Forbidden marriage (nikah munhi 'anhu)

A forbidden marriage is one the lawgiver has forbidden. The encyclopedia sets out its kinds, among them the marriage of banners, the marriage of a group, the marriage of seeking offspring, and the marriage of exchange (shighar), with each school's ruling on each kind. ¹

The marriage of banners. Prostitutes set up banners at their doors as signs; whoever wanted them went in. If one conceived and bore a child, a group gathered, the physiognomists were called, and the child was attributed to whichever man they judged, and he could not refuse. The forbidding of it rests on the verse "leave the outward sin", and on Aisha's report, which says that the Prophet ﷺ pulled down all the marriages of the age of ignorance except the marriage people practise today. ³ The marriage of a group. Some men, fewer than ten, from one tribe or several, shared intercourse with a woman, with her consent; when she bore a child she named the man she wished, and he could not refuse it. ³ The marriage of seeking offspring. A man told his wife, after her purification, to seek intercourse with a noble or brave man, and he kept away from her until her pregnancy showed, for the sake of a noble child. ^{4 3} The marriage of exchange (shighar). A man gives his daughter to another on condition that the other gives his daughter, with no dower between them. The jurists agree that it is forbidden in Islam, on the hadith of Ibn Umar that the Prophet forbade shighar, on the hadith of Anas "there is no shighar in Islam", and on the hadith of Jabir. ^{3 2} The ruling on shighar and its ground. The majority of Malikis, Shafi'is and Hanbalis hold that shighar marriage is invalid. Its agreed form is that one says "I marry you my daughter, on condition that you marry me your daughter, and the sexual part of each is the other's dower", and the other accepts. They differ on its ground: the Malikis say it is the absence of a dower, a view also held by some Shafi'is; most Shafi'is say it is the sharing of the sexual part, since each sexual part becomes the object of the contract and its dower, and the prohibition is on the marriage itself, not on the dower, since an invalid dower does not void a marriage; others say it is conditioning and suspension. ^{2 5 6} Kinds of shighar in the Maliki school. The pure shighar, in which no dower is named for either, is void and is dissolved at all times, before and after intercourse, by an irrevocable divorce; it has the effects of a valid marriage for prohibition and inheritance if one party dies before the dissolution. The shighar with a dower, in which each is named a dower but one marriage depends on the other, is dissolved before intercourse without dues, and after it stands on the higher of the named dower and the dower of the like. The mixed kind, in which one is named a dower and the other is not, follows the pure rule for the one and the mixed rule for the other. The child is attached to the father and the prescribed penalty is averted in all three kinds. ^{7 5} Shighar in the Shafi'i school. If the sexual part is not made a dower, the sounder view is that the marriage is valid and only the named dower is void, owing the dower of the like to each; if the sexual part and a sum of a thousand dinars are both made dower for each, both contracts are void in the sounder view, since the sexual part is shared; if one makes his daughter's contract conditional on the other's daughter's sexual part being his own daughter's dower, his daughter's marriage stands in the sounder view and the other is void. ^{6 8} Shighar in the Hanbali school. Among the void forms: one who marries another his ward on condition the other marries him his ward, with no dower; or the sexual part of each made the dower of the other. Ahmad's report never varied that shighar is void; a report from Umar and Zayd ibn Thabit (may God be pleased with him) says they separated the two spouses in a shighar. If a dower is named for each without sharing, both marriages stand with the named dower, which is the school's view. ⁸

The Hanbalis, continued. If a dower is named for each that is separate from the sexual part of the other, the marriage stands; if the dower named is coins and the other's sexual part, it does not. The named dower must not be a trivial trick, since tricks do not make lawful what is forbidden. Al-Kharaqi holds the whole marriage void. If a dower is named for one and not the other, the marriage of the one named stands and the other is void; Abu Bakr of the Hanbalis holds both void. ⁹ The Hanafis: shighar is valid. Their form is that a man marries his daughter on condition the other marries him his daughter, with each sexual part the other's dower and no other dower. The marriage stands and the dower of the like is owed to each, since a non-dower is named; the prohibition, they say, targets the empty form of shighar, so a dower of the like is owed, as if the wife were married for something that is not property, such as wine or carrion. If the marriage has a dower, or the sexual parts are not made dowers, or each names a dower, it is not shighar but a valid marriage by agreement. This is the view of al-Zuhri, Makhul, al-Thawri, al-Layth, a report from Ahmad, Ishaq and Abu Thawr. ^{9 10} The marriage of a companion (nikah al-khidn). A khidn is a man who secretly has relations with a woman; the Arabs disapproved of open fornication but not of having lovers, and God forbade both in the verse "do not approach the indecencies, outward or hidden", and allowed intercourse only in a valid marriage or with a right hand's possession. ^{10 11} Temporary marriage (nikah al-mut'a). This is a man's saying to a woman, "I give you such and such, on condition that I enjoy you for a day, a month or a year", or for an unknown term, such as the season of the pilgrimage, or while the man stays in the town, or until a certain man arrives; when the term ends the separation happens without divorce. It was a practice of the age of ignorance, lawful at the beginning of Islam, then forbidden. Ali reported that the Prophet forbade it on the day of Khaybar; it was permitted on the day of the conquest; some say at the farewell pilgrimage; then forbidden for ever, on the report of al-Rabi' ibn Sabra. Al-Shafi'i said he knew nothing forbidden, then permitted, then forbidden, except temporary marriage. ^{10 11} The first view: prohibition. The majority (the Hanafis, Malikis, Shafi'is, and in the sounder school view the Hanbalis) hold temporary marriage forbidden and void. Their evidence: the report of al-Rabi' that God has forbidden it until the Day of Resurrection; Ali's report that it was for one who could not find a wife and was abrogated by the rules of marriage, divorce, waiting and inheritance; Abu Hurayra (may God be pleased with him)'s report that marriage, divorce, the waiting period and inheritance forbid it; the verse that the lawful is only the spouses or the slave-women; Ibn Abbas's word that every private part besides these is forbidden; and that marriage is not made for appetite alone. They explain the verse "whom you enjoy of them, give them their wages" as enjoyment by marriage, not hire, and the dower as called a wage within marriage itself; it is abrogated, according to Ibn Abbas by the verse of divorce, and according to Ibn Mas'ud by the verses on divorce, dower, waiting and inheritance. ^{11 12 13} The second view: permission. Reported from Ibn Abbas, held by most of his companions, such as Ata' and Tawus, and by Ibn Jurayj, and reported from Abu Sa'id al-Khudri and Jabir. They cite the apparent words "whom you enjoy of them, give them their wages", Umar's saying "there were two temporary enjoyments in the Prophet's time, I forbid them and punish for them: the temporary marriage of women and the temporary pilgrimage", Ibn Mas'ud's report of the leave given in the campaign, and Jabir's "we enjoyed a handful of dates and flour". They say temporary marriage is a contract on a benefit, so a term may be set, as in hire. ^{13 14}

The argument for permanent prohibition. The majority hold that the permanent prohibition of temporary marriage is established from the Prophet, by the report of Sabra al-Juhani at the conquest of Makka: "I did not leave until the Messenger forbade it". The dissent of some Companions does not invalidate the report, since most Companions remembered the prohibition and acted on it; Umar said "the Messenger allowed us temporary marriage three times, then forbade it, and by God, I will stone anyone I know who enjoys it while married." Abu Hurayra's report says that marriage, divorce, the waiting period and inheritance abolish it; Jabir's report says the women they enjoyed were forbidden until the Day of Resurrection. Ibn Mas'ud's report of the permission does not mention a date, so the reports of prohibition govern it. Al-Jassas argues from the Companions' agreement that if permission remained they would not have agreed to forbid it, and that Ibn Abbas withdrew his view. Al-Mazari says the reports establish its abrogation, and that consensus fixed its prohibition. ^{15 16 17} The form of temporary marriage. The Malikis and Shafi'is hold no difference in its nullity between the word "enjoyment" and the words "marriage" or "giving in marriage" with a term; "I marry you for ten days" is void, and they call it fixed-term or time-limited marriage. The Hanafis hold that temporary marriage is void: it is saying to a woman free of impediments "I enjoy you for ten days for such a sum"; they distinguish it from a time-limited marriage, which is stated with the words of marriage and witnesses, while enjoyment is stated with the word for enjoyment and without witnesses. Ibn al-Humam adds that the reports do not specify the wording; the sense governs, and no Companion is known to have said "I have enjoyed you". ¹⁷ The Hanbali forms of temporary marriage. (a) marrying a woman for a known or unknown term; (b) stipulating the divorce at a time, as "I give you my daughter for a month, or until the season ends"; (c) intending in the heart the divorce at a time; (d) saying "let me enjoy you", and she says "I have enjoyed you", without a guardian or witnesses. ¹⁸ The effects of temporary marriage. (a) No divorce, no ila', no zihar, no inheritance, no li'an, no muhsan status, and no lifting of a triple-divorce bar for the first husband; by agreement of those who call it void, and they are separated. (b) Nothing is owed before intercourse; after it, the dower of the like is owed according to the Shafi'is, a Hanbali report and a Maliki view, since the term harms the dower; the Hanafis owe the lesser of the named dower and the dower of the like, or the dower of the like if none is named; the Malikis and the school's view of the Hanbalis owe the named dower, since its invalidity comes from the contract. (c) A child born of it is attributed to the man, whether he believed it a valid marriage or not, by the shubha of the contract; the period is counted from intercourse, according to Muhammad of the Hanafis, the view on which the fatwa rests. (d) Intercourse establishes in-law prohibition between the man and the woman and their ascendants and descendants. ^{18 19} The penalty for temporary marriage. The majority (the Hanafis, the Hanbalis, the school's view of the Malikis, and the sounder Shafi'i view) hold that there is no prescribed penalty for one who enters a temporary marriage, man or woman, since penalties are averted by doubt, and the doubt here is that of disagreement; but one who knows the prohibition is disciplined for a sin with neither penalty nor expiation. The Shafi'i counterpart and a weak Maliki view hold that the prescribed penalty is due for the man and woman, since its abrogation is established. The Shafi'is say the penalty falls if the contract was made with a guardian and two witnesses, and is due if he had intercourse knowingly without them. ¹⁹ The fixed-term marriage. The Hanafis define it as marrying a woman with two witnesses for ten days, a month or a year. Temporary marriage differs from it in using the word for marriage and witnesses; Zufar says temporary marriage exists only with its own word. If the term is one they never reach, the Hanafis, Hanbalis, Abu al-Hasan of the Malikis and al-Bulqini and some later Shafi'is hold the marriage valid as if unrestricted, since an unrestricted marriage is no more than that; the Malikis and the Shafi'is other than al-Bulqini hold it void. If the term is one they reach, such as ten days, it is void according to the Hanafis (other than Zufar), the Malikis, the Shafi'is and the Hanbalis, since it is a form of temporary marriage; Zufar holds the marriage valid and permanent and the condition void. ^{19 20} The marriage with intent to divorce. The Hanafis, Malikis, Shafi'is and, in a view the Mughni affirms, the Hanbalis hold that marrying a woman intending to divorce her after a month or more or less is a valid marriage, whether the woman or her guardian knows the intent or not, since the contract carries no condition. ²⁰

Marriage with intent, concluded. Intention does not void a marriage, since a man may intend what he does not do and do what he does not intend; and a time limit is made only by wording. The Shafi'is say such a marriage is disliked, to leave the disagreement of those who void it. The Hanbalis in the school's sounder view and al-Awza'i hold it void as a form of temporary marriage; so does Bahram of the Malikis, if the woman understood what the man meant. ²¹ The marriage conditioned on divorce. The Malikis, Shafi'is and, in the school's sounder view, the Hanbalis hold it invalid, whether the divorce is at a known or an unknown time, since the condition contradicts the purpose of the contract and stops its continuance, like temporary marriage. The Hanafis, and a Shafi'i and Hanbali view, hold it valid and the condition void, since a stated cutting-off shows that the marriage is meant to last for ever, as when one stipulates that he take no other wife. ^{21 22} The restorer marriage (nikah al-muhallil). It arises for a woman divorced three times, who may not return to her first husband unless: her waiting period from the second husband is complete; another man marries her in a valid marriage; the new husband truly consummates it, by the glans or its measure entering; he divorces her; and her waiting period from him is complete. ^{21 22} The first form: a stipulated restoration. Void for the Malikis, Shafi'is and Hanbalis; it is the view of most scholars, such as al-Hasan al-Basri, al-Nakha'i, Qatada, al-Layth, al-Thawri and Ibn al-Mubarak. The grounds: the Prophet's curse on "the restorer and the one for whom he restores"; Uqba ibn Amir's hadith "shall I tell you of the borrowed ram? it is the restorer; God curses the restorer and the one for whom he restores"; and Umar's word that he would stone any restorer or restored man brought to him. Al-Mawardi says it is worse than temporary marriage in two ways: the term is unknown, and intercourse is stipulated for another. The Hanafis hold every form valid and the stipulation void, but reprehensible if the condition is stated, though Abu Yusuf calls the marriage void, since it is of the nature of a temporary marriage. ^{22 23} The second form: a stipulated divorce after restoration. Void for the Malikis, the Hanbalis in the school's view, and the Shafi'is in the sounder view and Abu Yusuf, since such a stipulation prevents the marriage from lasting, like a fixed term; the Hanafis, a Shafi'i and a Hanbali view hold the marriage valid and the condition void, and reprehensible, since it defeats the purpose of marriage: dwelling, having children and chastity. The Hanafis interpret the curse as aimed at taking a fee for restoration, comparing it to a fee for the stallion's service, and call the restorer "the borrowed ram". ²³ The third form: agreement before the contract, not stated in it. Valid for the Hanafis, the Shafi'is and, in one view, the Hanbalis, since it contains no condition that voids it; a contract is voided by what is stipulated, not by what is intended. Ibn Sirin reports a Bedouin who sat at the mosque door, a woman divorced three times asked him to marry her to sleep with her and divorce her; Umar let the marriage stand, since the condition came before the contract, and punished the woman who brought them together. The Shafi'is dislike this form, to leave the disagreement. The Hanafis count it recommended, with the restorer rewarded if he intends reconciliation. ^{23 24} The fourth form: a prior condition and an intent other than it. Valid for the majority (the Hanafis, Shafi'is and Hanbalis), since it lacks the stipulation and the intention of restoration; the Hanbalis read the report of the man of the two rags as this case. The Malikis hold that if the restorer intends restoration and also intends to keep her if she pleases him, it is not restoration, and the marriage is void and dissolved by an irrevocable divorce before or after consummation. ²⁵ Effects of the restorer marriage. First: whether she is lawful to the first husband. Those who hold the forms valid give the marriage the effects of a valid marriage: lawful enjoyment, dower, maintenance, muhsan status and lineage. Those who hold it void apply the rules of void contracts, and it gives no muhsan status and no lawfulness to the first husband. The Shafi'is in an old view say that she is lawful to the first husband once she has tasted the restorer's sweetness and he has tasted hers. Second: the restorer marriage cancels the first husband's three divorces, by agreement of the jurists. ^{25 26} Marriage in ihram. The majority (the Malikis, Shafi'is and the Hanbalis in the school's view) hold that a marriage by one in ihram is invalid, whether as husband, wife, guardian, or agent for another, as with Umar, Ibn Umar, Zayd ibn Thabit, Sa'id ibn al-Musayyab, Sulayman ibn Yasar, al-Zuhri and al-Awza'i, on the hadith of Uthman, "the one in ihram may not marry, be married or propose"; on the report that one who marries in ihram is separated from his wife (Ali); on the report of Umar separating two in ihram who had married (Malik's Muwatta'); on the report of Shawdhab, a client of Zayd ibn Thabit, whom Zayd separated from his wife; and because marriage in ihram makes the in-law prohibition, like intercourse, so ihram should forbid it. ²⁶

Marriage in ihram, continued. The Hanbalis hold that the time of the contract, not of the agency, counts. If one in ihram appoints a lawful man and the contract is made after the principal has left ihram, it is valid; if a lawful man appoints a lawful agent and the contract is made after either has entered ihram, it is not valid, though some say it is. If the principal enters ihram after appointing his agent, the agency is not dissolved; if he leaves ihram, the agent may conclude. In a report from Ahmad, if a man in ihram appoints another to marry, the marriage is valid, the view chosen by Abu Bakr. Marriage in ihram in all forms is void for the Shafi'is and the Hanbalis in the school's view; for the Malikis it is irregular and dissolved before and after consummation by a single divorce, a view also taken by a Hanbali judge, since it is a disputed marriage. Ibn Abbas and the Hanafis hold such marriage valid, even between two in ihram, on the report that the Prophet married Maymuna while in ihram, and by analogy with returning to a wife; the Hanafis say it is reprehensible, perhaps disliked, since the one in ihram is occupied from such contracts. ²⁷ The marriage of the sick. The majority (the Hanafis, Shafi'is, Hanbalis, al-Awza'i, Rabi'a and Ibn Abi Layla) hold that a sick man may marry up to four women, as he may buy, on the general texts; they cite the case of a man who married three women in his last illness and they were allowed. Once the marriage is valid, the dower is valid and the spouses inherit from each other; the majority hold no difference whether the sick party is the man or the woman. The Malikis forbid marriage between two who are both sick with a fatal illness, and the prevailing view forbids it even with the heirs' consent; if it happens in a fatal illness, it is dissolved before and after consummation unless the sick party recovers; if the man dies before dissolution, she has her named dower from a third of his estate. Al-Zuhri and Yahya ibn Sa'id say the marriage is void when either party is sick with a fatal illness; al-Qasim and al-Hasan say it is void only if intended to harm the heirs. ^{28 29} Secret marriage: its nature. The majority (the Hanafis, Shafi'is and Hanbalis) hold that secret marriage is one not attended by witnesses; what two witnesses attend is public, since a secret that passes two persons ceases to be a secret. The order to announce the marriage is recommended, not required, shown by the order to beat the tambourine; the reference to secret marriage in the Prophet's prohibition means one without witnesses, shown by Umar's ruling on a marriage attended only by one man and one woman: "this is secret marriage, I do not allow it". The Malikis have two methods: al-Bajji's, that the secret is kept by anyone other than the witnesses, whether or not the witnesses were told; and Ibn 'Arafa's, that the secret is what the witnesses were told to keep, in which case the one who commands must be the husband. Concealment for fear of a tyrant is not a secret marriage, nor is an agreement to keep it secret made after the contract. ^{29 30 31} Secret marriage: its ruling. The majority hold it void for lack of witnesses. For the Malikis it is dissolved before consummation, and after consummation if it did not last long; the length is judged by custom, and the dissolution is by divorce, since it is a disputed marriage. The spouses are punished if they consummated without excuse of ignorance and were not compelled; the witnesses too, if consummation occurred and they had no excuse. Ibn Qudama says the Malikis' secret marriage is disliked by the Hanbalis though valid; Umar, Urwa, Ibn Ubayd Allah ibn 'Utba, al-Sha'bi and Nafi' disliked it; the Hanafis, Shafi'is and some Malikis hold it valid; Abu Bakr Abd al-Aziz of the Hanbalis holds void a marriage whose witnesses were told to keep it secret. ^{31 32} Marriage of the forbidden kin. Some forbidden women are forbidden for ever, by kinship, fosterage or in-law relation; others are forbidden for a time, such as two sisters together, or a woman with her aunt or her maternal aunt. ³²