband, because it is he who holds the separation and the keeping (al-Mughni 7/138; al-Mubdi' 7/89; al-Insaf 8/161-162; al-Fatawa al-Kubra 3/108; Manar as-Sabil 2/590-591).
The Malikis specified: what counts in the making lawful of the woman divorced three times (mabtuta) is the intent of the muhallil, because the divorce is in his hand. As for the intent of the one who divorces and of the one divorced, if both aim at the making lawful, it is vain: neither the intent of the woman nor that of the first husband has any effect. The intent of the muhallil, to the exclusion of every other, determines the making lawful or its absence, because the divorce is in his hand (Sharh Mukhtasar Khalil 3/217; Sharh al-Kabir with Hashiyat ad-Dasuqi 3/74).
The Hanafis, the Shafi'is and the Hanbalis, in one view, held the marriage valid, because it is free of any corrupting condition; it resembles the case of a man who would form the intent of divorcing her for a purpose other than the making lawful, or the case where the intent would be that of the woman. The contract is indeed only voided by what is stipulated, not by what is intended, as shown by the example of buying a slave accompanied by the condition of reselling him: if the condition is stipulated, the purchase is not valid; if it is merely intended, it is not voided. It is moreover reported from Omar (may Allah be pleased with him) what indicates the permission of this marriage.
The Hanafis explicitly stated that the man is rewarded for such a marriage, saying: if the husband conceals this purpose without the condition of the making lawful, the practice is not disliked; it is lawful according to all of them, and he is rewarded for it if his purpose is the reconciliation between the two spouses, not the mere satisfaction of desire; the same applies if the intent comes from the woman and the second husband (Bada'i' al-Sana'i' 3/187; Sharh Fath al-Qadir 4/181; al-Bahr al-Ra'iq 4/63; Majma' al-Anhar 2/91; al-Mughni 7/138).
As-Sarakhsi (may Allah have mercy on him) reported that it was said of Salim ibn 'Abdallah that he was asked about a man who divorced his wife three times; when her waiting period ended, a man married her in order to make her lawful for the first husband, without either the latter or the woman having asked him to. He answered: 'This is permitted, and it is the view of Abu Hanifa (may Allah have mercy on him) which we follow; for he married her unconditionally, and marriage is a recommended sunna. His only purpose was to lift the prohibition between them, in order to turn them away from committing the unlawful and to bring them to their goal through a lawful path: it is an aid to piety and righteousness, which is recommended. It appears that each of them regrets the bad conduct that was his, especially if there is a child between them. If the second refused to marry her in order to make her lawful for the first, the regret, or the excess of inclination of each for his companion, might lead the woman to remarry without a muhallil. He therefore strives to accomplish their wish through a way recommended by the law: he is thus rewarded.' In a similar sense, the Messenger of Allah said:
Whoever pardons one who repents, Allah will efface his stumbles on the Day of Resurrection.Reported by as-Sarakhsi in al-Mabsut (30/228)
Ibn 'Abd al-Barr (may Allah have mercy on him) added: Salim and al-Qasim said: there is no harm in marrying her in order to make her lawful if the two spouses are unaware of it, and he is rewarded. Rabi'a and Yahya ibn Sa'id said: if he marries her in order to make her lawful, he is rewarded. Dawud ibn 'Ali said: it is not far-fetched that the one who marries a woman divorced three times in order to make her lawful to her husband be rewarded, if that does not appear in his stipulation at the time of the contract; for he intended to come to the aid of his Muslim brother and to spread joy in him, if he is repentant and lovesick: the one who acts thus is rewarded, Allah willing (at-Tamhid 13/234; al-Istidhkar 5/449).
This statement concludes the previous form: the first husband holds nothing of the contract nor of its lifting; he is a stranger, like the other strangers (Bada'i' al-Sana'i' 3/187-188; al-Mabsut 30/228; Sharh Fath al-Qadir 4/181; Tabyin al-Haqa'iq 2/259; al-Ikhtiyar 3/185-186; al-Jawhara al-Nira 4/491; al-Bahr al-Ra'iq 4/63; al-Hawi al-Kabir 9/332-333; Bahr al-Madhhab 9/324-325; al-Bayan 9/277-278; an-Najm al-Wahhaj 7/177-179; Mughni al-Muhtaj 4/303; Nihayat al-Muhtaj 6/326-327; ad-Dibaj 3/251-252; al-Mughni 7/138-139; al-Insaf 8/161; Manar as-Sabil 2/591).
The Malikis recall that what counts in the making lawful of the mabtuta is the intent of the muhallil, because the divorce is in his hand; as for the intent of the divorcing husband and of the divorced wife, if both aim at the making lawful, it is vain: it neither harms nor benefits. The intent of the muhallil alone determines the making lawful or its absence (Sharh Mukhtasar Khalil 3/217; Sharh al-Kabir with Hashiyat ad-Dasuqi 3/74).
The seventh form: that the two spouses conceal the intent of the making lawful without declaring it. The Hanafis, the Shafi'is and the Hanbalis, in one view, affirmed that if the second husband and the woman conceal the intent of the making lawful without declaring it, the marriage is permitted and the woman becomes lawful to the first. For mere intent has no effect in transactions: the marriage takes place validly through the fulfillment of the conditions of validity, and the woman becomes lawful as if the two spouses had intended the choice of timing or any other corrupting intent; the contract is indeed only voided by what is stipulated, not by what is intended.
The Shafi'is said: if the two spouses conceal it without stipulating it, the marriage is valid, but disliked; for any condition which, if pronounced in the contract, would corrupt it, its secret keeping is disliked even if it does not corrupt it (al-Hawi al-Kabir 10/331; an-Najm al-Wahhaj 7/177-179; Mughni al-Muhtaj 4/303; Nihayat al-Muhtaj 6/326-327; ad-Dibaj 3/252).
The Hanafis said: if the woman marries another husband and both of them have the intent of the making lawful without stipulating it in words, and the husband consummates the marriage with that intent, the woman becomes lawful to the first according to the agreement of all their views. Mere intent has no effect in transactions, and the man is rewarded for it, because he aimed at reconciliation (Bada'i' al-Sana'i' 3/187; Sharh Fath al-Qadir 4/181; Tabyin al-Haqa'iq 2/259; al-Bahr al-Ra'iq 4/63; Majma' al-Anhar 2/91; al-Mughni 7/138). The Malikis and the Hanbalis held the marriage forbidden and invalid because of the existence of the intent of the muhallil, for the contract is only voided by the intent of the husband, who holds the separation and the keeping (al-Mughni 7/138; al-Mubdi' 7/89; al-Insaf 8/161-162; al-Fatawa al-Kubra 3/108; Manar as-Sabil 2/590-591).
The muhallil marriage carries rulings according to the forms examined above. Whoever permits it, or permits one of its forms, attaches to it the rulings of a valid marriage: the lawfulness of enjoyment, the establishment of chastity (ihsan) and of lineage, the obligation of maintenance and of the dower, mutual inheritance, and all the effects of a valid marriage.
Whoever considers this marriage invalid, in all its forms or in some of them, attaches to it no ruling of a valid marriage: neither chastity nor permission for the first husband results from it, because the invalidity of the contract has stripped it of its status and applied to it the regime of the doubtful situation (shubha). This is what the Malikis, the Shafi'is (according to the recent view) and the Hanbalis explicitly state.
The imam Abu 'Umar Yusuf ibn 'Abd al-Barr (may Allah have mercy on him) said: the muhallil marriage is invalid and annulled: it is when a man marries a woman whom another has divorced three times, in order to make her lawful to her husband, agreeing that he would divorce her as soon as he had consummated with her. This is the muhallil whose cursing the hadith of the Prophet (peace and blessings be upon him) reports. Whoever marries a woman in order to make her lawful to her husband, she does not become lawful to him if he consummated with that marriage, whether they knew it or not, so long as they aimed at that purpose: the marriage is not ratified, it is annulled before and after consummation. Only a marriage of inclination, without the purpose of the making lawful, makes the woman lawful.
Malik and most of his companions required that the consummation be fully lawful, with nothing forbidden: that the woman be neither fasting, nor in a state of ihram, nor menstruating, nor in retreat (i'tikaf). If the man consummates with her fully, lawfully, then divorces her or dies, she becomes lawful to the first; otherwise she does not. The muhallil marriage depends on the husband who contracts, whether he stipulated it or formed the intent: as soon as either occurs, his marriage is invalid, not ratified, and his consummation does not make the woman lawful to her first husband. Whether the divorcing husband knows it or not is indifferent, for everything depends on the husband who contracts.
It has been said: if he knows that the man who married her did so for that purpose, it befits him to refrain from taking her back; likewise the woman, if that was stipulated, when the intent of the husband has settled on a marriage of inclination, for the making lawful does not depend on her at all. It has also been said: if any of the three aims at the making lawful, the marriage is invalid; that is a harshening. Salim, al-Qasim, Abu az-Zinad and Yahya ibn Sa'id said: it is permitted for a man to marry her in order to make her lawful if the two spouses are unaware of it, and he is rewarded if he holds that belief without stipulating it in his marriage contract, as indicated by the phrase 'if the two spouses are unaware'. The rule followed in this chapter remains what we have reported from Malik (al-Kafi, p. 238-239).
The Shafi'is said: if the husband consummates the invalid marriage, the recent view of the school is that he does not make the woman lawful, because the invalidity of the contract has stripped it of its status and applied to it the regime of the shubha. The second view, which is the view of the old, is that he makes her lawful to the first husband. The imam al-Mawardi (may Allah have mercy on him) said: the categories of the muhallil marriage being established, if we declare it valid, the rulings of a valid marriage attach to it: the establishment of chastity and the obligation of maintenance, and the husband keeps the choice between staying or divorcing; if he divorces after complete consummation, he has made the woman lawful to the first. As for the dower: if the contract includes no condition affecting it, the stipulated dower is owed; if it includes one, the dower of the like is owed, to the exclusion of the stipulated amount.
If we declare the contract invalid and void, no legal punishment (hadd) applies because of the shubha, but a disciplinary sanction is applied for venturing into a forbidden act; neither chastity nor maintenance is established through the consummation, and it is the dower of the like that becomes due through it. Does the woman become lawful to the first husband if she tasted the semen ('usila) of her second husband and he hers? Two views: the first, which is the old view, is that he makes her lawful; the companions of the school differ on the justification: some say that the tasting of semen under the doubt of a marriage applies to the marriage the regime of a valid marriage; others say that being designated by the name of muhallil entails the application of the regime of the making lawful. According to the first view, consummation makes the woman lawful in every invalid marriage: the shighar marriage, the mut'a marriage, marriage without guardian or witnesses; according to the second, she only becomes lawful through the muhallil marriage, not through the other invalid marriages.
The second view, which is the correct recent view, is that he does not make her lawful to the first husband, neither in the muhallil marriage nor in the other invalid marriages, so long as it is not a valid marriage. For Allah the Most High said:
"...until she marries another husband"
Surah Al-Baqarah, 230
This second man is not a husband in the sense of the verse; and every consummation that does not carry chastity carries neither the permission for the first husband, like the consummation with a slave woman (al-Hawi al-Kabir 9/334). Al-Mawardi said further: the companions of the school differ on the cause of the making lawful. Abu 'Ali ibn Abi Hurayra and the majority of the Baghdadis held that the cause is that the woman was consummated in the name of marriage: according to this view, consummation produces in every invalid marriage the same effect as in the muhallil marriage. The Basrans held that the cause is that the Prophet (peace and blessings be upon him) employed the name of the making lawful about this marriage in his prohibition: according to this view, consummation in the other invalid marriages does not make lawful, unlike this one, because of its being specific to this name (al-Hawi al-Kabir 10/331).
Al-Mawardi said further: as for the consummation in the invalid marriage, what is explicit in the recent view, and the most famous view of the school in the old view, is that it does not make the woman lawful, like the consummation in the mut'a marriage and the shighar marriage, or marriage without a guardian: for it does not rest upon a valid contract; even if the legal punishment falls away, the consummation becomes doubtful as soon as there is no contract. Another view nevertheless emerged in the old, according to which the muhallil marriage makes the woman lawful, because rulings of a valid marriage may attach to it: the obligation of the dower and of the waiting period, and lineage; this justification is corrupted by the doubtful consummation (al-Hawi al-Kabir 10/330; an-Najm al-Wahhaj 7/177-179; Mughni al-Muhtaj 4/303; Nihayat al-Muhtaj 6/326-327; ad-Dibaj 3/251-252).
The imam Ibn Qudama (may Allah have mercy on him) said: the muhallil marriage is invalid, and the rulings of invalid contracts apply to it; neither chastity nor permission for the first husband results from it, as in the other invalid contracts. If it is objected: the Prophet (peace and blessings be upon him) named the first muhallil and the other muhallal lahu, and if the making lawful did not occur, neither would bear that name; the answer is that he only called him muhallil because he aimed at the making lawful where it cannot occur, as the Prophet said:
He is not a believer in the Quran who declares its prohibitions lawful.Reported by Ibn Qudama in al-Mughni (7/139-140)
And Allah the Most High said:
"They render it lawful one year and forbid it another year"
Surah at-Tawbah, 37
If one were truly a muhallil and the other truly a muhallal lahu, they would not both be cursed (al-Mughni 7/139-140).
The jurists discussed the husband through whom the making lawful occurs: must he be mature (baligh), or is maturity not required and the marriage of an adolescent (murahiq) valid, making the woman lawful to the first? The majority of the jurists, the Hanafis, the Shafi'is and the Hanbalis, held that maturity is not required: if an adolescent consummates the marriage and then divorces her, she becomes lawful to the first, because of the consummation in a valid marriage; ejaculation is not required.
The Hanafis said: the adolescent capable of intercourse is assimilated to the mature man for making lawful the woman divorced three times to her first husband, because of the consummation in a valid marriage, which is the condition explicit in the text. Ejaculation is not required, but only the penetration of the glans: ejaculation is a further perfection, and this restriction is without evidence; the adolescent is therefore like the castrated man and like the male that does not ejaculate. The murahiq is the one who approaches maturity; according to a saying, the one whose organ stirs and who desires intercourse: Shams al-A'imma estimated it at ten years. As for the old man who is capable neither of intercourse nor of introducing his organ, even with the help of his hand, he does not make the woman lawful, unless he regains vigor and functions.
Penetration was required only because the Prophet (peace and blessings be upon him) required the pleasure of both sides: when the man consummates with his wife, the major ablution becomes obligatory upon her and he makes the woman lawful to the first husband. This major ablution is obligatory upon her only through the meeting of the two circumcised parts, the cause of the flow of her fluid. No major ablution falls upon the boy, for lack of legal address: he is only commanded it by way of habituation, so that it becomes second nature before his maturity and does not weigh upon him when it becomes obligatory. The madman is here like the man of sound mind; and the eunuch capable of intercourse makes the woman lawful to the first (al-Hidaya 2/10; Sharh Fath al-Qadir 4/181; Tabyin al-Haqa'iq 2/258-259; al-'Inaya 5/432; Majma' al-Anhar 2/90; al-Fatawa al-Hindiyya 1/473; Hashiyat Ibn Abidin 3/410).
The Shafi'is said: it is required of the second husband, the muhallil, that he be among those whose intercourse is possible, like the adolescent; not a child from whom it cannot proceed, according to the correct view of the school. If the second husband is not mature although he contracted upon her a valid marriage, two cases: either he is an adolescent, with the organ erect and consummating like the others: his consummation makes her lawful to the first, like that of the mature man; or he is a child, incapable of consummating and with the organ not erect: the consummation is impossible from him, and the insertion of his organ is mere play, to which no making lawful attaches. He differs in this from the mature man who inserts without erection, for they differ as to whether the name of consummation applies, and therefore differ as to its ruling. According to one view, the making lawful occurs without erection, in case of paralysis or the like, through the realization of the form of intercourse and of its rulings.
As for the eunuch, whose two veins are severed but whose organ is intact: his consummation makes the woman lawful like that of the potent male, and even more strongly, because of the absence of ejaculation and his lesser failing. As for the majbub, the man whose organ has been cut off: if nothing remains of it that allows insertion, the consummation is impossible from him and he does not make the woman lawful; if enough remains for insertion, then if what remains is less than the size of the glans, he does not make her lawful, for the man with an intact organ, were he not to insert up to the glans, would not make her lawful; if what remains reaches the size of the glans or more, he makes her lawful. Should one consider the disappearance of a length equal to the glans, or the disappearance of the whole remainder? Two views: according to the first, the disappearance of the length of the glans is considered, and if a length equal to the glans disappears from the remainder, he makes her lawful; according to the second, she only becomes lawful through the disappearance of the whole remainder, for the loss of the glans voided its status, which transferred to the remainder (al-Hawi al-Kabir 10/329; an-Najm al-Wahhaj 7/175-176; Mughni al-Muhtaj 4/302-303; ad-Dibaj 3/251).
The Hanbalis said: the making lawful for the first husband occurs through consummation in the vulva, for the Prophet (peace and blessings be upon him) attached the making lawful to the one who tastes the semen, which occurs only through consummation in the vulva. The minimum required is the disappearance of the glans with penetration into the vulva, even without ejaculation, for the rulings of consummation attach to it. If he inserts without effective penetration, he does not make the woman lawful; ejaculation is not a condition of it, for the Prophet made the taster of semen the limit of the prohibition, which occurs without ejaculation. It appears that this concerns the previously married woman (thayyib); as for the virgin, the minimum is that he deflower her with his organ. If he is majbub and what remains of his organ is the length of the glans and he inserts it, he makes her lawful, for that counts with him as the glans counts with the other.
The making lawful also occurs through the marriage of an adolescent: if an adolescent husband consummates with her, he makes her lawful, according to the explicit text, for it is the consummation of a husband in a valid marriage, resembling that of the mature man, unlike the young child, incapable of consummating and from whom the semen is not tasted. In al-Mustaw'ab: it is required that he be ten full years of age. Al-Qadi said: twelve years are required of him, and Muhanna reported it, for below that intercourse is not possible for him; but this has no meaning, for the debate is about intercourse: as soon as it becomes possible for him, the intended purpose is achieved. There is no meaning in considering an age that the law did not consider and in estimating it by mere opinion and arbitrariness.
The imam Ibn Qudama (may Allah have mercy on him) said: if an adolescent marries her and consummates with her, he makes her lawful according to their view; except Malik and Abu 'Ubayd, who said that he does not make her lawful, and this is reported from al-Hasan, for it is the consummation of one who is not mature, resembling that of the child. Our evidence: the explicit text, and the fact that it is the consummation of a husband in a valid marriage, resembling the mature man and differing from the child, from whom the consummation is impossible and from whom the semen is not tasted.
If the woman is a protected subject (dhimmi) and her dhimmi husband consummates with her, she becomes lawful to the Muslim who divorced her. Ahmad stated it explicitly and said that he is a husband, and that through him the mutual cursing (mula'ana) and the oath apply; al-Hasan, az-Zuhri, ath-Thawri, ash-Shafi'i, Abu 'Ubayd, the adherents of opinion (ashab ar-ra'y) and Ibn al-Mundhir said so. Rabi'a and Malik said: he does not make her lawful. Our evidence: the apparent meaning of the verse, and the fact that it is the consummation of a husband in a valid and complete marriage, resembling that of the Muslim.
If both spouses are mad, or one of them, and the husband consummates, he makes her lawful. Abu 'Abdallah ibn Hamid said: he does not make her lawful, for he does not taste the semen. Our evidence: the apparent meaning of the verse, and the fact that it is a lawful consummation in a valid marriage, resembling that of the man of sound mind. His statement 'he does not taste the semen' is not sound, for madness is only the veiling of reason, and reason is not a condition of desire nor of pleasure, as the beasts show. But if the madman has lost sensation, like a man struck by lightning or one unconscious, the making lawful does not occur through his consummation, nor through that of a madwoman in this state; perhaps Ibn Hamid meant precisely the madman in that state, and then there is no difference here. If a man unconscious or asleep, who does not feel his act, consummates, it befits that she not become lawful thereby, according to what we have said; Ibn al-Mundhir reported it; yet it is possible that the making lawful occurs in all of these cases, by virtue of the generality of the text: Allah knows best (al-Mughni 7/399-400; see al-Mubdi' 7/404-405).
The Malikis held that the woman divorced three times does not become lawful to the first husband through the consummation of an adolescent, for he has not attained maturity, like the child; and because it is an insertion on the part of one upon whom neither the legal punishment nor the maintenance of his wife become obligatory through his consummation: no making lawful therefore occurs, as in the consummation of the child (al-Ishraf 3/450, no. 1266).