Islamic Fiqh > Marriage and family > Forbidden marriages: shighar, muta and muhallil > Is the mut'a marriage subject to the hadd punishment?
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
The majority of jurists, the Hanafis (Bada'i al-Sana'i, 7/36; al-Natfi fi al-Fatawa, 1/267), the Malikis in the madhhab (Tafsir al-Qurtubi, 12/106; Mawahib al-Jalil, 5/84; Sharh Mukhtasar Khalil, 3/196; al-Sharh al-Kabir with al-Dasuqi's gloss, 3/42; Tahrir al-Mukhtasar, 2/582; Hashiyat al-Sawi, 4/497), the Shafi'is (Sharh Sahih Muslim, 9/181-182) and the Hanbalis, state that whoever contracts a mut'a marriage is not subject to the hadd, but undergoes disciplinary punishment and correction.
Imam Ibn Qudama (may Allah have mercy on him) said: the hadd does not become due for intercourse in a disputed marriage, such as the mut'a marriage, shighar, the muhallil marriage, a marriage without guardian or witnesses, the marriage of a sister during the bayin waiting period of her sister, the marriage of a fifth wife during the bayin waiting period of the fourth, and the marriage of a Magian woman; and this is the view of most of the scholars, because the disagreement over the lawfulness of intercourse involves a doubt, and the legal punishments are averted by doubts. Ibn al-Mundhir said: all the scholars whose statements we preserve agree that the legal punishments are averted by doubt (al-Mughni, 9/55; 'Umdat al-Fiqh, 1/146; al-Rawd al-Murba', 2/555; Matalib Uli al-Nuha, 6/184).
Some Malikis hold that the hadd is due: if he is a virgin he is flogged, and if he is married he is stoned. Al-Nawawi (may Allah have mercy on him) said: Malik's companions differed over whether the one who penetrates it is liable to the hadd; and our madhhab is that there is no hadd, because of the doubt in the contract and the doubt in the disagreement (Sharh Sahih Muslim, 9/181-182). Al-Mawardi (may Allah have mercy on him) said: the prohibition of mut'a being established, there is no hadd because of the doubt; they are subjected to disciplinary punishment by way of correction, if they knew of the prohibition. She has the mahr of similitude upon consummation, not the named amount, as well as the waiting period; and if she gives birth to a child, it is attributed to the one who consummated, for she became a bed through a doubtful consummation; they are separated without divorce, since there is no binding marriage between them; and this consummation establishes the prohibition of affinity (al-Hawi al-Kabir, 9/332).
Al-Dardir (may Allah have mercy on him) said: the marriage is dissolved absolutely, before consummation and after, like a marriage for a term, whether the term is specified or not, and this is what is called the mut'a marriage; it is dissolved without divorce; it is said: with it (the divorce); and the two spouses undergo punishment in it according to the madhhab; it is said: they are subject to the hadd. Al-Dasuqi (may Allah have mercy on him) said: his statement "the two spouses undergo punishment in it according to the madhhab" means that the child is attributed to the husband, and that the ruler's punishment does not reach the amount of the hadd; and his statement "it is said: they are subject to the hadd" refers to a weak view (al-Sharh al-Kabir with al-Dasuqi's gloss, 3/42; see also Tafsir al-Qurtubi, 12/106; Mawahib al-Jalil, 5/84; Sharh Mukhtasar Khalil, 3/196; Tahrir al-Mukhtasar, 2/582; Hashiyat al-Sawi, 4/497).
The jurists differed over the case where the marriage is contracted with a condition of divorce: is it valid or not? The Hanafis hold that if he conditions divorcing her after a month, for example, the marriage is valid and the condition is void; for divorce is what terminates the marriage, and conditioning the termination after a month, so that the marriage ceases by it, is proof that they contracted permanently. The difference between the time-limited marriage (such as marrying a woman before the testimony of two witnesses for ten days, which is void) and the marriage with a condition of divorce (which is valid) is apparent: divorce terminates the marriage, and conditioning the termination after a month proves the existence of the contract permanently; that is why, once the month has elapsed, the marriage is not annulled: the marriage is valid and the condition void. As for the time-limited marriage, if the time-limiting were valid, there would be no contract between them after the duration has elapsed, as in a hire (al-Mabsut, 5/153; Bada'i al-Sana'i, 2/287; Sharh Fath al-Qadir, 3/249; Tabyin al-Haqa'iq, 2/115; al-'Inaya, 4/394-395; al-Bahr al-Ra'iq, 3/116; Durrar al-Hukam, 4/76; Majma' al-Anhar, 1/488).
The Malikis and the Hanbalis hold that this marriage is void. Imam Ibn Qudama (may Allah have mercy on him) said: an issue: "If he marries her on condition that he divorce her at a specific time, the marriage is not concluded"; meaning: if he marries her on condition of divorcing her at a specified time, the marriage is not valid, whether the time is known or unknown, as if it were conditioned upon him to divorce her if her father or her brother arrived (al-Mughni, 7/137; see also al-Sharh al-Kabir with al-Dasuqi's gloss, 3/42). Abu Hanifa said: the marriage is valid and the condition is void; and this is al-Shafi'i's most apparent view, which he states in most of his books, for the marriage occurred absolutely, and he only conditioned upon himself a condition, which has no effect on it, as if he conditioned not to marry over her nor to travel with her. Our proof is that this is a condition preventing the duration of the marriage, resembling the mut'a marriage; and it differs from that on which they made their analogy, for he did not condition the cutting off of the marriage (al-Mughni, 7/137).
As for the Shafi'is, Imam al-Mawardi (may Allah have mercy on him) said: if he marries her on condition of divorcing her after a month: if the condition comes from the husband's side, the contract is valid, for he may divorce her without a condition; if it comes from the wife's side, the contract is void, for he has prevented the duration of the contract. If he marries her on condition of releasing her by khul' after a month: if the condition comes from her side, the contract is void; if it comes from his side, its invalidity has two views. The first is that the contract is void, for he has obliged her, through khul', to pay what is not her obligation. The second is that the contract is valid, for it is a condition that did not prevent the purpose of the contract, so it reverts to the mahr: the named mahr is void, and the mahr of similitude is due to her (al-Hawi al-Kabir, 9/508; see also Bahr al-Madhhab by al-Ruyani, 9/489).
The jurists of the four schools agree that whoever marries a woman intending to divorce her after a period, his marriage is valid and is not a mut'a marriage, except for one Hanbali view explained below. Imam Ibn Abd al-Barr (may Allah have mercy on him) said: all of them said, except al-Awza'i: if he marries her by a valid marriage, without a condition, but intending not to keep her except for a month or a known period, there is no harm in that, and his intention does not harm him if that is not among the conditions of his marriage. Malik said: "The man, when marrying, must not intend to keep his wife confined; her confinement is if she agrees, otherwise let him divorce her." Al-Awza'i said: if he marries her without a condition but intending not to keep her except for a month or the like, and then divorces her, this is a mut'a and there is no good in it (al-Tamhid, 10/122-123).
Al-Nawawi (may Allah have mercy on him) said: Qadi Iyad said: they agreed that whoever marries by an absolute marriage, intending not to remain with her except for a period he has set, his marriage is valid and lawful and is not a mut'a marriage; the mut'a marriage is only that which occurs with the condition mentioned. Malik, however, said: "this is not among the morals of the people." Al-Awza'i diverged, saying it is a mut'a marriage and there is no good in it (Sharh Sahih Muslim, 9/182). Ibn Nujaym the Hanafi (may Allah have mercy on him) said: if he marries her intending to remain with her for a period he has set, the marriage is valid, for time-limiting occurs only through wording (al-Bahr al-Ra'iq, 3/116). Imam Badr al-Din al-'Ayni (may Allah have mercy on him) said, citing Zayn al-Din in the commentary on al-Tirmidhi: the forbidden mut'a marriage is that which occurs with time-limiting; as for the husband's determining in his own mind that he will remain with her only a year or a month or the like, without conditioning that, it is a valid marriage according to most of the scholars, except al-Awza'i, who said in this case: it is a mut'a and there is no good in it (al-Bunaya, Sharh al-Hidaya, 5/62).
The Malikis say: the reality of the mut'a marriage that is dissolved absolutely is that the contract take place with the term mentioned before the woman or her guardian. As for the case where that does not occur in the contract and the husband does not inform her, but intends it within himself, resolving to marry her, for example, as long as he remains in that town, or for a duration like a year, and then leave her after that period: this does no harm, by agreement, and it is not a mut'a marriage. And even if the woman or her guardian perceived that from his state, it does no harm either, according to the preferred view in the madhhab; it is a benefit that serves the expatriate. It is said: if she perceives from him the intention he holds within himself, the marriage is not valid and it is corrupt; the correct view is the first. Al-Mawwaq (may Allah have mercy on him) said: Ibn al-Qasim heard: there is no harm in marrying a woman with the intention of satisfying one's need and then divorcing her; "it is not among the morals of the people"; Ibn Rushd: this if he does not make it a condition (al-Sharh al-Kabir with al-Dasuqi's gloss, 3/42; Hashiyat al-Sawi, 4/497; al-Taj wa-l-Iklil, 2/514; Mawahib al-Jalil, 5/85).
Imam al-Shafi'i (may Allah be pleased with him) said: the basis of my position is that every contract which is valid in appearance, I do not void it on the basis of suspicion, nor of hostility between the two contracting parties, but I validate it by the validity of its appearance; and I disapprove between them the intention which, were it revealed, would corrupt the sale. Just as I disapprove of a man buying a sword in order to kill with it, without it being forbidden for the seller to sell it to someone he sees would kill unjustly, for he may not kill; and I do not void this sale. Just as I disapprove of a man selling grapes to someone he sees would press wine from them, without voiding the sale if he sells them to him, for he sold them lawfully, and it may be that he will never make wine of them, just as the bearer of the sword may never kill anyone; and just as the mut'a marriage is corrupted. If a man marries a woman by a valid contract, intending not to keep her except for a day, or less, or more, I do not void the marriage: it is voided only by a corrupt contract. And if a man arrives in a land and desires to marry a woman, and his intention, or his and her intention, is not to keep her except for the duration of his stay in the land, or a day or two or three, whether it is his intention without hers, hers without his, both of them, or the guardian's intention: if they contract the marriage absolutely, without a condition, the marriage stands and the intention corrupts nothing of the marriage, for the intention is inner speech, and people are absolved of what they tell themselves; one may intend a thing and not do it, and intend it and do it, the act then being an event distinct from the intention. Likewise if he marries her, he or she, or one of them without the other, intending not to keep her except as long as is needed for him to make her lawful for her husband who divorced her three times, the marriage stands, whether the guardian intends that along with them, or someone else intends it, or neither of them intends it; and the guardian here has no power to corrupt anything so long as the marriage has not taken place with a condition that corrupts it.
Al-Shafi'i said: if there was between them a negotiation in which he promised her, if she married him, not to keep her except for days, or for his stay in the land, or as long as needed to make her lawful, whether by oath or without oath, it is the same, and I disapprove of this negotiation. I examine the contract: if it is absolute, without condition, it stands, for each of them obtained from the other the rights of spouses; if it is contracted upon that condition, it is corrupt and becomes like the mut'a marriage. Any valid marriage in which consummation occurs protects (ihsan) the man and the woman if she is free, makes the woman lawful for the husband who divorced her three times, and makes the full mahr due; and the minimum of consummation for these rulings to apply is for the glans to disappear within the vulva itself. Any corrupt marriage does not protect the man or the woman, nor make her lawful for her husband; if he consummates with her, she has the mahr for what he made lawful of her private part.
Al-Shafi'i said: if someone objects: is there, in what I have mentioned, namely that a man marries intending the making lawful, with negotiation or without it, and that so long as the marriage is not contracted upon a condition, the marriage stands, a report from one of the Companions of the Messenger of Allah, or from below them? It is said: what we have mentioned, the prohibition of mut'a and the fact that mut'a is marriage for a term, suffices; and we have been informed, through Muslim ibn Khalid, from Ibn Jurayj, from Sayf ibn Sulayman, from Mujahid, who said: "A man of Quraysh irrevocably divorced his wife. He passed by an old man and his son, bedouins who had arrived in the market with their merchandise. He said to the young man: is there any good in you? Then he went on, returned, repeated it, and said the like of it again; again, then he went on, returned again and repeated the like of it. He said: yes. He said: show me your hand. He took him, told him the story, and ordered him to marry her. He married her and spent the night with her; in the morning he asked permission to leave, and it was granted; and behold, he had left and divorced her. She said: by Allah, if you divorce me, I will never marry you again. He mentioned this to Umar, who summoned him and said: had you married her, she would have done such and such to you; he threatened him, summoned her first husband and said to him: hold on to her." It is also reported, from Sa'id, from Ibn Jurayj, from Mujahid, from Umar, the like of it. Sa'd ibn Salim reported from Ibn Jurayj: I was informed, on the authority of Ibn Sirin, that a woman was divorced three times by her husband, who was a poor bedouin who sat at the door of the mosque. A woman came to him and said: would you like a woman whom you marry, with whom you spend the night and whom you leave in the morning? He said: yes, and it took place. His wife said to him: in the morning they will say to you: leave her, do not do it; I remain with you as you see; go to Umar. In the morning they went to him; she said: speak to him, you are the ones who brought him. They spoke to him, he refused, and went to Umar, who said: hold on to your wife; if they suspect you, come to me. He sent for the woman who had instigated this and disciplined her. Then the man went out in the morning and evening, dressed in a garment, saying: "Praise be to Allah who clothed you, O you of the two patches, in a garment for morning and evening." Al-Shafi'i said: I heard this hadith connected through an unbroken chain from Ibn Sirin, who connected it to Umar with this same meaning (al-Umm, 3/74 and 5/80-81).
Imam Ibn Qudama (may Allah have mercy on him) said: if he marries her without a condition, but intending in himself to divorce her after a month, or when his need ends in this land, the marriage is valid according to the view of most of the scholars, except al-Awza'i, who said it is a mut'a marriage. The correct view is that there is no harm in it and his intention does not harm him; and it is not fitting for a man to intend to keep his wife confined: her confinement is if she agrees, otherwise let him divorce her (al-Mughni, 7/137). The Hanbalis, however, say: the stranger who marries a woman intending to divorce her when he departs to return to his homeland: the marriage is void, for it resembles mut'a; likewise if he forms in his heart the intention of divorcing her after such a time (al-Rawd al-Murba', 2/304; Manar al-Sabil, 2/597; Matalib Uli al-Nuha, 5/127).
The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was asked about a restless man who travels through the lands, a month or two in each city, practices withdrawal (coitus interruptus) and fears falling into sin: may he marry during his stay in that town and divorce her when he travels, giving her her right? And is the marriage valid or not? He answered: he may marry, but let him marry by an absolute marriage without conditioning a time-limit, so that if he wishes he keeps her, and if he wishes he divorces her. If he firmly resolves to divorce her at the end of his journey, that is disapproved, and the validity of the marriage is disputed in that case. If he thinks: if I travel and she pleases me, I keep her, otherwise I divorce her, that is permitted. As for conditioning the time-limit, this is the mut'a marriage, on the prohibition of which the four imams and others agreed, although a group permits it, either absolutely or for the compelled, as occurred in early Islam; the correct view is that this is abrogated, as established in the Sahih that the Prophet, after permitting mut'a in the year of the Conquest, said: "Allah has forbidden mut'a until the Day of Resurrection"; and the Qur'an forbade a man intercourse except with a wife or a slave woman, through the verse cited above (Surah al-Ma'arij, 29-31), the woman with whom one enjoys being neither among the wives nor a possession by right hand, the wives' rulings (inheritance, the waiting period of four months and ten days after death, three courses for divorce) not subsisting for her; that is why some of the early generations said that these rulings abrogated mut'a, and the elaboration of this is long and out of place here. If the term is conditioned before the contract, it is a simultaneous condition according to the sounder of the scholars' two views; likewise in the muhallil marriage. As for the case where the husband forms the intention of the term without revealing it to the woman, it is a disputed matter: Abu Hanifa and al-Shafi'i permit it, while Malik and Ahmad and others disapprove of it; just as if he formed the intention of making lawful, this belongs to what the Companions agreed to forbid, classing it among the muhallil marriage. But the muhallil marriage is more evil than the mut'a marriage: the muhallil marriage was never lawful, for the muhallil's purpose is not to marry, but to return the woman to her first divorcer; he establishes the contract in order to remove it, and this can never be legislated; unlike the one who enjoys, who has a purpose in the enjoyment. But the postponement nonetheless undermines the purpose of marriage, affection, mercy and tranquility, and places the wife in the position of a hiree; that is why the intention in the mut'a marriage is lighter than the intention in the muhallil marriage; it oscillates between the prohibitive disapproval and the disapproval of lesser degree. As for withdrawal (al-'azl), some scholars forbade it, but the madhhab of the four imams is that it is permitted with the woman's consent (Majmu' al-Fatawa, 32/107-108).
It is reported that the Prophet (peace and blessings of Allah be upon him) said: "Shall I not tell you of the borrowed billy goat? They said: yes, O Messenger of Allah. He said: it is the muhallil; may Allah curse the muhallil and the one for whom the making lawful is done" (hasan hadith, narrated by Ibn Majah, 1936). The jurists, however, differed over some of its forms: does the marriage remain valid despite its unlawfulness, or is it void because of the prohibition concerning it? This is set out in the following forms.
The muhallil marriage has forms. First form: that they condition in the marriage contract that he marry her on condition that, if he makes her lawful for the first husband through consummation, there will be no marriage between them. The jurists differed over this form. The majority of jurists, the Malikis, Shafi'is and Hanbalis, as well as Abu Yusuf among the Hanafis, hold this marriage void, because of what Ibn Abbas and Ali (may Allah be pleased with them both) reported: "The Messenger of Allah (peace and blessings of Allah be upon him) cursed the muhallil and the one for whom the making lawful is done" (sahih hadith, narrated by Abu Dawud, 2076, and Ibn Majah, 1934). And from 'Uqba ibn Amir (may Allah be pleased with him): the Messenger of Allah said: "Shall I not tell you of the borrowed billy goat? ... may Allah curse the muhallil and the one for whom the making lawful is done" (hasan hadith, narrated by Ibn Majah, 1936). And Ibn Abbas reports that the Messenger of Allah (peace and blessings of Allah be upon him) was asked about the muhallil and said: "No marriage except a marriage of desire; no marriage of deception, nor mocking the Book of Allah, by one who has not tasted the 'usayla"; a hadith declared fabricated by Ibn Hazm in al-Muhalla (10/184), reported by al-Tabarani in al-Kabir (11567).
It is a forbidden contract, whose maker and beneficiary deserve the curse and the threat: it must therefore be void, its origin being marriage to the mahrams; and once it is established as corrupt, the woman does not become lawful again for her first husband. It is also a marriage with a condition attached for a duration, so that it is more corrupt than the mut'a marriage in two respects: its duration is unknown; and its consummation is conditioned for the benefit of another, so that it is more specific in its corruption. It is a marriage in which its termination was conditioned before its end: it must therefore be void, like the one who marries her for a month, or until intercourse, or until touching (al-Ishraf 'ala nukat masa'il al-khilaf, 3/450-451, no. 1267; al-Mu'awana, 1/557-558; al-Tamhid, 13/232-235; Sharh Zarruq on the Risala, 2/658; al-Tabsira by al-Khumi, 5/2095-2096; Mukhtasar Ikhtilaf al-'Ulama, 2/323-324; al-Hawi al-Kabir, 9/332-333; Bahr al-Madhhab, 9/324-325; al-Bayan, 9/277-278; al-Najm al-Wahhaj, 7/177-179; Mughni al-Muhtaj, 4/303; Nihayat al-Muhtaj, 6/326-327; al-Dibaj, 3/251-252; al-Mughni, 7/138-139; al-Insaf, 8/161; Manar al-Sabil, 2/589).
The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) was asked about a man who had taken an oath not to take back his wife, so that she married another in order to make her lawful for the first: is this marriage valid or not? He answered: it is authenticated from the Prophet (peace and blessings of Allah be upon him) that he said: "Allah cursed the muhallil and the one for whom the making lawful is done," and: "Shall I not tell you of the borrowed billy goat? They said: yes, O Messenger of Allah. He said: it is the muhallil; may Allah curse the muhallil and the one for whom the making lawful is done." The Companions of the Messenger of Allah and the Successors in good fashion agreed on the prohibition of that, such as Umar ibn al-Khattab, Uthman ibn Affan, Ali ibn Abi Talib, Abdullah ibn Mas'ud, Abdullah ibn Abbas and Abdullah ibn Umar and others, to the point that some of them said: "They remain fornicators, even if they stay twenty years, if Allah knows from his heart that he intends to make her lawful for him." Some said: "No marriage except a marriage of desire, no marriage of deception"; some said: "Whoever deceives Allah, Allah deceives him"; some said: "We counted it as fornication in the time of the Messenger of Allah." All the imams of fatwa agreed that if the making lawful is conditioned in the contract, it is void; some gave no effect either to the prior condition or to the persistent custom, and held the contract, despite that, like the known marriage, the marriage of desire. As for the Companions, the Successors and most of the imams of fatwa, they make no difference between this custom and the wording; this is the madhhab of the people of Madina and the people of hadith, and others (Majmu' al-Fatawa, 32/154-155).
The Shafi'is say: if it is conditioned upon him in the marriage contract that he marry her in order to make her lawful for the first husband, this condition is disapproved, but the contract is valid with it, for he did not condition the separation; the ruling of his marriage, which makes her lawful for the first husband, is the same without the condition. If he remains with her, divorce from her may not be imposed on him; if he divorces her by his own choice, she becomes lawful. But if it is conditioned upon him in the contract that he marry her in order to make her lawful for the first husband and that, once he has made her lawful, there will be no marriage between them, this is a corrupt marriage, for it is a marriage for a duration; and this is more corrupt than the mut'a marriage, for it is for an unknown duration, whereas the mut'a marriage is for a known duration. Does he do it so that she becomes lawful for the first husband? There are two views. The first, which is his later view: he does not make her lawful, for the corruption of the contract has stripped him of his ruling and applied to him the ruling of doubt. The second, which is his earlier view: he makes her lawful for the first husband. The cause of her lawfulness for the first husband was disputed: Abu Ali ibn Abi Hurayra and the majority of the Baghdadis hold that the cause is that she was consummated in the name of marriage; on this basis, the ruling of intercourse in every corrupt marriage would be that of the muhallil marriage. The Basrans hold that the cause is that the Prophet (peace and blessings of Allah be upon him) applied the name of making lawful (ihtilal) to him in his prohibition; on this basis, the ruling of intercourse in other corrupt marriages does not make lawful, unlike him, being specified by this name to the exclusion of others (al-Hawi al-Kabir, 10/331).
The Hanafis, and this is the view of Abu Hanifa and Zufar, upon which the fatwa rests, hold that the muhallil marriage is valid, with prohibitive disapproval, if it carries the condition of making her lawful for the first husband. If he marries her with this condition, the woman saying "marry me and make me lawful," or the first husband saying "marry this woman and make her lawful for me," or the second saying to the woman "I marry you and make you lawful for the first," this is disapproved because of the Prophet's curse (peace and blessings be upon him) upon the muhallil and the one for whom the making lawful is done, which means the marriage with the condition of making lawful; it is disapproved because of the hadith. And she becomes lawful for the second, for the Prophet named him muhallil, that is, the establisher of lawfulness; or we say: consummation occurred within a valid marriage, for the marriage is not corrupted by the condition, and the condition of making lawful is a corrupt condition: the marriage is thus not corrupted by it, and she becomes lawful for the first. If he divorces her after consummating with her, she becomes lawful for the first according to Abu Hanifa and Zufar.
Abu Yusuf said: this marriage is corrupt, for it amounts to a time-limiting of the marriage, and time-limiting corrupts the marriage, as if he married a woman for a month; the marriage being corrupt, consummation within the corrupt marriage does not make her lawful for the first husband. Muhammad said: the marriage is valid, and she does not become lawful for the first, for he hastened what the Law delayed; he is therefore punished by the denial of his aim, as in the killing of the inheritor. Al-Kasani (may Allah have mercy on him) said: if the making lawful is conditioned by word and that he marries her for that purpose, and the condition comes from her, it is a valid marriage according to Abu Hanifa and Zufar, she becomes lawful for the first, and it is disapproved for the second as for the first. Abu Yusuf said: the second marriage is corrupt, and if he consummates with her, she does not become lawful for the first. Muhammad said: the second marriage is valid, and she does not become lawful for the first. Abu Yusuf's view: the marriage with the condition of making lawful is in the meaning of the time-limited marriage, and the condition of time-limiting in a marriage corrupts it; and a corrupt marriage does not effect the making lawful. For Muhammad: marriage is a permanent contract; the condition of making lawful is thus a hastening of what Allah the Most High delayed, for the purpose of the making lawful; the condition is void, the marriage remains valid, but the purpose is not achieved, like the one who kills his inheritor and is barred from inheritance, as we have said. For Abu Hanifa: the general texts of marriage require validity, without distinguishing between the case where the making lawful is conditioned and the case where it is not: the marriage with this condition is thus a valid marriage, falling under the statement of the Most High:
"... until she marries a husband other than him."
Surah al-Baqara, 230
the prohibition of the first husband ending once this second husband exists. The marriage with this condition is nonetheless disapproved for the second, for it is a condition contradicting the purpose of marriage, which are tranquility, procreation and chastity; this marriage rests, indeed, on rupture and on the non-permanence of the bond. And this, in our view, is the meaning of attaching the curse to the muhallil in his statement (peace and blessings be upon him): "Allah cursed the muhallil and the one for whom the making lawful is done." As for attaching the curse to the first husband, the one for whom the making lawful is done, it admits two meanings. The first: he is the cause for which the second husband contracted this marriage with the aim of separation and divorce, without attachment or realization of the purposes for which marriage was instituted; and the one who is the cause shares, through his causation, in the sin as in the reward. The second: he consummated what leads to that which sound nature finds repugnant and disapproves: the woman's return to him from the embraces of another who enjoyed her, namely the three divorces; without them this would not have occurred: he is thus cursed on account of the three divorces (Bada'i al-Sana'i, 3/187-188).
It is said in response to Abu Yusuf, who says that "time-limiting corrupts the marriage": what corrupts the marriage is explicit time-limiting; consider that every limited marriage is "limited" by divorce, death and the like, without explicit time-limiting: it is therefore not corrupted. And Muhammad's statement that he "hastened what Allah the Most High delayed" is to be set aside: hastening what Allah the Most High delayed is not conceivable, for when Allah the Most High sets a term for a thing, that term neither advances nor is delayed; once the second husband divorces her, it becomes clear that Allah the Most High delayed this marriage until that moment; that is why we say that the slain dies at his appointed term, contrary to the Mu'tazila (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-Nayyira, 4/491; al-Bahr al-Ra'iq, 4/63).
Ibn Nujaym (may Allah have mercy on him) said in al-Bahr al-Ra'iq (4/63): is this condition binding? It is stated in al-Bazzaziyya: a woman divorced (three times) married the second man on condition that he consummate with her and divorce her so that she becomes lawful for the first. The imam said: the marriage and the condition are valid, to the point that if the second refuses to divorce her, the judge compels him, and she becomes lawful for the first. This statement was transmitted in Ghayat al-Bayan from Rawdat al-Zandawsani, and refuted in Fath al-Qadir: it belongs to what is not known in the apparent transmission of the madhhab, and should be neither relied upon nor made a rule; for beyond its weak establishment, the principles of the madhhab reject it: it is beyond doubt a marriage condition that the contract does not require, and contracts in such a case divide into two kinds: that which is corrupted, like sale, and that in which the condition is void while the origin remains valid; there is no doubt that marriage is among those which are not voided by corrupt conditions; rather the condition is void and the marriage remains valid; this condition is therefore void, and he is not compelled to divorce; it is nonetheless disapproved, as precedes from the general meaning of the hadith, while what lies beyond it, the aim of making lawful, remains without disapproval.
The Hanafis further interpreted the curse reported concerning the muhallil by means other than al-Kasani's (may Allah have mercy on him), among them: the curse targets the one who conditions a fee for the making lawful. Ibn Abidin (may Allah have mercy on him) said: the curse on this interpretation is the most apparent, for it is like taking a fee for the 'asab of the billy goat, which is unlawful; and it is supported by the fact that the Prophet (peace and blessings be upon him) called the muhallil "the borrowed billy goat" (Hashiyat Ibn Abidin, 3/415).
Second form: that he marry her while conditioning in the contract that, if he makes her lawful for the first husband, he divorces her. The jurists differed over this form, which consists of marrying her such that, if he makes her lawful for the first husband, he divorces her; for example if the guardian says: "I have married my daughter to you on condition that, if you consummate with her, you divorce her," or if he says: "I marry you on condition that, if I make you lawful for the first, I divorce you," or if she says: "Marry me on condition that, if you make me lawful for the first, you divorce me." The Hanafis, according to what is adopted for fatwa among them, and the Shafi'is in the earlier view, hold that the marriage is valid and the condition void: the contract occurred absolutely, without time-limiting, and he only conditioned upon himself the divorce, which has no effect on the marriage; for if he married her on condition of not divorcing her, the marriage would be valid and he would have the right to divorce her; likewise, if he marries her on condition of divorcing her, the marriage must be valid, without his being obliged to divorce her. And because the general texts of marriage require validity, without distinguishing between the case where the making lawful is conditioned and the case where it is not, the marriage with this condition is a valid marriage, falling under the statement of the Most High: "until she marries a husband other than him" (Surah al-Baqara, 230), the prohibition ending once this second husband exists; it is nonetheless disapproved for the second, for it is a condition contradicting the purpose of marriage, which are tranquility, procreation and chastity, this marriage resting on rupture and non-permanence. Al-Kasani (may Allah have mercy on him) said: this, in our view, is the meaning of attaching the curse to the muhallil in his statement (peace and blessings be upon him): "Allah cursed the muhallil and the one for whom the making lawful is done"; and the attaching of the curse to the first husband, the one for whom the making lawful is done, admits the two meanings set out above (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-Nayyira, 4/491; al-Bahr al-Ra'iq, 4/63; Mukhtasar Ikhtilaf al-'Ulama, 2/323-324; al-Hawi al-Kabir, 9/332-333; al-Bayan, 9/278-279; al-Najm al-Wahhaj, 7/177-179; Mughni al-Muhtaj, 4/303; Nihayat al-Muhtaj, 6/326-327; al-Dibaj, 3/251-252).
The Malikis, the Shafi'is in the later view (which is the sounder), the Hanbalis and Abu Yusuf hold that the marriage is void, because of the generality of the Prophet's statement (peace and blessings of Allah be upon him): "Allah cursed the muhallil and the one for whom the making lawful is done" (hasan hadith, narrated by Ibn Majah, 1936), no distinction being made; and because with the conditioning of the divorce it is temporary, whereas marriage is that which is permanent: it is in this sense that we distinguish between conditioning not to divorce her, in which case the marriage is valid because it is permanent, and conditioning to divorce her, in which case it is not valid because it is temporary (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-Nayyira, 4/491; al-Bahr al-Ra'iq, 4/63; al-Ishraf 'ala nukat masa'il al-khilaf, 3/450-451, no. 1267; al-Mu'awana, 1/557-558; al-Tamhid, 13/232-235; Sharh Zarruq on the Risala, 2/658; al-Tabsira by al-Khumi, 5/2095-2096; Mukhtasar Ikhtilaf al-'Ulama, 2/323-324; al-Hawi al-Kabir, 9/332-333; Bahr al-Madhhab, 9/324-325; al-Bayan, 9/277-278; al-Najm al-Wahhaj, 7/177-179; Mughni al-Muhtaj, 4/303; Nihayat al-Muhtaj, 6/326-327; al-Dibaj, 3/251-252; al-Mughni, 7/138-139; al-Insaf, 8/161; Manar al-Sabil, 2/589; Majmu' al-Fatawa, 32/154-155; al-Fatawa al-Kubra, 3/106-107).
Al-Mawardi (may Allah have mercy on him) said: if he marries her on condition that, if he makes her lawful for the first husband through his consummation, he divorces her, the corruption of this contract has two views. (The sheet breaks off here; the continuation appears in the second part of this chapter.)