Laws of Religion

Laws of Islam Concerning Women and Men

 

Finding a Spouse

 

People Forbidden as Spouses or Enslaved Concubines

 

People Forbidden as Spouses or Enslaved Concubines

From Islamic Jurisprudence (fiqh/sharia§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

 

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People forbidden as spouses or enslaved concubines (jurisprudence/fiqh/sharia). The scholars* agree that a man is permitted to have sexual intercourse with his wife or with a slave he owns that he is not married to (a concubine).[1] Al-Shafiʽi explains that a man is permitted to have sexual intercourse with his slave woman by virtue of possession. This is the only permitted sexual partner other than his wife.[2] The waiting period required before having sexual intercourse with a captured enslaved woman is one menstrual cycle.[3]

 

Slaves and free women may marry slaves.[4] Malik, Abu Hanifa, and al-Shafiʽi agree that a free man may marry a female slave only if he lacks the bridal payment (mahr**) needed for a free woman or to prevent him from sinning that would result from sexual desire. Some other jurists say that such a marriage is permitted without restriction.[5]

 

It is forbidden to marry or take as an enslaved concubine specific close relatives (mahram) by descent or by marriage.[6] Women forbidden as wives or enslaved concubines by blood relationship are one’s mother, grandmothers (and upwards), daughters, children’s female descendants, sisters, nieces and nephews and their female descendants, aunts and great-aunts (and upwards).[7] Women forbidden as wives or enslaved concubines due to a relationship by marriage are one’s wife’s mother and grandmother, the wives of his father or father’s father (etc.) and the wives of one’s children and their descendants.[8]

 

Al-Shafiʽi says that if a man has sexual intercourse with his female slave and later learns that she is his sister, then no legal transgression has occurred since he was unaware of their relationship at the time of intercourse.[9]

 

It is forbidden to be married to two sisters at the same time[10] or to a woman and her aunt.[11] Malik, Abu Hanifa, and al-Shafiʽi agree that it is forbidden to take two sisters who are slaves as concubines, though other scholars disagree.[12] Malik and Abu Hanifa say it is forbidden for one sister to be a man’s wife and the other sister his enslaved concubine, while al-Shafiʽi says this is permitted.[13]

 

A step-daughter is forbidden for marriage only to a man who has had sexual relations with her mother.[14] Al-Shafiʽi says that only sexual intercourse with one’s wife makes her daughter prohibited for marriage. Abu Hanifa says the prohibition occurs upon sexual intercourse, fondling or looking at the wife’s sex organs, while Malik says it happens upon sexual intercourse, fondling or just looking lustfully at any part of her body.[15] Abu Hanifa says that unlawful sexual intercourse (zina) with any woman makes her daughter and her mother prohibited for marriage, while al-Shafiʽi says that zina has no such effect.[16]

 

A woman who suckles a baby becomes, for purposes of marriage prohibitions, like the mother of that baby.  She, her parents, her children, her husband, and other relatives, become forbidden in marriage to the baby and the baby’s relatives as if she were the mother of the baby. Malik, Abu Hanifa and al-Shafiʽi agree about the husband, though some other jurists disagree.[17]

 

Reliance of the Traveller (Shafiʽi school) explains that breast-feeding a baby only results in subsequent marriage prohibitions of the baby to the woman’s relatives if the breast-feeding woman is at least nine years old, the baby is less than two years old and the breast-feeding occurs on at least five separate occasions.[18] Reliance of the Traveller says that the prohibition of marriage after suckling applies to the baby and its descendants but not its parents, their parents or other ascendants. The prohibition does apply to the breast-feeding woman’s ascendants, her descendants or her brothers or sisters, as she has become the baby’s mother.[19] If the milk of the breast-feeding woman exists as a result of a pregnancy resulting from sexual intercourse with her husband, then her husband is also prohibited from marrying the baby and its descendants. Also, in this case, the baby may not marry the nursing woman’s husband or his ascendants, descendants, brothers or sisters since the husband has become the nursing baby’s father.[20] Those who have become unmarriageable kin through breast-feeding are, as a result, permitted to look at each other of the opposite sex, just as they can with their biological relatives of the opposite sex.[21]

 

The scholars agree that it is forbidden to propose marriage to a woman who has a pending marriage proposal already.[22] Reliance of the Traveller explains that it is forbidden to propose marriage to a woman who has accepted a proposal of marriage from another man unless that man gives his permission. If the proposal of marriage has not been accepted, then it is permitted to propose marriage to the woman.[23]

 

Reliance of the Traveller says that a marriage by "trading daughters" or "trading sisters," by which the guardians of the brides thus avoid paying the bridal payments (mahr), is invalid.[24]

 

It is forbidden to marry an idol-worshipping woman[25] or an apostate from Islam.[26] Reliance of the Traveller (Shafiʽi school) says it is also forbidden to marry a Zoroastrian woman or a woman with one Jewish or Christian parent if the other parent is a Zoroastrian. A 20th century commentator cited in Reliance of the Traveller says that a marriage of a Muslim man is valid only if his wife is Muslim, Jewish or Christian. A Muslim woman can only marry a Muslim man.[27]

 

After an irrevocable divorce, the couple may not be remarried unless the woman first marries another man and has intercourse with him, followed either by divorce or death of the second husband. Most scholars agree that only intercourse (insertion of the head of his erect penis into her vagina) is required, not ejaculation. Malik says that remarriage to the first husband is permitted only if intercourse with the second husband is legally permitted (not during menstruation or at other prohibited time), the second husband is not a minor and the second husband is not marrying the woman for the purpose of permitted the first husband to remarry her.  Also second marriage by a dhimmi woman to a dhimmi man does not permit remarriage of the woman to the first, Muslim husband. Al-Shafiʽi and Abu Hanafa do not impose such conditions on remarriage to the first husband.[28]

 

Reliance of the Traveller says that if a divorced woman marries another man and the marriage agreement stipulates that the reason for the marriage is to permit her to then remarry her original husband, then the marriage is legally invalid.[29] Imam Dhahabi, an important 13th-14th century Shafi‛i scholar quoted in the English translation of Reliance of the Traveller, says that participating in such a marriage is an enormity§§.[30]

 

Malik, al-Shafiʽi and the Shafiʽi school say that a man can never remarry a woman who was divorced from him following his public accusation of her adultery (li’an). Abu Hanifa says that such remarriage is permitted if the husband recants his accusation and is punished for making the false accusation.[31]

 

It is forbidden to marry a woman during her waiting period (iddah) following divorce or the death of her husband.[32] According to Reliance of the Traveller, it is also forbidden to make a direct proposal of marriage during her waiting period following divorce or the death of her husband.[33] If a woman is married during her waiting period and the marriage is consummated, the couple is to be separated. Malik says they may never marry again while al-Shafiʽi and Abu Hanifa say they may be remarried after her waiting period is over.[34]

 

 

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*Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

**Mahr is a payment given by the groom to the bride upon their marriage.

 

§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

 

§§Enormity:  In Keller’s English translation of Reliance of the Traveller, Imam Dhahabi (an important 13th-14th century Shafi‛i scholar) is quoted as listing certain sins as “enormities,” meaning that there is a threat of punishment after death mentioned in the Qur’an or hadiths, a legal penalty is prescribed or the transgressor is accursed by Allah (God) or Muhammad.[35] These “enormities” are the most serious sins and, according to the Qur’an[36]; if they are avoided then a person will be caused by Allah to enter an honorable gate (meaning reward in Paradise after death). According to Imam Dhahabi, committing an “enormity” without knowing that it is unlawful eliminates the guilt, except for denying those religious tenets that are universally known by Muslims.[37]

 

 

Laws of Religion is a project of the Religion Research Society.

 

Updated October 13, 2016

 

 

Abbreviations used in footnotes:

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Limited preview is available here (Volume 1) and here (Volume 2). Full text online and download for Volume 1 is here and here and for Volume 2 is here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA. It is available as a PDF file here. It can be downloaded as a pdf file from various websites such as this one.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society. It can be downloaded here.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.



[1] DJP 18.2.3 (Vol 2, pages 36-37)

[2] SR 166 (pages 173-174), SR 179 (page 178)

[3] SR 735 (page 337)

[4] DJP 18.2.3.7 (Vol 2, pages 49-51)

[5] DJP 18.2.3.7 (Vol 2, pages 49-51)

[6] DJP 18.2.3.1 (Vol 2, pages 37-38), DJP 18.2.3.2 (Vol 2, page 38); SR 567 (page 301)

[7] DJP 18.2.3.1 (Vol 2, pages 37-38),  RT m6.1 (pages 527-528)

[8] DJP 18.2.3.2 (Vol 2, page 38), RT m6.1 (pages 527-528)

[9] SR 571-574 (page 301)

[10] DJP 18.2.3.1 (Vol 2, pages 37-38), DJP 18.2.3.6 (Vol 2, pages 47-49), RT m6.3 (1) (page 528)

[11] DJP 18.2.3.6 (Vol 2, pages 47-49), RT m6.3(2) (pages 528-529)

[12] DJP 18.2.3.6 (Vol 2, pages 47-49)

[13] DJP 18.2.3.6 (Vol 2, pages 47-49)

[14] DJP 18.2.3.2 (Vol 2, page 38), RT m6.0 (pages 527-528)

[15] DJP 18.2.3.2.2 (Vol 2, page 39)

[16] DJP 18.2.3.2.4 (Vol 2, page 40)

[17] DJP 18.2.3.3 (Vol 2, page 41, DJP 18.2.3.3.7 (Vol 2, pages 44-45), DJP 18.2.3.3.9 (Vol 2, page 46), RT m6.5 (page 529)

[18] RT n12.1 (pages 575-576)

[19] RT n12.2 (page 576)

[20] RT n12.3 (page 576)

[21] RT n12.4 (page 577)

[22] DJP 18.1.2 & 18.1.3 (Vol 2, page 2)

[23] RT m2.15 (page 516)

[24] RT m6.12 (page 530)

[25] DJP 18.2.3.8 (Vol 2, pages 51-53), RT m6.7 (page 529)

[26] RT m6.7 (page 529)

[27] RT m6.7 (page 529)

[28] DJP 19.1.1.1 (Vol 2, pages 72-73), DJP 19.1.3.3 (Vol 2, pages 82-83), DJP 19.3.2 (Vol 2, pages 103-105), RT n7.7 (page 565), SR 137 (pages 149-150)

[29] RT m6.12 (page 530)

[30] RT p29.1 (page 673)

[31] DJP 22.4-22.5 (Vol 2, pages 146-149), RT m6.8 (pages 529-530)

[32] DJP 18.2.3.11 (Vol 2, pages 54-56), RT m6.9 (page 530)

[33] RT m2.12-m2.13 (page 515)

[34] DJP 18.2.3.11 (Vol 2, pages 54-56)

[35] RT p0.0 (pages 651-652)

[36] QR 4:31, cited in RT p0.1 (page 652)

[37] RT p70.2 (page 696)