Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > The wali or a spouse in a state of ihram
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Eighth condition: the wali or one of the two spouses must not be in a state of ihram (consecration for hajj or 'umra). The jurists disagreed: is this absence of ihram required, or is the contract valid even in ihram?
The majority, the Malikis, the Shafi'is and the Hanbalis, forbid the muhrim from concluding a marriage contract for himself or for others during his ihram. Proof: Muslim and others report that Umar ibn Ubaydullah wanted to marry Talha ibn Umar to the daughter of Shayba ibn Jubayr; he sent for Aban ibn Uthman, commander of the hajj, who said: I heard Uthman ibn Affan say that the Messenger of Allah said:
The muhrim does not marry, is not married and does not propose.
reported by Muslim (1409)
Malik reports in al-Muwatta (773) that Tarif had married in a state of ihram and that Umar ibn al-Khattab annulled his marriage. Al-Muwatta (774): Abdullah ibn Umar used to say: "The muhrim does not marry and does not propose, neither for himself nor for others". Al-Muwatta (775): Sa'id ibn al-Musayyib, Salim ibn Abdallah and Sulayman ibn Yasar, asked about the marriage of the muhrim, said: the muhrim neither marries nor marries off; Malik adds that the muhrim may return to his wife if she is still within her waiting period from him. Sa'id ibn al-Musayyib reports that a man had married in ihram and that the people of Medina agreed to separate them (al-Bayhaqi in as-Sunan al-Kubra, 8949).
Such a marriage opens onto no lawfulness of intercourse, not even of a kiss; it therefore does not resemble the marriage of a woman in her waiting period (mu'tadda).
The Malikis: the muhrim may neither marry, nor marry off, nor propose, nor even attend a marriage; if one of the spouses, the wali or the agent is muhrim at the time of the contract, the contract is corrupted, all the more so if several are, without considering the moment of the appointment; per the hadith, and because marriage establishes the impediment of affinity by marriage (musahara) or makes the woman a wife: it must be suspended during ihram like intercourse; whatever forbids perfume forbids marriage, as the waiting period does. The muhrim may take back his wife: this is not a marriage contract but a right of marriage, not suspended by ihram, like divorce and zihar. All this concerns the specific wali; the governor and the judge may be muhrim and appoint a person free of consecration: the contract of the unconsecrated agent is valid. References: Sharh Sahih al-Bukhari (4/408-409), at-Tamhid (2/156-157), al-Istidhkar (4/117-118), 'Uyun al-Masa'il (no.
266), al-Jami' fi Masa'il al-Mudawwana (9/260), Hashiyat al-Adawi (2/97), Tafsir al-Qurtubi (3/222), Sharh Ibn Naji at-Tanukhi ala Matn ar-Risala (2/41).
The Shafi'is: the ihram of one of the two contracting parties, wali even if governor, husband, agent for one of the two, or wife, under a ritual even if invalid, prevents the validity of the marriage: the muhrim is deprived of capacity in the marriage contract, independently, as wali or as agent, for all who appear in the offer or the acceptance, in hajj or in 'umra, valid or invalid ritual, per the hadith of Muslim (1409). Anas reports: the Messenger of Allah said: "The muhrim does not marry and does not give in marriage" (ad-Daraqutni, 3695). On the sounder view, ihram does not transfer guardianship to the more distant relative: it does not remove it, since rushd and deliberation remain; it forbids marriage as the ihram of the husband or wife does: it is therefore the sultan who marries off when the wali is in ihram, not the more distant relative. The other opinion: transfer to the more distant relative like madness, preferred in al-Matalib.
Just as the marriage of the muhrim is invalid, his authorization of his freed slave for marriage is invalid, as is the authorization of the muhrima to her wali, on the sounder view in its entirety. The woman may be brought to the muhrim whom he married before his ihram, and the muhrima may be brought to her husband, unconsecrated or muhrim. Marriage may be witnessed by a muhrim, for he is neither contracting party nor concerned, but it is better that he not attend; the taking back by the muhrim wali is valid, for it is a continuation like abstinence in an ongoing marriage. If the wali or the husband enters ihram after appointing someone and the unconsecrated agent concludes, the contract is invalid: the appointer no longer owns the act, and the agent in marriage is a pure ambassador, as if the contracting party were the appointer; the agent is not deposed by the ihram of his appointer and concludes after the consecration is lifted.
If the agent concludes and the spouses disagree on the date, before or after the ihram, the claimant of validity is made to swear, the appearance of contracts being validity. The muhrim may appoint an unconsecrated person for his marriage, and the muhrima may authorize her wali: this is valid, whether each says: marry after the consecration is lifted, or without restriction, for ihram prevents only the conclusion, not the authorization; if the conclusion during ihram is made a condition, appointment and authorization are invalid. The unconsecrated person may appoint a muhrim to appoint an unconsecrated person: valid, for he is a pure ambassador. There is no doubt that the agent of the praying man marries, unlike the agent of the muhrim: the capacity of the muhrim is impaired, that of the one praying is sound, so much so that if he marries during his prayer by forgetfulness, marriage and prayer are both valid; the muhrim who would marry while forgetting his ihram: the marriage is invalid.
References: al-Hawi al-Kabir (4/124, 126), Rawdat at-Talibin (4/705-706), an-Najm al-Wahhaj (7/93, 95), Mughni al-Muhtaj (4/261, 263), Tuhfat al-Muhtaj (8/611, 613), Nihayat al-Muhtaj (6/278-279).
An-Nawawi reports in Sharh Sahih Muslim (9/194-195) that Muslim mentions the disagreement: did the Prophet marry Maymuna in a state of ihram or unconsecrated? Malik, al-Shafi'i, Ahmad and the mass of scholars among the companions and after them: the marriage of the muhrim is not valid, on the hadiths of the chapter. Abu Hanifa and the Kufans: it is valid, on the account of Maymuna.
The majority answer in four points: the soundest is that the Prophet married her unconsecrated, as reported by most of the companions; only Ibn Abbas reports the ihram, while Maymuna, Abu Rafi' and others report the unconsecrated state: they are better informed of the affair and more precise than he; or his statement refers to the Haram (the sacred precinct), called muhrim in common usage, as in the famous verse: they killed Ibn Affan the caliph as a muhrim, meaning in the haram of Medina; or the conflict between word and deed is settled in favor of the word among the specialists of legal theory; or finally, for a group of Shafi'is, the Prophet alone had the right to marry in a state of ihram, a privilege specific to him, the second view holding it forbidden for him like everyone else.
The meaning of "and he does not marry off": he does not marry off a woman by guardianship or agency; the apparent scope of this generality is that there is no difference between specific guardianship (father, brother, uncle) and general guardianship (sultan, judge, deputy): this is the correct view with an-Nawawi and the majority of his companions; some Shafi'is allow the muhrim to marry off by the general guardianship, for it permits what the specific one does not, as the Muslim marries off the dhimmi woman only by the general guardianship. The prohibition is prohibitive in force: if the muhrim concludes, the contract is not formed, whether he is husband, wife, or contracting party by guardianship or agency; even if the spouses and the wali are unconsecrated, if they appoint a muhrim for the contract, it is not formed.
Ibn Qudama: the muhrim does not marry and does not marry off; if he does, the marriage is invalid; the same applies to the muhrima; it is reported from Umar, his son and Zayd ibn Thabit, and it is the opinion of Sa'id ibn al-Musayyib, Sulayman ibn Yasar, az-Zuhri, al-Awza'i, Malik and al-Shafi'i. Ibn Abbas allowed it, and it is the opinion of Abu Hanifa, on his hadith reported by the two collections: the Prophet married Maymuna in a state of ihram; and because it is a contract granting enjoyment, which ihram does not forbid, like buying slave women. Reply: the hadith of Aban ibn Uthman from Uthman, reported by Muslim; and ihram forbids perfume, so it forbids marriage as the waiting period does.
The counter-report: Yazid ibn al-Asamm reports from Maymuna that the Prophet married her unconsecrated, consummated unconsecrated and that she died at Sarif, reported by Abu Dawud and al-Athram; and Abu Rafi': the Messenger of Allah married her unconsecrated and consummated unconsecrated, I was the messenger between the two of them, reported by at-Tirmidhi who judged it hasan; Maymuna knows her own affair best and Abu Rafi' was the intermediary: both take precedence over Ibn Abbas, who was then a child and did not grasp the reality of things, and his statement was even contested. Sa'id ibn al-Musayyib: Ibn Abbas erred, the Prophet married her only unconsecrated; his statement may refer to the sacred month or the sacred place. Another reading: he married her unconsecrated and made the marriage public while in ihram. If both reports were sound, ours would take precedence: the Prophet's word and deed, the word being firmer; and the marriage contract differs from buying a slave woman by the waiting period, restitution, difference of religion and the foster-sibling impediment.
Chapter: the marriage of the muhrim, of the muhrim who marries off, of the muhrima married is invalid, whether all are muhrim or part, for it is forbidden; Ahmad also said: if the muhrim has married, I do not annul the marriage; some Hanbalis infer from this that if only the wali or only the agent is muhrim, the marriage is not corrupted, but the first madhhab is to invalidate it, Ahmad's words being read as a refusal to annul given the dispute on the subject; the qadi distinguishes the two cases by a divorce, as with every disputed marriage: if the woman married without a wali, he cannot marry her to another before she is divorced, for marrying her without divorce would lead to two husbands each holding her lawful. If an unconsecrated person concludes for a muhrim, as agent or wali, or on a muhrima, it is invalid, within the general scope of the hadith: when his agent has married for him, he has married.
The qadi reports two narrations on the muhrim as wali for another: invalid, the choice of al-Khiraqi; or valid, the choice of Abu Bakr: marriage is forbidden to the muhrim because it leads to the intercourse that corrupts the hajj, and that is not obtained by being wali for another; the first is sounder: the general scope of the report, and a contract invalid from the muhrim is invalid, like buying game.
The Hanafis allow the muhrim to conclude marriage for himself and for others, to appoint and be appointed, on the hadith of Muslim (1410): Ibn Abbas reports that the Prophet married Maymuna in a state of ihram; but he cannot consummate before being unconsecrated. References: 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).
At-Tahawi sets out the Hanafi reasoning: the muhrim cannot have intercourse; so it was assumed that his marriage contract would be the same. Yet the scholars agree that the muhrim may buy a slave woman without touching her until he is unconsecrated, buy perfume or a garment for later: the prohibition of intercourse therefore does not prevent him from the contract of ownership. It is also seen that the muhrim who hunts must give up the game, being ordered to release it, but he is not ordered to divorce the wife who is with him: he is ordered to keep and protect her; the woman is thus like the garment and the perfume, not like the game: her marriage contract is like the purchase contract, with enjoyment after the consecration is lifted. Objection: marriage with a foster-sister is seen to be invalid although her purchase is valid: purchase may be made over what intercourse is forbidden with, not marriage; yet intercourse with the muhrima is forbidden to the muhrim.
Reply: the faster and the one in retreat cannot have intercourse, and it is agreed that this does not prevent their contract: the prohibition is devotional, like that of the menstruating woman who may contract her marriage; likewise the prohibition of intercourse by ihram. Foster-relationship occurring upon a marriage annuls it, and ihram occurring upon a marriage does not annul it: it therefore does not prevent contracting either; the prohibition of intercourse by ihram equals that by fasting: if that of fasting does not prevent the contract, that of ihram does not either. This is the opinion of Abu Hanifa, Abu Yusuf and Muhammad. Reference: Sharh Ma'ani al-Athar (2/272).
Ibn Rushd: the scholars disagreed about the marriage of the muhrim. Malik, al-Shafi'i, al-Layth, al-Awza'i and Ahmad: the muhrim neither marries nor marries off; if he does, the marriage is invalid: this is the opinion of Umar ibn al-Khattab, Ali, Ibn Umar and Zayd ibn Thabit. Abu Hanifa: there is no harm in it. The cause of their disagreement is the contradiction of the reports: the hadith of Ibn Abbas, firmly transmitted and reported by the people of the sahih collections, against the many reports from Maymuna: he married her unconsecrated, by the ways of Abu Rafi', Sulayman ibn Yasar her mawla and Yazid ibn al-Asamm; Malik also reports the hadith of Uthman ibn Affan: the muhrim does not marry, does not marry off and does not propose.
Whoever gives these hadiths precedence over that of Ibn Abbas: forbidden; whoever gives precedence to Ibn Abbas or reconciles by reading the prohibition as mere disapproval: permitted; this comes back to the conflict between word and deed, and the way to reconcile is to give precedence to the word. Reference: Bidayat al-Mujtahid (2/34-35).
Ibn Taymiyya strengthens the demonstration: beyond the hadith of Ibn Abbas reported by the collections, al-Bukhari transmits in one version: he consummated with her while unconsecrated and she died at Sarif; and in a suspended comment: he married Maymuna during the umra of fulfillment while unconsecrated and she died at Sarif; an-Nasa'i: she entrusted her affair to al-Abbas who married her to him; 'Ikrima reports from Ibn Abbas: the two were in ihram (reported by Ahmad); ash-Sha'bi, 'Ata' and 'Ikrima: he married her in a state of ihram. Ibn Taymiyya answers that the unconsecrated version has many reporters: Maymuna herself (reported by Muslim and Ibn Majah: she was his aunt), Ahmad, at-Tirmidhi and al-Barqani through Yazid ibn al-Asamm, Abu Dawud, and Abu Rafi' reported by Ahmad and at-Tirmidhi who judged it hasan.
He counts seven points: Maymuna is the very person married and the best informed; Abu Rafi' was the messenger of the contract; Ibn Abbas was about ten years old and did not grasp the details; the early generations criticized this report: Sa'id ibn al-Musayyib said Ibn Abbas erred, Ahmad said this hadith is an error, Umar separated a similar case in Medina without contest, and Maymun ibn Mihran, asked by Umar ibn Abd al-Aziz, reported from Yazid ibn al-Asamm that he had married her unconsecrated, as az-Zuhri, Abu Bakr ibn Abd ar-Rahman, Sulayman ibn Yasar (her mawla) and the majority of the scholars of Medina said, and Safiyya bint Shayba, an old woman, answered: no, by Allah, he married her while both were unconsecrated (reported by Ibn Abi Khaythama); the unconsecrated version has many reporters against Ibn Abbas alone, as Ibn Abd al-Barr says: no companion other than Ibn Abbas is reported to have said it; the version of 'Ikrima, both in ihram with the contract at Sarif, is a manifest error: Maymuna was in Mecca, separated from her husband, and did not accompany him; it was Ja'far who was sent to ask for her hand; the Prophet married her during the umra of fulfillment and brought her back from Mecca, entering ihram from Dhu al-Hulayfa:
from this comes the confusion of those who believed him muhrim; Malik reports from Rabi'a from Sulayman ibn Yasar that the Prophet sent his mawla Abu Rafi' and a man of the ansar, who married him to Maymuna while he was in Medina before his departure, and al-Humaydi transmits: he sent al-Abbas and Abu Rafi', who married him to her at Sarif while unconsecrated though he was in Medina; this report, though mursal, is strengthened because Sulayman was her mawla and because he himself transmits the hadith of Abu Rafi' (Sharh al-'Umda, 3/185, 199). References: Majmu' al-Fatawa (32/187 and following), Ahkam Ahl adh-Dhimma (1/302).
Third required absence: the absence of an impediment of kinship (nasab), of breastfeeding (rada'a) or of affinity by marriage (musahara): the marriage of a woman forbidden through one of these bonds is not valid, dealt with in detail in the chapter on forbidden women; likewise the woman whose union with a wife is forbidden: two sisters, a woman and her paternal aunt or her maternal aunt.
Fourth absence: no coercion. The jurists disagreed about the marriage of the coerced man and the coerced woman: valid or not?
The Hanafis validate it: consent is not a condition of marriage; in our view, whatever is valid with a joke is valid under coercion, for what is valid with a joke does not admit annulment (faskh), and what does not admit annulment is not affected by coercion. If the named dowry equals the comparable dowry (mahr al-mithl, the dowry of similar relatives) or less: the marriage stands, with nothing claimable from the coercer, for it is the equivalent of what he took from her property; if it exceeds the comparable dowry: the excess is void, the equivalence is due, as if they had named that amount, down to being halved by divorce before consummation. If it is she who coerced the man into marrying her: nothing is owed to her from him, the coercion coming from her side, the marriage then standing in the status of the void without being void in the proper sense. References: Bada'i' as-Sana'i' (2/310), al-Mabsut (5/94), al-Jawhara an-Nayyira (6/248), ad-Durr al-Mukhtar (6/139), Hashiyat Ibn Abidin (3/21).
The majority, the Malikis, the Shafi'is and the Hanbalis: neither the marriage of the coerced man nor that of the coerced woman is valid. Al-Qurtubi reports from Sahnun: our companions agree to invalidate the marriage of the coerced man and the coerced woman; one does not persist in it, for it was not formed. Muhammad ibn Sahnun: the people of Iraq allowed it: if a man is coerced into marrying a woman for ten thousand dirhams while the comparable dowry is one thousand, the marriage stands and only one thousand is due, the excess is void; just as they void the excess, they must void the marriage concluded under coercion: this is contrary to the firm sunna in the hadith of Khansa' bint Khidham al-Ansariyya, whose father-contracted marriage was annulled by the Prophet, and to the Prophet's command to seek the consent of virgins.
Al-Qurtubi continues: if the coerced man consummates while he was not coerced over intercourse nor over consent to the marriage, the marriage binds him according to the named dowry and the punishment (hadd) is averted from him; if he says: I consummated without my consent to the marriage, he undergoes the hadd and owes the named dowry, as a claimant of the invalidation of the named dowry; the woman is punished if she goes to intercourse knowing he was coerced into the marriage. As for the woman coerced into marriage and intercourse: no hadd upon her, she has the named dowry, and whoever consummated knowing it is punished, said Sahnun. References: Tafsir al-Qurtubi (10/185), Sharh Sahih al-Bukhari of Ibn Batal (8/299-300).
Ad-Dasuqi (Maliki): if someone is coerced into marriage and the coercion then ceases, the contract must be annulled; his ratification has no weight by consensus, for the contract was never formed; had it been formed, it would be void: a marriage with an option attached.
Fifth absence: illness. The jurists disagreed about the marriage of the sick person: valid or not?
The Malikis invalidate the marriage of the sick man like that of the sick woman, and of both together: whether it is a feared illness (a mortal illness) by consensus, or a non-feared one on the mashhur; whether the discerning heir authorized it or not on the mashhur, for the authorizing heir may die before the sick man and another heir remains: the authorization counts as if it did not exist; and on the sounder mashhur, whether he needs to marry or not, because of the prohibition of introducing an heir; only consummation is not forbidden to the sick man, for it does not always produce a pregnancy. On one opinion, which al-Jawahir says is the mashhur, this prohibition is restricted to the absence of need for marriage or for someone to attend to and serve him in his illness: if he has such need, marriage is permitted to him even if the heir prevents it.
Assimilated to the sick person: every person interdicted in property present at the battle line, the one sentenced to amputation, the one imprisoned for execution, and the woman in her sixth month of pregnancy and beyond: irrevocably divorced without reaching three repudiations, the one who wants to contract a marriage on her after six months of pregnancy and beyond cannot do so, nor can she accept, for she is forbidden in that state.
The woman whose marriage was annulled after consummation with a named dowry: if she marries in her illness and the husband consummates, the named dowry is paid to her from his capital, small or great even if prohibitive; the death of the husband equals consummation: it is paid from his capital; likewise his death before her and before the annulment, with no inheritance for the survivor.
The sick man who marries during a feared illness, consummates without the marriage being annulled, then dies: she takes from the third of his property the lesser of the named dowry and the comparable dowry; if the third is less than both, she takes only the third: the sick man therefore owes the least of three things: the third, the named dowry and the comparable dowry. Sometimes he recovers: no annulment, and she takes the named dowry from his capital. As soon as it is discovered, the marriage is annulled, even after consummation, even if she is menstruating; annulled before consummation: nothing is owed by him, unless he recovers: then no annulment. References: 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), ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi (3/101-102), Tahrir al-Mukhtasar (2/648, 651).
The majority, the Hanafis, the Shafi'is and the Hanbalis: the marriage of the sick man is valid, even in mortal illness; only the part exceeding the comparable dowry is invalid, and her dowry is a debt taken from his whole estate like other debts. Likewise the sick woman who marries a healthy man: her marriage is valid and the husband inherits from her; her dowry is owed to him: if it equals the comparable dowry, it is due, along with any excess; if she married him for less than the comparable dowry as a favor, the shortfall is a bequest (wasiyya) in his favor: returned if he is an heir, taken from the third if the husband is not an heir.
Proof: surah an-Nisa 3, without distinction between healthy and sick.
Marry those that please you among the women, two, three or four.
Surah an-Nisa, 3
Mu'adh ibn Jabal said in his illness: "Marry me, so that I do not meet Allah unmarried" (reported by Mu'adh ibn Jabal); Ibn Mas'ud: "If only ten days of my term remained, I would love nothing more than to have a wife" (reported by Ibn Mas'ud); Hisham ibn Urwa reports from his father that az-Zubayr, visiting the sick Qudama, saw a slave woman at his place; Qudama said: marry me to her; what would you do with her in this state? If I live, I will connect my lineage to az-Zubayr; if I die, her children are the most entitled to inherit me. And because whoever is not forbidden the enjoyment of slave women is not forbidden the marriage of free women either, like the healthy man; because it is a bed from which the healthy man is not withheld; because it is a contract that illness does not forbid, like selling and buying; and because its contract is never without a motive of need or desire.
First condition specific to the husband: his Islam when the wife is a Muslim.
The people of knowledge agree that the Islam of the man is a condition for the validity of marriage when the wife is a Muslim: the husband cannot be a non-Muslim, a Person of the Book (kitabi) or an idolater, by consensus. Proof: surah al-Mumtahana 10: if you know them to be believers, do not return them to the unbelievers: they are not lawful for them, nor are they lawful for the women; and surah al-Baqara 221: do not marry the polytheists until they believe; al-'Izz ibn Abd as-Salam: there is consensus on its general scope (Tafsir al-'Izz ibn Abd as-Salam, 1/213).
Ibn Abd al-Barr: the scholars agree that the Muslim woman may not be the wife of an unbeliever (at-Tamhid, 12/21); the Qur'an, the sunna and consensus forbid Muslim women to the unbelievers (at-Tamhid, 12/24). Al-Shafi'i: Allah forbade the unbelievers the women of the believers, not permitting a single one of them, and the people of knowledge did not disagree on this (al-Umm, 5/153); the Muslim adulteress is not lawful to the idolater nor to the People of the Book, and the idolatrous adulteress is not lawful to a Muslim (al-Umm, 5/148); the surah was revealed to forbid the women of the believers to the polytheists, and Muslim women are forbidden to them by the Qur'an in every case, as are the polytheists of the People of the Book, because of the severing of alliance, and the chaste women among the believing women and the People of the Book are lawful (al-Umm, 5/6). Ibn al-Mundhir: they agree that the contract of the unbeliever over the marriage of the Muslim woman is void (al-Ishraf, 5/253).
Al-Qurtubi: the community agrees that the polytheist never touches the believing woman, for it is an outrage upon Islam (Tafsir al-Qurtubi, 3/72).
Al-Kasani (Hanafi) explains: marrying the believing woman to the unbeliever raises the fear that she fall into unbelief: the husband calls her to his religion, and women follow men in their deeds and imitate them in their religion; the end of the verse says: those call to the Fire; the call to unbelief is a call to the Fire, unbelief deserving the Fire; the marriage of the unbeliever is thus a cause of calling to the forbidden, hence forbidden; the text addresses the polytheists, but the cause, the call to the Fire, embraces all unbelief: the Muslim woman is no more lawful to the People of the Book than to the idolater or the Magian; the Law has cut off the authority of the unbelievers over the believers (an-Nisa 141): if their marriage were permitted, the unbeliever would have a way over her, which is impossible. Reference: Bada'i' as-Sana'i' (2/271-272). Al-Mawardi: the Muslim woman is never lawful to an unbeliever, Person of the Book or idolater. Reference: al-Hawi al-Kabir (9/255).
Ibn Qudama: consensus is established on the prohibition of marrying Muslim women to the unbelievers (al-Mughni, 7/118); the Muslim woman may not marry an unbeliever in any case, Person of the Book or not, per al-Baqara 221 and al-Mumtahana 10 (al-Kafi, 3/47). Shams ad-Din Ibn Qudama al-Maqdisi: no disagreement is known on this (ash-Sharh al-Kabir, 7/507). Ibn Taymiyya: the Muslims agree that the unbeliever does not inherit the Muslim and does not marry the Muslim woman (Majmu' al-Fatawa, 32/36). Ibn al-Qayyim: the foundations indicate the prohibition of marrying, as an original marriage, an unbelieving woman other than the two Women of the Book, and this is a truth without disagreement in the community (I'lam al-Muwaqqi'in, 2/353).
Second condition specific to the husband: not already having four wives. The people of knowledge agree that whoever has four wives and divorces one with a revocable divorce (raj'i) may not marry a fifth before her waiting period ('idda) ends, just as one who divorces revocably may not marry his wife's sister before the end of the period. Ibn al-Mundhir: they agree that the man who divorces with a divorce leaving him the taking back (raj'a) may not marry her sister nor a fourth other than her before the waiting period of the divorcée ends (al-Ijma', p. 371).
Disagreement about one who divorces irrevocably (bayn): may he marry while the irrevocably divorced one is still in her period? The Malikis and the Shafi'is: whoever has four wives and irrevocably divorces one may marry another, even if the first is still in her period. The Shafi'is specify: the sister and the likes, such as the paternal aunt, and the fifth, become lawful during the waiting period of the irrevocably divorced one, for she is foreign to him; the revocably divorced one remains like a wife: no other is lawful to him before the end of the period; the same applies to the woman who has left Islam and to the apostate woman after consummation, as long as the period lasts. If the man claims she informed him that her period had ended and she denies it while its end is possible: the marriage of her sister and of a fourth is permitted to him on the strength of his claim, without that claim being accepted for dropping her maintenance.
Reference: Mughni al-Muhtaj (4/301).
The Malikis add: whoever has contracted a marriage on a woman may not marry her sister or her paternal aunt while the first is within his marital bond ('isma), except by separation: through khul' (dissolution with compensation), through three repudiations, through a single one without consummation, or through the end of the period if the divorce was revocable. As for the period of the irrevocably divorced one: she is bound to guard her chastity; if she claims retention of blood (absence of menses), she is believed on oath for maintenance until a year has passed; if she then claims to feel movement, the women examine her: if they believe her, her sister for instance remains forbidden; otherwise the husband does not wait until the longest pregnancy. Reference: Sharh Mukhtasar Khalil (3/212).
The Hanafis and the Hanbalis: neither marriage nor the sister before the end of the period. Al-Kasani: whoever has four wives without having consummated with them and says: each of you is thrice divorced, then marries another: it is permitted; if he has consummated with them and then marries another: not permitted (Bada'i' as-Sana'i', 3/226). The Hanbalis: whoever divorces one of his four: marrying a replacement is forbidden to him until the end of the period, revocable by consensus, irrevocable or by annulment, unlike her death, stated on both; if he says: she informed me that her period had ended, and she belies him: her sister and the replacement are lawful to him on the sounder view. References: al-Furu' (5/155), al-Mubdi' (7/68), al-Insaf (8/131), Matalib Uli an-Nuha (5/108).
Malik reports in al-Muwatta (2/548), from Rabi'a ibn Abi Abd ar-Rahman: al-Qasim ibn Muhammad and Urwa ibn az-Zubayr held regarding the man who has four wives and definitively repudiates one that he may marry if he wishes, without waiting for the end of the period. Ibn Abd al-Barr presents the question in al-Istidhkar (5/540-541): Malik, al-Layth ibn Sa'd, al-Awza'i, Uthman al-Batti and al-Shafi'i: the marriage of the fifth and of the sister is permitted as soon as the divorcée is definitively separated, without regard to the period; this is also the opinion of Ibn Shihab, al-Hasan, 'Ata' and Salim ibn Abdallah (with disagreement in the transmission), the sound view of Urwa without disagreement, and the opinion of Uthman ibn Affan who told a man of Thaqif: if you repudiate your wife three times, she no longer inherits you nor you her, so marry if you wish. Al-Awza'i: men of science saw no harm in it (reported by Abd ar-Razzaq, from Ma'mar, from az-Zuhri).
Ibn Jurayj reports from 'Ata': he is the most distant of people from her once her repudiation is made definitive, she no longer inherits him nor he her, and he may marry before her period ends. Ath-Thawri, Abu Hanifa and his companions, and al-Hasan ibn Hayy: one does not marry the woman during the waiting period of her irrevocably divorced sister, nor the fifth during the period of the definitively repudiated one; al-Hasan ibn Hayy specifies: I prefer that one not marry; ath-Thawri and Abu Hanifa: no marriage during the period in any case; their opinion is reported from Ali ibn Abi Talib and Zayd ibn Thabit, from Ubayda as-Salmani, Umar ibn Abd al-Aziz, Mujahid and Ibrahim. Both opinions are reported from Sa'id ibn al-Musayyib, al-Hasan, 'Ata', al-Qasim and Salim. Ma'mar, ath-Thawri and Ibn Uyayna report from Abd al-Karim al-Jazari, from Sa'id ibn al-Musayyib: he does not marry before the period of the one he divorced ends; Sufyan, from Abu az-Zinad, from Sulayman ibn Yasar, from Zayd ibn Thabit: the same.
Abd ar-Razzaq, Abd ar-Rahman ibn Mahdi, Abu Nu'aym and Muhammad ibn Kathir report from ath-Thawri, from Abu Hashim al-Wasiti: I asked Ibrahim: does the man have a waiting period? Yes, two and three: the two sisters, one of whom he divorces, and the four, one of whom he divorces. And if the wife of a man, having a child from another bed, dies, the husband may not approach her before knowing whether she is pregnant, in order to inherit from the child or not. Abu Bakr reports: Jarir, from Mughira, from Ibrahim: if a man has four wives and repudiates one three times, he does not marry a fifth; if she dies, let him marry from that very day: death raises no fear of confusion of lineage, and the meeting of the two waters (the mixing of seeds) is not considered there.
Ibn Abd al-Barr concludes: there is no disagreement among the scholars about one who divorces revocably: no other woman is lawful to him before the end of the period, for she remains like a wife for maintenance, lodging, inheritance, divorce, the oath of abstinence (ila), zihar and mutual imprecation (li'an). References: al-Istidhkar (5/540-541), Sharh az-Zarqani (3/212).
Al-Qurtubi (Tafsir, 5/119): consensus of the scholars for the revocable divorce; disagreement for the irrevocable one: a group forbids the sister and a fourth until the end of the period, reported from Ali and Zayd ibn Thabit, the opinion of Mujahid, 'Ata' ibn Abi Rabah, an-Nakha'i, Sufyan ath-Thawri, Ahmad ibn Hanbal and the partisans of reasoned opinion; a group permits the sister and a fourth, reported from 'Ata', whose firmer narration this is, and also from Zayd ibn Thabit, the opinion of Sa'id ibn al-Musayyib, al-Hasan, al-Qasim, Urwa ibn az-Zubayr, Ibn Abi Layla, al-Shafi'i, Abu Thawr and Abu Ubayd; Ibn al-Mundhir: I reckon it is only the opinion of Malik, and it is ours. In the Masa'il al-Imam Ahmad wa-Ibn Rahawayh of Ishaq ibn Mansur al-Kawsaj (1/380): the man who has four wives and divorces one does not marry a fifth before the waiting period of the divorcée ends; if she dies, he marries; Ishaq: it is as he said.
For the reader: the marriage contract is concluded by a Muslim wali, free, of sound judgment, upright and male, outside a state of ihram; coercion voids the contract in three schools out of four; the Maliki school invalidates the marriage of the mortally sick person, even with the heir's consent; the Muslim woman marries only a Muslim, and the Muslim man marries only a Muslim woman or a Woman of the Book, within the limit of four wives.