Islamic Fiqh > Marriage and family > Forbidden marriages: shighar, muta and muhallil > The muhallil, marriage in ihram, the sick man and secret marriage
Contents
Updated on 24 September 2026 at 7:46 PM
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).
Sixth: the marriage of the pilgrim in a state of ihram for hajj or umrah. The jurists differed: is this marriage valid? The majority of the jurists, the Malikis, the Shafi'is and the Hanbalis, require of each of the two spouses and of the guardian the absence of a state of ihram, according to what Muslim and others reported: Umar ibn 'Ubaydallah wanted to marry Talha ibn Umar to the daughter of Shayba ibn Jubayr; he sent for Aban ibn Uthman to attend the marriage, while the latter commanded the pilgrimage. Aban said: I heard Uthman ibn 'Affan (may Allah be pleased with him) say that the Messenger of Allah (peace and blessings be upon him) said:
The one in a state of ihram neither marries, nor is given in marriage, nor makes a proposal of marriage.Reported by Muslim (1409)
Malik reported in al-Muwatta (773), from Dawud ibn al-Husayn, that Abu Ghatfan ibn Tarif al-Mirri told him that his father Tarif had married a woman while in ihram, and that Umar ibn al-Khattab had annulled his marriage. At number 774 of the Muwatta, Malik reports from Nafi' that 'Abdallah ibn Umar used to say: 'The one in ihram neither marries nor makes a proposal, neither for himself nor for another.' At number 775, Malik reports that Sa'id ibn al-Musayyib, Salim ibn 'Abdallah and Sulayman ibn Yasar, asked about the marriage of the pilgrim in ihram, answered: the one in ihram neither marries nor marries off. Malik said of the man in a state of ihram that he may take back his wife if he wishes, while she is still within her waiting period from him. It is also reported from Sa'id ibn al-Musayyib that a man had married while in a state of ihram and that the people of Medina unanimously agreed to separate them (al-Bayhaqi in as-Sunan al-Kubra 8949).
It is because it is a marriage followed neither by the lawfulness of intercourse nor even by the kiss that it is invalid, like marriage with a woman in the waiting period of an irrevocable divorce; and because it is a contract whose intended purpose the ihram prevents, it is therefore forbidden. The Malikis said: the statement 'the one in ihram neither marries, nor is given in marriage, nor makes a proposal' means that it is forbidden to him; it is likewise forbidden to him to attend a marriage. If one of the two spouses, or the guardian, or the agent, is in a state of ihram at the time of the contract, the marriage is invalid, and more strongly so if they are several; the time of the delegation of powers is not taken into account, according to the statement of the Prophet 'the one in ihram neither marries nor marries off', and because marriage is a cause through which the prohibition of affinity is established, or through which the woman becomes a wife: it must therefore be forbidden during the ihram like intercourse. And because for everything for which perfume is forbidden, marriage is forbidden too, like the waiting period.
The man in a state of ihram may on the other hand take back his wife still within her waiting period, for it is not a marriage contract, but one of the rights of marriage, which the ihram does not forbid, like divorce and zihar. All of this concerns the specific guardian; as for the governor and the judge, either of them may be in a state of ihram and delegate a man free of ihram, and the contract of the lawful agent is then valid (Sharh Sahih al-Bukhari 4/408-409; at-Tamhid 2/156-157; al-Istidhkar 4/117-118; 'Uyun al-Masa'il 266; al-Jami' li-masa'il al-Mudawwana 9/260; Hashiyat al-'Adawi 2/97; Tafsir al-Qurtubi 3/222; the Sharh of Ibn Naji upon the matn al-Risala of Ibn Abi Zayd al-Qayrawani 2/41).
The Shafi'is said: the ihram of any of the participants in the contract, whether guardian, even the governor, or husband, or agent of either of the two, or of the wife, in hajj or umrah, even an invalid one, prevents the validity of the marriage. For the one in ihram is stripped of capacity in the marriage contract: independence, guardianship and agency, for whoever stands on either side of the offer and the acceptance, whether in hajj or umrah, in a valid or invalid state; according to the statement of the Prophet 'the one in ihram neither marries, nor is given in marriage, nor makes a proposal' (Muslim 1409). It is reported from Anas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: 'The one in a state of ihram neither marries nor marries off' (ad-Darqutni 3695).
The imam an-Nawawi (may Allah have mercy on him) said: Muslim mentioned the divergence: did the Prophet (peace and blessings be upon him) marry Maymuna while in ihram or while lawful? The scholars differed over the marriage of the pilgrim in ihram because of that. Malik, ash-Shafi'i, Ahmad and the majority of the scholars among the Companions and then their successors said: the marriage of the pilgrim in ihram is not valid, relying on the hadiths of the chapter. Abu Hanifa and the Kufans said: his marriage is valid, according to the hadith of the account of Maymuna. The majority answered the hadith of Maymuna with several arguments:
As for his statement 'nor marries off', it means that he does not give a woman in marriage by guardianship nor by agency. The scholars said: the reason is that, when he was prevented from contracting for himself during the ihram, he became like the woman: he therefore contracts neither for himself nor for another. The apparent generality of the statement indicates that there is no difference between giving in marriage by specific guardianship, like the father, the brother and the uncle, or by general guardianship, which is that of the governor, the judge and their deputy: such is the correct position with us and with the majority of our companions. Some of our companions said that the muhrim may give in marriage by general guardianship, for it procures what the specific one does not: hence it is permitted for the Muslim to give a protected subject woman in marriage by general guardianship, not by the specific one. Know that the prohibition of marrying and of giving in marriage in the state of ihram is a prohibition of prohibition: if he contracts, the marriage is not concluded, whether the muhrim is the husband, the wife, or the one who contracts for them by guardianship or agency; the marriage is void in all of that, to the point that if the two spouses and the guardian are lawful but they delegate a man in a state of ihram for the contract, the marriage is not concluded (Sharh Sahih Muslim 9/194-195).
Ibn Qudama (may Allah have mercy on him) said: an issue: 'The one in ihram neither marries nor marries off; if he does, the marriage is void.' His statement 'neither marries' means that he does not accept marriage for himself; 'nor marries off' means that he is neither guardian nor agent of the marriage; it is not permitted either to give a woman in ihram in marriage; this is reported from Umar, from his son and from Zayd ibn Thabit (may Allah be pleased with them), and Sa'id ibn al-Musayyib, Sulayman ibn Yasar, az-Zuhri, al-Awza'i, Malik and ash-Shafi'i said so. Ibn 'Abbas permitted it, and it is the view of Abu Hanifa, according to what Ibn 'Abbas reported in a hadith muttafaq 'alayh, that the Prophet (peace and blessings be upon him) married Maymuna while in ihram; and because marriage is a contract through which enjoyment is acquired, which the ihram does not forbid, like the purchase of slave women.
Our evidence: what Aban ibn Uthman reported from Uthman ibn 'Affan (may Allah be pleased with him), that the Messenger of Allah (peace and blessings be upon him) said 'the one in ihram neither marries, nor is given in marriage, nor makes a proposal', reported by Muslim; and because the ihram forbids perfume, it therefore forbids marriage, like the waiting period. As for the hadith of Ibn 'Abbas, Yazid ibn al-Asamm reported it from Maymuna: the Prophet married her while lawful, consummated the marriage with her while lawful, and she died at Sarif, in the tent in which he had consummated with her; reported by Abu Dawud and al-Athram. From Abu Rafi': 'The Messenger of Allah (peace and blessings be upon him) married Maymuna while he was lawful and consummated with her while he was lawful; I was the messenger between the two of them.' At-Tirmidhi said: this is a hasan hadith; Maymuna knows best what concerns her, and Abu Rafi' is the man of the affair and its emissary: they are therefore more knowledgeable than Ibn 'Abbas and better entitled to be preferred, even had he been grown; how much more so when he was small, ignorant of the realities of things and incapable of grasping them; and this view of his was moreover contested.
Sa'id ibn al-Musayyib said: Ibn 'Abbas erred; the Prophet (peace and blessings be upon him) married her only while lawful. How could one act upon a hadith in this state? His statement 'while he was muhrim' can be interpreted as: during the sacred month or in the sacred city, as one says: 'they killed the son of 'Affan, the caliph, as a muhrim'. It has also been said: he married her while lawful and announced her marriage while in a state of ihram. And even if the two hadiths were sound, preference would go to our hadith, for it is the statement of the Prophet, and it is also his deed; the statement is stronger, for it may be specific to what he did. And the marriage contract differs from the purchase of the slave woman, for it is forbidden by the waiting period, apostasy, the difference of religion and the fact that the wife be his sister through breastfeeding, and conditions that have no place in purchase apply to it.
A chapter: when the man in a state of ihram marries, gives in marriage or is given in marriage, the marriage is void, whether all were in ihram or some of them, for it is forbidden; it is therefore not valid, like the marriage of a woman to her paternal or maternal aunt. Ahmad said: if the muhrim gives in marriage, I do not annul the marriage. Some of our companions said that this indicates that if the guardian alone, or the agent, is in a state of ihram, the marriage is not invalid; the first view is the madhhab, and Ahmad's statement may be understood as his not annulling it because the question is disputed. Al-Qadi said: they are separated by a divorce; likewise every disputed marriage. Ahmad said in the narration of Abu Talib: if she marries without a guardian, the guardian may not give her to another until he (the first husband) divorces her; for giving her in marriage without divorce leads to the woman having two husbands, each believing her lawful to himself (al-Mughni 3/157-158; al-Kafi 1/402).
Ibn Qudama said further: the man in a state of ihram, if he marries for himself or contracts the marriage for another, as guardian or agent, the marriage is not valid, according to the statement of the Prophet 'the one in ihram neither marries, nor is given in marriage, nor makes a proposal', reported by Muslim. If a lawful man contracts a marriage for a man in a state of ihram, as his agent or guardian, or contracts it with a woman in a state of ihram, it is not valid, for it falls under the generality of the hadith: when his agent marries for him, he has married. Al-Qadi reported two views on the case of the muhrim as guardian for another: the first, that the marriage is not valid, the choice of al-Khiraqi; the second, that it is valid, the choice of Abu Bakr, for marriage is forbidden to the muhrim only because it falls among the causes of intercourse that corrupt the pilgrimage, and that does not occur when he is guardian for another. The first is preferable: it falls under the generality of the report, and it is a contract not valid on the part of the muhrim, so it is not valid from him, like the purchase of game (al-Mughni 7/140; al-Kafi 1/402; Matalib Uli an-Nuha 2/345).
The Hanafis held that it is permitted for the muhrim to be guardian of the marriage contract for himself and for another, and to delegate and be delegated (al-Mabsut 4/191; Mukhtasar Ikhtilaf al-'Ulama' 2/114-115; Sharh Ma'ani al-Athar 2/268-271; al-Hidaya, Sharh al-Bidaya 1/193; Tabyin al-Haqa'iq 2/110), according to what Muslim reported from 'Amr ibn Dinar from Abu ash-Sha'tha' that Ibn 'Abbas (may Allah be pleased with them both) told him that the Prophet (peace and blessings be upon him) married Maymuna while in ihram (Muslim 1410); it is not however permitted for him to enter upon her before he has left his ihram.
The imam at-Tahawi (may Allah have mercy on him) said: as for the examination of this question: intercourse with women is forbidden to the muhrim, and one might therefore have thought that it was the same for the marriage contract. We examined and found that they agree that there is no harm for the muhrim in buying a slave girl, without consummating with her until he leaves ihram, nor in buying perfume to perfume himself with afterwards, nor a shirt to wear afterwards; yet intercourse, perfume and clothing are all forbidden to him during the ihram, and that prohibition did not prevent him from contracting ownership. We saw that the muhrim does not buy game: one might therefore have thought that the marriage contract follows the regime of the contract of purchase of game or that of the other purchases described. Upon examination, one finds that the one who enters ihram while holding game is ordered to let it go, and the one who enters ihram with a shirt and perfume is ordered to discard them, without this being like the game which he is ordered to abandon. We saw that when he enters ihram with a wife, he is not ordered to divorce her, but to keep and protect her: the woman therefore belongs, in this respect, to clothing and perfume, not to game. The examination thus leads to assimilating the future marriage contract to the future contract of ownership over clothing and perfume, which become lawful to wear and to use after leaving ihram.
Someone objected: we see the one who marries his sister through breastfeeding: his marriage is void, whereas had he bought her, his purchase would be lawful; purchase can therefore be concluded upon what whose intercourse is not lawful, whereas marriage can only be upon the one whose intercourse is lawful; and intercourse was forbidden to the muhrim: marriage should therefore be forbidden to him. The proof of the latter was: we see the fasting man and the one in retreat: intercourse is forbidden to each of them; yet all agree that this prohibition does not prevent them from contracting marriage for themselves, for what forbids intercourse to them is a religious prohibition, like the prohibition of the menstruating woman, which does not prevent her from contracting marriage for herself; the prohibition of the ihram is of the same nature. We see breastfeeding: if it occurs upon a marriage, it annuls it, and marriage cannot be concluded taking it into account; whereas the ihram, if it occurs upon a marriage, does not annul it: nothing therefore prevents concluding the marriage. And the prohibition of intercourse through ihram equals that through fasting: if the prohibition of fasting does not prevent the marriage contract, the prohibition of ihram does not prevent it either. Such is the examination in this chapter: it is the view of Abu Hanifa, Abu Yusuf and Muhammad (may Allah have mercy on them) (Sharh Ma'ani al-Athar 2/272).
The imam Ibn Rushd al-Qurtubi (may Allah have mercy on him) said: they differed on the marriage of the muhrim. Malik, ash-Shafi'i, al-Layth, al-Awza'i and Ahmad said: the muhrim neither marries nor marries off; if he does, the marriage is void: this is the view of Umar ibn al-Khattab, of 'Ali, of Ibn Umar and of Zayd ibn Thabit. Abu Hanifa said: there is no harm in it. The cause of their difference: the contradiction of the reports in this chapter, among which the hadith of Ibn 'Abbas that the Messenger of Allah (peace and blessings be upon him) married Maymuna while in ihram, a hadith firmly established in transmission, extracted by the authors of the Sahihs; many hadiths of Maymuna contradicted it, according to which the Messenger of Allah married her while lawful. Abu 'Umar said: it was reported from her by various paths: that of Abu Rafi', that of Sulayman ibn Yasar, her client, and that of Yazid ibn al-Asamm; and Malik also reported the hadith of Uthman ibn 'Affan, according to which the Messenger of Allah said 'the one in ihram neither marries, nor is given in marriage, nor makes a proposal'.
Whoever preferred these hadiths to that of Ibn 'Abbas said: the muhrim neither marries nor marries off; whoever preferred the hadith of Ibn 'Abbas, or reconciled between it and the hadith of Uthman ibn 'Affan by interpreting the prohibition as mere disapproval, said: he marries and marries off; this goes back to the contradiction of deed and word, with the possibility of reconciliation or of preferring the word (Bidayat al-Mujtahid 2/34-35).
Seventh: the marriage of the sick person. The jurists differed on its ruling: is it valid? The Malikis held that the marriage of the sick man, or of the sick woman, or of both together, is not valid, whether the illness is mortal by consensus or not, according to the famous view, and whether the sane heir permitted it or not, still according to the famous view: for the heir who permitted may die before the sick person, and the heir of the latter may be other than the one who permitted; this possibility makes the permission of the heir equivalent to nothing. The marriage is likewise invalid whether the sick man needs to marry or not, according to the famous retained view: because of the prohibition of introducing an heir; and he was not prevented from consummating with his wife because marriage introduces a confirmed heir, whereas not every act of intercourse entails pregnancy.
Another saying, which the commentary al-Jawahir declares to be the famous view, restricts the prohibition of marriage, even with the permission of the heir, to the absence of need for the marriage or for someone who would take care of him and serve him in his illness: thus, if he needs that, marriage is permitted to him even if the heir prevents it. Assimilated to the sick man in this rule: everyone absent from the battlefield present in the ranks of fighting, the condemned about to be amputated, the detainee threatened with execution, and the woman six months pregnant, in the case where her husband has divorced her with an irrevocable divorce other than the third and would wish to marry her after six months or more of pregnancy: it is permitted to neither of them, for she is 'neglected' in that state.
As for the woman whose marriage was annulled after consummation of the stipulated dower: if she marries during her illness and the husband consummates, the stipulated dower is paid to her from the principal of the husband's wealth, small or great, even if it be unlawful; his death is like the consummation: the stipulated dower is then paid to her from the principal of his wealth; likewise if she dies before him and before the annulment; and there is no inheritance for the one who remains alive after the death of his companion. If the sick man marries with a mortal illness during his illness and consummates without the marriage being annulled, then dies: there is due to her, from the third of his wealth, the lesser between the stipulated dower and the dower of the like; if the third is less than both, she takes only the third. It follows that the least of three things is due to her: the third, the stipulated dower and the dower of the like. If he recovers from the illness, the marriage is not annulled and she takes the stipulated dower from the principal of his wealth. As soon as his illness is discovered, the marriage is annulled, even after consummation, even if she is menstruating; if it is annulled before consummation, nothing weighs upon him, unless he recovers and the marriage is not annulled (al-Mudawwana al-Kubra 4/246-247; al-Kafi, p. 248; Mawahib al-Jalil 5/132-134; Sharh Mukhtasar Khalil 3/234-235; Hashiyat al-'Adawi 2/98; Sharh al-Kabir with Hashiyat ad-Dasuqi 3/101-102; Tahrir al-Mukhtasar 2/648-651).
The majority of the jurists, the Hanafis, the Shafi'is and the Hanbalis, held that the marriage of the sick person is valid, even if a mortal illness; only the portion exceeding the dower of the like is not valid, and her dower is a debt drawn from the whole estate, like the other debts. Likewise for the sick woman who marries a healthy man: her marriage is valid and the husband inherits from her; he owes her dower if it is of the like, and what exceeds it; if she married him for less than her dower of the like, by favor, the diminution is a bequest on his part: returned if the husband is an heir, charged to the third if he is not.
The proof of it is the statement of Allah the Most High:
"So marry the ones that please you among the women, by two, by three, by four"
Surah an-Nisa', 3
Without distinction between the healthy man and the sick. It is reported from Mu'adh ibn Jabal (may Allah be pleased with him) that he said in his illness: 'Marry me, so that I do not meet Allah single.' It is reported from Ibn Mas'ud (may Allah be pleased with him): 'Were only ten days left of my term, I would wish to have a wife.' Hisham ibn 'Urwa reported from his father that az-Zubayr (may Allah be pleased with him) visited Qudama, who was ill, and caught sight of a slave girl in his house. Qudama said: 'Marry me to her.' He said: 'What would you do with her in this state?' He said: 'If I live, I will attribute the lineage to az-Zubayr; if I die, they are the most worthy of inheriting from me.'
It is also because whoever has not been prevented from enjoying women is not prevented from marrying free women, like the healthy man; and because marriage is a bed from which the healthy man is not deprived: the sick man must therefore not be deprived of it, like the enjoyment of women; and because marriage is a contract which illness does not prevent, like selling and buying; and because its contract is never concluded without being for a need or for desire: if it is for a need, it cannot be prevented; if it is for desire, it is lawful to him, as it is lawful to him to eat or to dress as he pleases. As for the argument of suspicion and of harm: suspicion is far from the one at the point of death, for he generally aims at the face of Allah; and harm does not prevent the lawfulness of contracts, as in selling; if it is a harm to his heirs, it is a benefit for himself, and he has more right to his own benefit than to that of his heirs. As for the argument of the harm done to some heirs and of the crowding out of some of them: what the validity of which has not been prevented, illness does not prevent, like the acknowledgment of an heir and the manumission of the slave girl.
The imam ash-Shafi'i (may Allah have mercy on him) said: it is permitted for the sick man to marry all that Allah the Most High has made lawful, four women or less, as it is permitted to him to buy. If he fixes for each the dower of the like, the marriage is lawful to each from the whole estate; the portion exceeding the dower of the like is a favor: if he recovers before dying, it is lawful to her from the whole estate; if he dies before recovering, the portion exceeding the dower of the like falls away, the marriage stands and she is entitled to the inheritance. If the sick man marries and the dower fixed exceeds the dower of the like, then he recovers and then dies, the excess portion is lawful to her, for he recovered before dying and he is like the one who concluded a marriage in good health. If the contract remains as it is and he does not recover until the death of the wife, who then becomes a non-heir: she has the whole dower of the like from the principal, and the excess from the third, like what is given to a stranger and taken into possession is charged to the third; thus, what exceeds from the woman's dower the third, when she dies, is treated as the possessed gift.
Ash-Shafi'i said: if the wife is of those who do not inherit, like the protected subject woman, and he dies while she is with him, the whole dower, that of the like, is lawful to her from the whole estate, and the excess from the third, for she is not an heir; if she converts to Islam and becomes an heir, what exceeds the dower of the like falls away. Ash-Shafi'i said: if the sick man marries a woman through an invalid marriage and then dies, she does not inherit from him and has no dower if he did not consummate with her; if he consummated, she has the dower of the like, less or greater than the stipulated amount (al-Umm 4/103-104; see Mukhtasar Ikhtilaf al-'Ulama' 2/351-352; al-Hawi al-Kabir 8/279-280; an-Najm al-Wahhaj 6/243-244).
The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was asked about a sick man who had married during his illness: is the contract valid? He answered: the marriage of the sick person is valid, and the woman inherits according to the multitude of Muslim scholars among the Companions and the Followers; she is owed only the dower of the like, without excess, by consensus (Majmu' al-Fatawa 32/19). Abu Bakr Ibn al-Mundhir (may Allah have mercy on him) said: chapter of the marriage of the sick: Allah permitted marriage in His Book and recommended it; marriage is recommended, and the sick person is not prevented from it. Among those from whom we report its permission: az-Zubayr ibn al-'Awwam, Qudama ibn Maz'un, 'Abd al-Malik ibn Marwan, al-Hasan al-Basri, ash-Sha'bi, an-Nakha'i; and ath-Thawri, al-Awza'i, Ahmad, Ishaq, Abu 'Ubayd and the adherents of opinion said so; it is the madhhab of ash-Shafi'i.
A second view exists: the one who marries while sick, his wife does not inherit from him if he acted so as to harm; this is the view of az-Zuhri, followed by Malik. Al-Qasim and Salim said: if he acted so as to harm, it is not permitted; if he did not harm, it is permitted. Malik said: if he did not consummate, they are separated, without dower; if he consummated, she has her dower for what he made lawful of her, paid before bequests and manumission. Qatada said: if he married her out of need for service or care, she inherits from him (al-Ishraf 5/106-107).
The imam Ibn Rushd (may Allah have mercy on him) inclined to taking the interest (maslaha) into account: if the signs show that he aimed through the marriage at a good, the marriage is not prevented; if they show that he aimed at harming his heirs, he is prevented from it, as occurs in many crafts. He said: they differed on the marriage of the sick: Abu Hanifa and ash-Shafi'i said it is permitted; Malik, according to the famous view, said it is not permitted; from his statement it follows that they are separated even if the marriage is valid, and it likewise follows from his statement that they are not separated that the separation is recommended, not obligatory. The cause of their difference: marriage oscillates between sale and gift, for the gift of the sick man is valid only within the limit of the third, whereas his sale is valid. Another cause of their difference: is the man suspected of harming the heirs by introducing an additional heir, or not?
The analogy of marriage with the gift is not correct: they agree on the validity of the gift if the third covers it, and they did not here assimilate marriage to the third. Rejecting the validity of the marriage that introduces an heir is an analogy of interest, not admitted by most of the jurists: it produces interests that the law did not consider, outside a category far removed from the one in which one seeks to establish a ruling through interest, to the point that some judged this opinion an innovation added to the law. Applying this analogy weakens what is in the law of fixity, whereas neither addition nor subtraction is admitted there. Refraining also from considering interests opens the way for people to neglect the rules of this domain in favor of injustice: let such interests therefore be entrusted to the scholars wise in the laws, to the eminent ones of whom one does not suspect that they judge by them, especially if it is understood among the people of that time that engaging in the appearances of the law opens ways to injustice. The way of the virtuous scholar is to examine the signs of the situation: if the proofs show that he aimed through the marriage at a good, the marriage is not prevented; if they show that he aimed at harming his heirs, he is prevented from it, as occurs in many crafts where the craftsman faces a thing and its opposite, because of the strength of his craft, since one cannot fix in it an artificial limit; this often occurs in the craft of medicine and the other various crafts (Bidayat al-Mujtahid 2/35).
Eighth: the secret marriage. There is no divergence among the Muslim jurists: the secret marriage is forbidden. The imam Ibn al-'Arabi (may Allah have mercy on him) said: marriage is a contract that requires announcement, without divergence; the secret marriage is forbidden, without divergence ('Aridat al-Ahwadhi 4/306). Ibn Rushd said: they agree that it is not permitted (Bidayat al-Mujtahid 2/13). The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: as for the secret marriage of which the spouses agree to conceal the existence without calling any witness, it is void according to the generality of the scholars, and it belongs to the category of debauchery (sifah) (Majmu' al-Fatawa 33/158).
The jurists nevertheless differed: if two witnesses attend the marriage, is it a secret marriage, or is announcement and the absence of concealment or of an agreement to conceal it required? The majority of the jurists, the Hanafis, the Shafi'is and the Hanbalis, held that every marriage attended by two just men leaves the category of the secret, even if they were to agree to conceal it. The commanded announcement is the testimony, for through the presence of the two witnesses the announcement takes place and the marriage ceases to be secret. Never has a prohibition of the secret marriage with the testimony of two just men proven sound; and the marriage attended by the husband, the one who gives in marriage, the wife and the two witnesses is not secret. The poet said: 'Every secret that passes two spreads.' Another said: 'The secret, two keep it between them; every secret beyond two spreads.'
The secret marriage is therefore the one which two witnesses did not attend; the one they attended is a public marriage, not a secret marriage, for as soon as the secret passes beyond two it ceases to be secret. Likewise the statement of the Prophet (peace and blessings be upon him) 'announce the marriage': as soon as two witnesses attend it, it is announced; and his statement 'even with the tambourine' is an incitement to increase its announcement, which is recommended (Bada'i' al-Sana'i' 2/252-253; Sharh Fath al-Qadir 3/200; Tabyin al-Haqa'iq 2/98; al-Muhalla 9/466; al-Hawi al-Kabir 9/59).
In the Muwatta of the imam Malik, according to the narration of Muhammad ibn al-Hasan ash-Shaybani (may Allah have mercy on him), chapter of the secret marriage, Malik reported from Abu az-Zubayr that a man was brought to Omar for a marriage at which only a man and a woman had testified. Omar said: 'This is the marriage of the secret, we do not permit it; had I preceded (the people) in it, I would have stoned.' Muhammad ibn al-Hasan said: we follow this view, for marriage is not permitted with fewer than two witnesses; yet there was upon this marriage rejected by Omar only a man and a woman: it is therefore the marriage of the secret, for the testimony was not complete; had the testimony been completed by two men, or a man and two women, it would be a permitted marriage, even if secret. What corrupts the secret marriage is the absence of witnesses; as soon as the testimony is complete, it is a public marriage, even if they kept it secret (Muwatta Malik in the narration of Muhammad ibn al-Hasan 2/446).
Ibn Qudama (may Allah have mercy on him) said: if he concludes the marriage with a guardian and two witnesses, then they conceal it or agree to conceal it, that is disliked and the marriage is valid; Abu Hanifa, ash-Shafi'i and Ibn al-Mundhir say so. Among those who disapproved of the secret marriage: Omar (may Allah be pleased with him), 'Urwa, 'Abdallah ibn 'Ubaydallah ibn 'Utba, ash-Sha'bi and Nafi', the client of Ibn Umar. Abu Bakr 'Abd al-'Aziz said: the marriage is void, for Ahmad, asked about marriage with a guardian and two witnesses, said: no, until he announces it; and this is the madhhab of Malik.
Our evidence: his statement 'no marriage without a guardian', whose implication is that the marriage is concluded with it even if the announcement is lacking; and because it is a contract of exchange, in which announcement is not required, as in sale. The reports on announcement aim at recommendation, as indicated by the command to beat the tambourine and to raise the voice, which is not obligatory: the same applies to what is attached to it. And Ahmad's statement 'no' is a prohibition of disapproval, for he stated elsewhere the recommendation of the announcement; the announcement of the marriage and the tambourine take place most often after the contract: were it a condition, the state of the contract would be taken into account, like the other conditions (al-Mughni 7/63-64). Al-Bahuti (may Allah have mercy on him) said: the marriage is not annulled by the agreement to conceal it, for with the testimony it is not concealed; if the two spouses, the guardian and the witnesses conceal it deliberately, the contract is valid and their concealment is disliked, for the sunna is to announce the marriage (Kashshaf al-Qina' 5/71).
The Malikis held that the recommendation to conceal the marriage voids the contract. Abu 'Umar Ibn 'Abd al-Barr (may Allah have mercy on him) said: the secret marriage, according to Malik and his companions, is the one in which the witnesses are asked to keep silent, or in which the witnesses include a man and two women, and all that is similar, aiming at concealment and at abandoning the announcement. Ibn al-Qasim reported from Malik: if he marries with testimony and then orders them to keep silent about it, the marriage is not permitted; if he marries without testimony, without seeking secrecy, it is permitted, and they testify to what they will face in the future. Ibn Wahb reported from Malik, concerning the man who marries a woman with the testimony of two men while asking them to keep silent: they are separated by divorce and the marriage is not permitted; she has her dower if he consummated with her; the two witnesses are not punished if they were unaware of the ruling; if they knew it, they are punished, for they knew that this was not fitting.
Ash-Shafi'i, Abu Hanifa and their companions said: if he marries her with two witnesses and says to them: 'conceal', the marriage is permitted; this is the view of Yahya ibn Yahya, our companion: every marriage to which two men testified leaves the category of the secret; I think he reports it from al-Layth ibn Sa'd. The secret, according to ash-Shafi'i, the Kufans and their followers, is every marriage to which two men or more did not testify; it is annulled in every case (al-Istidhkar 5/470; adh-Dhakhira 4/401). Al-Qadi 'Abd al-Wahhab (may Allah have mercy on him) said: the agreement to conceal the marriage voids the contract, contrary to Abu Hanifa and ash-Shafi'i, according to his statement:
Announce the marriage, and strike upon it with the sieve.Weak hadith: reported by Ibn Majah (1895); its first part, 'announce the marriage', is hasan, reported by Ahmad (16175) and Ibn Hibban in his Sahih (4066)
It is also reported that he (peace and blessings be upon him) forbade the secret marriage: a weak hadith, reported by at-Tabarani in al-Awsat (6874) and Abu Nu'aym in Hilyat al-Awliya (6/93), weakened by Ibn Hazm in al-Muhalla (9/466) and others. At-Tabarani said after reporting it: no one reported this hadith from az-Zuhri except Raja' ibn Abi Salama, and no one reported it from Raja' except Damra, whom Muhammad ibn al-Wazir alone reported. And because debauchery is committed in secret and concealed, the marriage must take place at its contrary; otherwise it would become an avenue to its license: everyone found with a woman would claim she is his wife and that his witnesses are absent; the matter must therefore be settled. And because the announcement preserves lineages and guards against their denial: the husband may deny the marriage while the woman is pregnant, without her being able to establish it, which leads to the loss of lineage; with witnesses and announcement, he cannot do so (al-Ishraf 3/297-298, no. 1131; al-Ma'una 1/494-495).
The imam Ibn al-'Arabi, the Maliki (may Allah have mercy on him), said: marriage is a contract that requires announcement, without divergence; the secret marriage is forbidden, without divergence. They differed on its modality: ash-Shafi'i said that every marriage attended by two just men leaves the category of the secret, even if they were to agree to conceal it. Abu Hanifa said: if two men attend it, just or legally restricted, or a man and two women, it leaves the category of the secret, even if they were to agree to conceal it; and they held that the commanded announcement is the testimony. Our companions, without divergence, said that the secret marriage is the one in which one agrees with the just witnesses upon concealment, and this is not permitted; if he marries without witnesses, without seeking secrecy, it is permitted and they testify to what they will face: for the testimony is neither obligation nor condition of the marriage; the obligation is the announcement; the testimony serves only to prevent the expected dispute between the contracting parties. Thus ran the marriages of the Companions: never with testimony; they announced in order to be secure from one another ('Aridat al-Ahwadhi 4/306-307).
Ibn al-Mundhir (may Allah have mercy on him) said: chapter of the secret marriage. Abu Bakr said: Allah made lawful the marriage and forbade debauchery; the hadith came to us from the Prophet (peace and blessings be upon him):
Announce the marriage.Hasan hadith: reported by Ahmad (16175) and Ibn Hibban in his Sahih (4066)
And among those from whom we report the disapproval of the secret marriage: Umar ibn al-Khattab, 'Urwa ibn az-Zubayr, ash-Sha'bi, Nafi' the client of Ibn Umar, and 'Abdallah ibn 'Utba. They differed on the marriage concluded with just testimony, in secret: Malik said they are separated, and that it is permitted if there are no witnesses, so long as they announce it; according to the view of ash-Shafi'i, the marriage is permitted and it is not a secret marriage; an-Nu'man said, concerning the secret marriage: they are not separated; Abu Bakr said: the marriage is permitted as soon as it is concluded by that by which marriage is concluded (al-Ishraf 5/32-33).
Ibn Rushd (may Allah have mercy on him) said: they agree that it is not permitted. They differed when he calls two witnesses and recommends to them concealment: is it a secret or not? Malik said: it is a secret and it is annulled; Abu Hanifa and ash-Shafi'i said: it is not a secret. The cause of their difference: is the testimony in this a legal ruling, or does it aim only at closing the way to dispute or denial? Whoever says 'legal ruling' makes it a condition of validity; whoever says 'assurance' makes it a condition of completeness. The origin of it is what is reported from Ibn 'Abbas: 'no marriage without two just witnesses and a prudent guardian', with no opponent among the Companions; many people saw in this a consensus, but it is weak; and this hadith is also reported marfu': ad-Darqutni mentioned it while noting unknowns in its chain.
Abu Hanifa holds that the marriage is concluded by the testimony of two notorious sinners, for the purpose of the testimony is for him only the announcement; ash-Shafi'i holds that the testimony combines the two meanings, the announcement and the certainty, for which he requires justice; as for Malik, it does not include the announcement when the two witnesses are asked to keep silent. The cause of their difference: does that in which testimony occurs bear the name of secret or not? The origin of the requirement of announcement is the statement of the Prophet (peace and blessings be upon him) 'announce this marriage and strike upon it with tambourines', reported by Abu Dawud; Omar said of it: 'this is the marriage of the secret; had I preceded in it, I would have stoned' (Bidayat al-Mujtahid 2/13).
Ad-Dardir (may Allah have mercy on him) said: '(and it is annulled)': the marriage 'upon which one has recommended' keeping its existence concealed 'from the wife of the husband', at the time of the contract or before. The one who recommends (musi, with the broken letter) is the husband alone, or with his new wife; those to whom it is recommended (musa, with the open letter) are specifically the witnesses. His statement 'if by the silence of witnesses': the waw marks the state and the 'if' is superfluous; omitting them would have been briefer and clearer, for the secret marriage is the one of which the husband recommended to the witnesses to keep the existence concealed from his wife or from a group, even the people of a household, as will come, when the concealment is not motivated by fear of an oppressor or the like. As for the recommendation of the guardian alone, or of the wife alone, or when they themselves are the witnesses without the husband, or when the two spouses and the guardian agree on the silence without recommending it to the witnesses, it does no harm; likewise if the recommendation of silence made to the witnesses occurs after the contract.
It was answered that the hyperbole lies in his statement '(upon) a woman', attached to the silence of the husband, whose apparent meaning is that this applies even if he announces it to another woman, which is apparent elsewhere as well; 'or' recommended to keep it concealed from the people of a 'household', to their exclusion; 'or' to keep it concealed for a specified 'period of days'. Al-Lakhmi: 'two days' like 'days'; the apparent meaning of the author's statement is that the statement of al-Lakhmi is contrary; and the place of the annulment 'if he does not enter and it does not last long' means: if both conditions fail, that he does not enter, or that he enters without its lasting long; if he enters and it lasts long, the marriage is not annulled. It has been established that the length here is appreciated by custom, not by the birth of children: it is that which habitually gives rise to the appearing and the renown. 'And that they be punished': the two spouses if they consummate without being excused by ignorance and without constraint; otherwise their guardian; and 'the witnesses' are punished likewise (Sharh al-Kabir with Hashiyat ad-Dasuqi 3/38-40).
Ad-Dasuqi (may Allah have mercy on him) said: the meaning is that the marriage of which one recommended keeping the existence concealed is annulled; that is, if the husband recommended to the witnesses to conceal it permanently from everyone, even if he recommended to them to conceal it from the wife of the husband, or from the people of the household, or for a period of days. The commentator (al-Mawwaq) followed this position, based on the fact that the concealment requested from others than the witnesses does not make the marriage a secret marriage, and he relied on the statement of Ibn 'Arafa: the secret marriage is void; the famous view is that the witnesses are ordered at the time of the contract to keep it concealed: this is debatable, and the correct position is to keep the author's wording in its apparent meaning, and that the concealment requested from others than the witnesses makes the marriage a secret marriage, as in at-Tawdih from al-Baji, and likewise elsewhere. Al-Baji stated it: if the two spouses and the guardian agree to conceal it without informing the witnesses, it is a secret marriage. In al-Ma'una: if they agree to conceal the marriage, the contract is void, contrary to ash-Shafi'i and Abu Hanifa. Our shaykh al-'Adawi summarized that it is better to keep the wording of the text in its apparent meaning, and that the meaning is: annulled is the marriage of which one recommended keeping the existence concealed, that is, if those agreeing to the concealment are the witnesses, the wife and the guardian, or even the witnesses alone; that is, the one who recommends the silence is the husband alone, or with the wife. Everything depends on the recommendation made to the witnesses, whether others are associated with it or not, and on the one recommending being the husband, whether others join him or not: if the wife and the guardian conceal the marriage from the witnesses without the husband, it has no effect; and if they together agree to conceal it without recommending it to the witnesses, the same applies.
It follows from all this that the secret marriage involves two ways: the way of al-Baji, according to which the concealment requested from others than the witnesses also makes the marriage a secret marriage, as when the two spouses and the guardian agree to conceal it without recommending it to the witnesses; it was preferred by al-Qarafi. And the way of Ibn 'Arafa, preferred by al-Mawwaq, according to which the secret marriage is the one of which the witnesses were asked to keep the existence concealed, whether others were associated with it or not, the one recommending having to be the husband, whether the wife joins him or not. The author's wording can bear upon the two: it may mean that the marriage is annulled when those agreeing to the concealment are the wife, the guardian, or both, or even the witnesses, according to the way of al-Baji; or when those agreeing to the concealment are the wife, the guardian and the witnesses, or even the witnesses alone, according to the way of Ibn 'Arafa.
His statement '(upon) a woman' has as its apparent meaning: the wife of the husband or another, according to what the author reported from al-Wadiha; in the statement of Ibn 'Arafa: a wife of his. His statement 'period of days' means: three days or more, according to what Ibn Habib reported. His statement 'contrary' means: contrary to the madhhab, where he expressed himself by 'days' without specifying 'two days', as al-Lakhmi said; one may also say that the plural 'days' with the author designates what exceeds one, so that it agrees with al-Lakhmi and not with what Ibn Habib reported: to ponder. His statement 'both fail' indicates that the waw means 'with', and that the negation bears upon the whole. His statement 'or that he enters without its lasting long' means that, in these two cases, the marriage is annulled by a divorce, for the question is disputed: ash-Shafi'i and Abu Hanifa admit its validity, as does a group of the companions of Malik. His statement 'it is not annulled' is understood according to the famous view, contrary to Ibn al-Hajib, who said that it is annulled after consummation even if long. His statement 'and that they be punished' designates the two spouses, the apparent meaning being even without consummation, for having committed disobedience.