Indexed OCR Text

Vol.3
Translation & Commentary of MISHKATUL MASAABIH
.
260
SONGS PERMITTED DURING MARRIAGE
(٣١٥٩) وَعَنْ عَامِرٍ بُنِ سَعٍْ قَالَ دَخَلْتُ عَلى قَرَظَةَ بْنِ كَعْبٍ وَأَبٍ مَسْعُوُدِ الْآَنْصَارِيِّ فِ عُرُسٍ وَإِذَا جَوَارٍ
يُغَنِّيْنَ فَقُلْتُ أَىْ صَاحِبَىْ رَسُولِ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ وَأَهْلَ بَدْرٍ يُفْعَلُ هُذَا عِنْدَكُمْ فَقَالَا إِجْلِسُ إِنْ
شِئْتَ فَاسْمَعُ مَعَنَا وَإِنْ شِئْتَ فَاذْهَبْ فَإِنَّهُ قَدْ رُخِّصَ لَنَا فِي اللَّهُوِ عِنْدَ الْعُرُسِ- (رواه النسائي)
3159. Sayyiduna Aamir ibn Sa'd al >, said that he went to a wedding where he
found Sayyiduna Qarazah ib Ka'b رضى الله عنه and Abu Mas'ud Ansar رضى الله عنه. There
girls were singing, so he asked them, "Is this done while both of you are here
companions of Allah's Messenger صلى الله عليه وسلم and participants of Badr?" They said,
"Sit down if you like to listen and join us. Or depart if you like. Indeed, we are
permitted (to listen to) songs at a wedding."1
COMMENTARY: This sows that even in those days prohibition of songs was known. Some
people were aware of the exception of days of festivity but some did not know. Aamir ibn
Sa'd alles, was one of those who did not know that songs were allowed at weddings.
CHAPTER - V
THE FORBIDDEN WOMAN2
◌َابُ الْمُحَرَّمَاتِ
WOMAN WHO ARE FORBIDDEN TO MEN
`One of the conditions of marriage to be correct is that the woman should not be one of the
mahram (forbidden women). This chapter is about women who are the mahram or those
whom a man may never marry. Details about it may be seen in the books of fiqh (Islamic
jurisprudence) of the Hanafis, the famous and reliable fatawa Alamgiri, for instance. It
covers the subject very well and we shall reproduce from it here. (first of all).
ABOUT THE MAHRAMAT3
The woman who are among the mahram are of nine kinds. Or, we may say that a marriage
may be forbidden for nine reasons. They are outlines here.
1. Relatives by lineage. They are: mother, daughter, sister, father's sister, mother's sister,
nieces (brother's and sister's daughters). It is forbidden for ever to marry any of them, have
sexual intercourse or do anything that leads to it or is connected with it.
Mother includes besides one's own mother, one's grandmother and so on up the tree.
Daughter includes one's own real daughters, grand daughters (from son as well as from
daughter) so on down the pedigree line.
Sister includes real and step-sister both from father's side and from mother's side.
Nieces also embrace the three kinds, meaning children of real brothers and sisters, children
of step brothers and sisters and children of half brothers and half sisters from mother's side
even lower down in descent. All of them are muhramat (forbidden)
The paternal aunts are also of three kinds, meaning real paternal aunt, step aunt from
father's father's side and Akhyafi (only from father's mother's side). So also paternal aunts,
1 Nasai'i # 3383.
2 or mahram, for bidden to marry. The word prohibition is used to mean this too.
3 plural of mahram.

261
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
of father, of grandfather and of grandmother fall in the same category as one's own. They
are all mahram. However, the issue of paternal aunt of one's own paternal aunt is complex.
If a man's paternal aunt is the real sister of his father or step sister (from father's side) then
her paternal aunt is forbidden to this man. But if his paternal aunt is his father step sister
only from mother's side then her paternal aunt will not be forbidden to him.
The same applies to maternal aunt. All kinds of maternal aunts are forbidden: real and
step (from father's or mother's) side. Father's and mother's maternal aunts are forbidden.
Again, the issue of maternal aunt of one's maternal aunt is complex. Now, if Zayd's
maternal aunt is the real sister or sister only from her mother's side then her maternal aunt
is forbidden to zayd. If Zayd's maternal aunt is his mother's sister only from her father's
side then she is not forbidden to zayd and they can marry.
2. Relatives from in-laws. There are four kinds of women who are forbidden inmarriage
because of relationship of the in-laws. They are: the mother-in-law (who is the mother of
one's wife) , the paternal and maternal grandmothers of one's wife and so their mothers,
meaning grandmothers of one's wife's parents, wife's daughter and her daughter and so
down the line, like daughters of wife's granddaughter, and so on. They are all forbidden if
the man has had sexual intercourse with his wife and whether that daughter of his wife is
maintained by him or not.
The Hanafi scholars in respect of prohibition1 of a man's wife's daughters (from her
previous marriage) to him, do not regard his solitude with his wife at par with their sexual
intercourse. Her daughters will be forbidden to her husband only if it is proved that he has
had a sexual intercourse with her after their marriage. If they have been alone together
(allowing them full opportunity to copulate) but did have sexual intercourse them her
daughters from previous marriage are not forbidden to him.
Daughter-in-law (meaning son's wife) ,wives of grandsons (whether son's sons or
daughter's son) and so on down the line (wives of great grandson, etc) are forbidden to a
man irrespective of whether their husbands have had sexual intercourse with them or not.
The wife of an adopted son is not forbidden. If a man's adopted son dies or divorces his
wife, then he may marry her.
A man's step-mother, his step grand-mothers (paternal or maternal) and so on up the line are
forbidden to him for ever. Neither may he marry them nor have sexual intercourse with them.
The prohibition to marry any of the in laws is established only when marriage with the
concerned is confirmed. The prohibition is not established if the marriage is invalid. If a
man commits adultery with a woman then her mother, her grandmothers (maternal and
paternal) , her daughter and her grandmothers will all be forbidden to him. In the same
way, his father, grandfather (both paternal and maternal), sons, grandsons will all be
forbidden to the woman with whom he committed adultery.
If a man commits adultery with a woman as a result of which the wall between her vagina
and rectum gives way causing them to come together, then her mother will not be
forbidden to this man because he may not have penetrated her vagina (but her rectum).
However, if she conceives a child and it is confirmed that this man is responsible for it,
then her mother will be forbidden to him.
Just as the prohibition results from sexual intercourse so too it results from touching the
woman (with desire), kissing her, looking at her private parts with lustful desires.
1 In the sense forbidden to marry - mahram.
-

262
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
According to the Hanafis, these things are alike when they are observed through marriage,
ownership (meaning slave master relationship) or indecency (meaning adultery).
Moreover, the Hanafi scholars say that in this case doubt or certainty are alike. And, man
and woman embracing one another with lust is like kissing as for as the ruling is
concerned. It is the same of the lock themselves together, body with body. Again, if they
bite one another with teeth in a lustful impulse, the same ruling applies. In all these cases,
prohibition is confirmed.
If any one looks at a man's sexual organ, or kisses it then the same prohibitions will.apply
to him as for sexual intercourse, but not on looking at any of the other of his organs, or
touching them, unless the looking or touching is with a lustful desire in which case same
prohibitions will be effective.
As for as a woman's vagina in concerned looking at its outward position does not attract
the same rulings, but looking at its inside brings down the punishment of prohibitions. The
ulama (Scholars) write that if a man looks at the vagina of a woman who is standing then
the prohibitions of sexual intercourse do not apply to him because in that position the
inside of the woman's vagina is not seen. That is only seen when she is reclining on her
back. The prohibitions also apply when there is a fine clothing or any transparent thing
covering it, and, it spite of that, the inside is visible to the man.
If a man who looking in a mirror and he saw reflected therein a woman's vagina and became
excited and looks at it, then neither will the mother nor the daughter of this woman be
forbidden to the woman because he has seen only a reflection and not the vagina a directly.
-
If a woman is sitting at the banks of a stream or river, or on a bridge and a man looks at her
reflection in the water and then again looks at it in the water with a sensual desire and
keeps looking at it, then too prohibitions will not apply. But, if she is in the water and he
looks at her vagina accidentally and then looks at it with a sensual desire then the
prohibition will apply (because this is direct looking).
. If anyone touches a woman with sensual desires, the prohibitions apply and it does not
matter if he touches her deliberately or forgetfully or under compulsion (or own mistake)
or in sleep.
· If a man intended to awake his wife to have sexual intercourse with her but by mistake
he touched his daughter and on the assumption that she was his wife, he pinched her with
a sensual desire. And she, too, being young was ripe for sexual desire, so the girl's mother,
meaning his own wife, will become forbidden to him.
. If a man touches with lust a woman's hair on her head then prohibition applies to him. If
he touches her hair that are hanging then nothing is forbidden to him. However, Natfa ,
à has declared a general prohibition for touching a woman's hair without going into the
details (of where the heir lie).
€
. The same prohibition applies if a man touches a woman's nails with a sexual desire.
In this connexion, it must be understood that the prohibition on touching a woman with
sensual desire becomes effective it there is no clothing between them. If the clothing is such
that the man touching her does not feel the heat of her body then no prohibition applies
even if the penis becomes erect. If a man touches a woman's seeks at her soles (underside) ,
then prohibition becomes effective, But, if a leather covering over the socks prevents any
kind of sensation then no prohibition applies.
· If a man kisses a woman while there is clothing between them, prohibition will become
effective provided the man senses the coolness of the woman's teeth or lips.

263
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
Prohibition becomes effective on touching. It is not necessary that the man should continue
to touch for long. The ulama (Scholars) say that if a man driven by lust stretches his hand
towards his wife but instead of his wife, his hand touches the nose of his daughter and
with it his excitement multiplies, the girl's mother, meaning his own wife, will become
forbidden for the man even if he had removed his hand instantly.
For a prohibition to be effective, the woman who is touched or kissed must be such for
whom one may have a lustful desire. The jurists rule that the minimum age for whom a
man can have a sexual urge is nine years. He does not feel sexual excitement for a younger
girl. If a man has sexual intercourse with a minor girl who is not likely to cause sexual
excitement in a man then prohibition will not arise. On the other hand, if a woman is so
very old that she is beyond exciting a man, then too she becomes the means to prohibition
because she had fallen under the purview of the ruling. She cannot come out of it because
of old age. As for the minor, she had never attracted the prohibition.
Just as prohibition (or forbidden degrees) can take effect only if a woman is such that a man
may have a sensual desire for her, so too for prohibition to be effective, man must be capable
of attracting a sensual desire from a woman. Hence, if a four year old boy had sexual
intercourse with his father's wife (his step mother), then prohibition will not be effective.
However, if the boy is one whose equals in age can have sexual intercourse then the same
ruling will apply for him as applies to adults. The scholars describe this kind as one who is
capable of having sexual intercourse, whose inclination to woman is apparent, and woman .
feel shy before him.
In the foregoing things about touching and looking, it is presupposed that the sexual urge
(or the excitement) is there. A man will be subject to the forbidden degrees (of marriage,
the topic of this subject) if he touches a woman, kisses her or looks at the inside of her
vagina with a sensual desire. If when he does these things (touching and looking), he has
no lustful inclination but it develops afterwards, then the forbidden degree do not apply to
him. The sign of a lustful inclination in man is the erection of his penis, or, if it already was
erect, increase in its rise and thickness. This ruling is observed by jurists. Hence, if a man
goes to his daughter by mistake instead of going to his wife and his penis was already erect
(before he goes to her) and the erection did not increase, then the girl's mother, meaning his
own wife, will not be forbidden to him. This is the sign of a lustful inclination for a man
who is young and potent (and able to have sex). If he is old then the sign of sensual desire
in him is an urge and excitement in his heart if there was no excitement -beforehand. If the
excitement in his heart was there, then an increase in the excitement is the sign for him.
The sign of a lustful desire in woman and the man who is castrated is the growth of a
desire in his heart and a sexual pleasure on touching. etc., if these things were not already
found in them. If these things had been there beforehand, then an increase in them.
It must be remember that the forbidden degrees apply when even one of the two - man or
woman - possesses the lustful desire.
The forbidden degrees on touching kissing, etc. apply necessarily when there is no
ejaculation. This is a condition. If ejaculation takes place then the forbidden degrees do not
apply, because it is clear when this happens that touching, etc. did not lead to intercourse.
. If a man sees a woman's behind or commits an unnatural act at her behind then the
forbidden degrees do not apply.
. Similarly, if a man perpetrates the acts of intercourse with another man then the
forbidden degrees do not apply.

264
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
. If a man confesses to his wife that they are forbidden to one another (because of an illicit
act on his part) , then he is to be believed. The two will be separated.
. If a man refers to a wrong. that he had committed before they had married, like
confessing to his wife that he had committed adultery with her mother, then his word is
deemed reliable and the two will no longer be husband and wife. However, it will be wajib
(obligatory) to give to the woman the dower in full (as had been specified at the time of their
marriage). The contract will not be wajib (obligatory). It is not necessary that the man repeat
his confession. It is enough that he confesses just once. Hence, if he retracts from his
confession and denies after the first confession, the judge will not regard their marriage as
valid. Of course, if the man had truly made a false confession then the woman will remain
his wife in Allah's sight though the judge will separate them.
. If a man says of a woman that she is his foster mother (meaning that he had suckled him) but
later when he decides to marry her, he says, 'I had lied, She is not my foster mother," then in
this case a lenient view is taken and it is allowed to him to marry that woman.
. If a man kisses a woman and says that he had not done it with a sensual desire, or he
touches her or looks at her vagina and denies that he was driven by a sexual urge, then in
the case of kissing, the forbidding degree will be applied to him till it is known for certain
that he had not been prompted by a sensual derive. In the other two cases, the command
forbidding him marriage will be applied only on finding out if he had done that because of
a sensual urge.
The reason is that a kiss generally follows a sensual desire touching and looking do not
necessarily ensue from a sensual desire. However, this is when the man had touched the
woman at any part of her body other than her vagina. If he had touched her vagina and
claims that he did not do it out of a sensual urge then he will not be believed. Also, when
he touches her breast, he cannot say that he was not prompted by a sexual urge.
. Similarly, if he mounted a beast with her and claims that he did not mount because of a
sexual urge then he would not be believed. But, if he climbed a woman's back to go over a
river and says that he was not driven by a sexual urge then he would be believed.
. If a man boasts before people that he had touched a certain woman driven by sexual
urge then the testimony of the people against him will be accepted and the forbidden
degree will be applied to him.
. Similarly, if the witnesses say that certain man had touched a woman with carnal desire
then their testimony will be accepted because this kind of an urge is easily detected. The
same applies about any one testifying that the man had kissed a woman.
Qadi Ali Sa'di ales, said that if an intoxicated man nabs his daughter, clings to her and kisses
her, and decides to have sexual intercourse with her but she reminds him that she is his
daughter so he lets her go, then too her mother (this man's wife) will be forbidden to him.
If a man is asked, "What did you to your mother-in-law?" and he says that he had a sexual
intercourse with her then the prohibition of affinity will be effective on him. (It is hurmat
masahirat or the forbidden degree) This, is spite of the fact that the person asking and this man
were both jesting with one another. But, he will not be believed in law, that he was joking.
If a man says of his female slave that he has had a sexual intercourse with her then she is
forbidden to his son. If the man says about someone else's female slave that he has had a
sexual relationship with her then his son is allowed not to trust him and to buy the female
slave and have sexual intercourse with her.
. If a son inherits a female slave from his father then he may have sexual intercourse with

265
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
her unless he knows for certain that his father had copulated with her.
· A man married a woman on her assurance that she is a virgin. However, after
marriage when he decide to have sexual intercourse with her, he learnt that she was
not a virgin. On being asked, she named his father as the one who had committed
adultery with her. Now, it is upto him to believe her in which case their marriage will
be broken and she will have no right to the dower. But, if he decides not to believe her
then their marriage will remain intact.
· If a woman alleges that her husband's son had touched her with evil design, so her
marriage to her husband had ended, then she will not be believed but her husband's son's
word will be trusted.
. A man kisses his father's wife with sensual desire forcefully or a father kisses his son's
wife compulsorily with sensual desire but the husband asserts that no sensual desire was
involved. So, the husband's word will prevail and she will remain her wife. But, supposing
the husband agrees that sensual desire was the driving force then the couple will have to
separate and it will be wajib (obligatory) on the husband to pay the dower. However, the
husband will be in his rights to receive the amount from the man because of whom this
situation arose, provided he had done this thing to create mischief. If he had no intention to
create mischief then the husband had no right to receive anything at all.
Suppose that in the foregoing case, the father or the son had not kissed but copulated with
the other's wife. In this case, the husband cannot claim from the culprit the amount of
dower he paid to his wife. The reason is that the hadd or prescribed punishment is
imposed on an adulterer in which case no pecuniary punishment may also be imposed.
A man marries another man's female slave. Before he can come to her, she kissed her
husband's son in sexual excitement. So he made this known but her master denied it. In
this case, the marriage breaks because the husband acknowledges her crime. He will have
to pay her only half the dower payable to her because her master had believed him. The
confession of the female slave will not be relied upon.
· If a woman quarrels (at home) and (in the heat) pulls the penis of her grandfather, and
says that she did not do it in sexual excitement, then her word will be accepted.
. A marriage does not end completely because of prohibition of affinity or prohibition of
fosterage. Rather it becomes corrupted. (As a result, it is forbidden to have sexual
intercourse. So, the husband must divorce his wife. If he does not, then the judge must
cause a separation). If the husband has sexual intercourse with his wife, the hadd or
prescribed punishment will not be imposed, whether he did it in uncertainly or otherwise.
. If a man has illicit relationship with a woman or does any obnoxious deed that calls for
prohibition of affinity and then makes a repentance, then he will remain the mahram of the
woman's daughter because it is perpetually for bidden to him to marry the girl. This is
evidence that prohibition is effective after adultery and from kissing, touching etc.
· If a man, Zayd, married a woman, Khalidah, and Zayd's son (but not Khalidah's)
marries the daughter of Khalidah (from her previous marriage) or the mother of Khalidah,
then there is nothing wrong in it.
· If a man has sexual intercourse with his wife (who was divorced by her first husband
talaqah mughallazah) with a piece of cloth round his penis then it will depend on whether
the cloth permits feeling of sensation. If so, the woman will become lawful for her first
husband (to remarry). If heat did not pass through the piece of cloth then she will not be
lawful for her first husband.

266
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
3. FOSTER RELATIONSHIP: Woman who are forbidden (in marriage) because of
fosterage: the some relatives as are forbidden because of lineage and by marriage are also
forbidden because of fosterage.
If a woman has suckled a child at its age of suckling then they are related as mother and
child. Her husband is its foster father. Hence, all their relatives are forbidden to the child,
the same as the forbidden to children of real parents.
The prohibition by reasons of fosterage occurs on simply suckling at the child's age of
suckling whether it is little milk that is consumed or more. The simple fact of suckling and
milk having been drunk into the belly and having reached there with certainty is ample
evidence of fosterage.
The age of suckling is:
(i)
.
According to Imam Abu Hanifah anas, thirty month, and
(ii)
According to his two disciples Imam Abu Yusuf al , and Imam
Muhammad als, two years.
If a child first stops suckling during the age of suckling but suckles later within the age of
suckling then this is counted as fosterage. But, suckling after the period of suckling is over
does not occasion the (commands of) prohibition by suckling.
The ulama (Scholars) agree that the wages for suckling are valid for a period of two years.
Thus if a man divorces his wife and she demands from him wages for more than two years
for suckling his child t hen her demand will not be accepted. The child's father (her ex-
husband) cannot be compelled to pay to his divorced wife wags for suckling his child
beyond two years. But, she can demand and compel him to pay wages for suckling the
child for two years.
Just as prohibition by fosterage applies to the relatives of the foster mother, so too it applies
to the relatives of the foster father. A foster father is the husband of the foster mother. He is
the one who enables her to suckle after she conceives his child.
Radi (+)) is the child suckled. He or she is forbidden to marry its foster parents, their
predecessors (parents and so on up the line) and their progeny (children and so down the
line) whether related or foster. The prohibition will extend to -
· Children of his1 foster mother before she suckled him, and
· children born to her after she suckled him whether sired by his foster father or by
any other man she marries after him,
· children she suckles apart from him belonging to other parents,
· children born to his foster father from another wife.
All of them will be his foster - sisters and brothers. Their children will be his nephews and
nieces. The foster father's brother will be his paternal uncle and his sister his paternal aunt.
The brother and sister of his foster mother will be his maternal uncle and maternal aunt.
The father and mother of his foster father will be his grandfather and grandmother
respectively. And, the mother of his foster mother will his (maternal) grandmother.
There are prohibitions by reason of parents (or lineage) in fosterage. So too there are
prohibitions by reason of marriage (among in laws) in fosterage. Accordingly.
· the wife of his foster father is forbidden to the radi' (or, the foster child who had
been suckled),
1 Throughout 'his or her' may be understood.

267
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
· the wife of the radi (meaning the foster child had been suckled) is forbidden to the
foster father.
· Other relatives may be understood in the same manner, except two possibilities:
(i) In real relationship (by true parents) , marriage is forbidden with the sister of real
son. But, in fosterage, marriage is permitted to the sister of the foster son.
WHY: The reason is that the sister of his real son will be his own daughter or his own step
daughter. So the prohibition to marry her will be effective. However, both these things are
not found in fosterage. So, the sister of a foster son is not forbidden. There fore, if any of
these two things is not found in real or blood relationship too, then marriage will be proper
(in that case too). For example, a female slave who belongs to two men gives birth to a
child. Both of them claim parentage of the child till its parentage is ascribed to both man.
Now, Each of them also has a daughter from their wives, so, it is allowed to either of them
to marry the daughter of the other partner because neither of the new things is found here
(she is neither his real daughter nor step daughter) , though whichever of the two marries
the other's daughter is as though he marries the sister of his real son.
(ii) NO one is permitted to marry the mother of one's real brother, but it is allowed
in fosterage.
WHY: In the case of blood relationship, they shall be either akhyafi brothers having a
common mother or have a common father in which case the brother's mother will be his
father's wife. In fosterage, however, this thing is missing, so it is allowed to marry the
mother of the brother.
. The sister of one's foster brother is allowed to one in marriage. This is also permitted to
blood relatives, for example:
Zayd has a step brother Bakr who has a akhyafi sister (meaning, they have a common
mother but different fathers). It is allowed to zayd to marry his sister of Bakr who is Zayd's
step brother.
. The mother of a foster brother is not among the forbidden degrees.
. The mothers of a foster paternal or maternal uncle, paternal or maternal aunt are also not
among the forbidden women.
. It is allowed too to marry the mother of one's foster granddaughter (from son's side).
. It is allowed also to marry the paternal or maternal grandmother of one's foster son.
· Marriage is allowed too to the foster son's: paternal aunts, his sister's mother, his niece
(brother daughter) , his paternal aunt's daughter.
. A woman is allowed to marry the father of her foster sister, the brother of her foster son
the father of her foster grand son (from son's) and the grand father and maternal uncle of
her foster son.
However, where blood relations are concerned, all of these relatives are among the
forbidden degrees. It is not allowed to marry them.
· A man divorces his wife who has milk in her breasts. She marries another man after her
period of waiting is over. He has sexual intercourse with her. The ulama (Scholars) say
unanimously about it that when a child is born to her sired by t his second husband, the
milk in her breasts will be attributed to him and it will have nothing to do with her first
husband anymore. But, if she does not conceive a child from her second marriage then the
milk in her breasts will be said to be there because of the sexual intercourse by her first
husband, previously. In case she has conceived from the second husband, then, according

268
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
to Imam Abu Hanifah als,, till the child of the second husband is born, the milk in her
breasts will be said to be because of the first husband's sexual intercourse.
. A couple do not have any children. After some time (suddenly) the woman had milk in
her breasts (without conceiving a child). She suckled a child of someone else. The milk
belong to her. Her husband has noting to do with it. In this case, there will occur no
prohibition by reason of suckling between the radi (the child who is suckled) and any
children this man may have from his other wives.
. A man had illicit relationship with a woman because of which she bore a child. Then she
suckled someone's daughter. As a result, this adulterer and his father, grandfather and so
on and his sons are not allowed to marry the girl who was suckled by the adulterers. The
paternal and maternal uncles of the adulterer may marry her just as they may marry the
girl born to the adulteress.
· A man had sexual intercourse with a woman by mistake (falling in doubt). She
conceived a child. Then, she suckled someone's child. So, this child will be a foster child of
the man who had copulated with the woman.
When a child's parentage is attributed to the man who had the intercourse, it is also a relation
of fosterage that is established between them. When the child's parentage is not established
with this man, a relationship of fosterage is established only with the foster mother.
. A man marries a woman and they have a child. She suckled it for some time but the milk
dried up in her breasts only to grow again. She suckled another child (that milk). It is
allowed to this child to marry the children of that man from his other wives.
· A virgin grows milk in her breast s and she suckles an infant girl. She becomes her foster
mother. All commands of fosterage will apply to both of them. If a man marries this virgin
but divorces her before having a sexual intercourse with her, then he will be permitted to
marry the girl who was suckled (by the virgin). (The same command applies to wife's
daughter.) But, if he divorces her after having a sexual intercourse, then it is disallowed to
him to marry the girl.
. If a girl who is less than nine years old grows milk in her breasts and she suckles it to a
boy, then this does not establish a prohibition by reason of fosterage between them,
because this is occasioned only when milk grows in the breasts, at the age of nine or more.
. Similarly, if the breasts of a virgin secrete (or discharge) yellowish liquid, prohibition by
reason of fosterage is not occasioned by suckling it.
. A woman draws a child's mouth to her nipples but it cannot be ascertained whether the
child suckled any milk so, the prohibition by reason of fosterage will not be applied
because of the doubtful circumstances. However, it is better to be on the safe side and
apply the prohibition by reason of fosterage.
. A woman's breast discharge a thin, yellow coloured secretion. If it is swallowed by an
infant while suckling then the prohibition by reason of fosterage will apply. It will be
presumed that the infant suckled milk that had changed colour.
. If a man's breasts locate and he suckles a child, then t his does not occasion prohibition
by reason of fosterage.
· For prohibition by fosterage to be established the command is identical for a living
woman and a dead woman.
. If two children suckle milk of the same quad raped, that does not occasion prohibition by
reason of fosterage.
. The command of fosterage is applied equally in Darul Islam (the Islamic territories) and

269
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
Darul Harb (the territory of the enemies). Thus if a (disbelieving) woman suckles a
(disbeliever's) child in the enemy territory and later she, her relatives and the child
embrace Islam - or they had been adherents of Islam in the enemy territory - and emigrate
to Dar ul Islam, then all command of fosterage will apply to them.
. Just as the prohibition by reason of fosterage takes effect on suckling milk from a
woman's breasts, so too it occurs on putting milk in a child's month or squeezing it in its
nostrils. But, it does not occur on immersing milk in the child's ears, in its penis rectum or
through a wound in its brain or belly even if it reaches inside. Imam Muhammad ales, ,
however said that the prohibition occurs if injected through an enema.
. If this milk is mixed in diet and cooked to prepare food, the characteristics of milk being
altered thereby, then the prohibition is not effective on eating this food irrespective of
whether milk is the dominant component or secondary.
. If the mixture containing milk is not cooked on fire, even then prohibition does not take
effect, provided milk is not the dominant constituent of it. But, even if it is dominant, Imam
Abu Hanifah à , holds that it does not occasion prohibition because once a flowing
substance combines with a solidified ingredient, it loses the property of something
drinkable and turns into a solid. So, the ulama (Scholars) say that if the other ingredient is
not more than milk, and milk retains its flowing quality, then prohibition will be effective
on drinking it.
. If a woman's milk gets mixed with a goat's (or any animals) milk and forms a major
portion of the mixture, then prohibition becomes effective on drinking it.
· If a woman mixes bread in her milk and bread absorbs it, or she mixes her milk in
parched barley, and feeds the mixture to a child, then if it tastes of milk then prohibition is
occasioned. However, this depends on feeding the child morsel by morsel. If she feeds the
mixture after pulverizing it draught by draught then (even if the taste does not linger)
prohibition takes effect.
. If a woman's milk is mixed with water, medicine or an animal's milk, then the ruling
depends on the major portion of the contents. If milk forms a dominant portion then
prohibition is occasioned on drinking it. If any other content forms a major part then
prohibition will not be effective.
· If a woman's milk gets into something thin and flu id or solid, then, again, the ruling
depends on whether it forms a major content.
GHALIB: The word for dominant and major content is ghalib. It covers colour, odour and
taste, and it means that all these three or one of them sh ould be sensed or distinguished.
. If milk as well as another constituent of the mixture are equally felt then prohibition
takes effect because milk is not suppressed.
. If milk of two women mixes, Imam Abu Hanifah ales, and Imam Abu Yusuf ales, say
that prohibition by reason of fosterage will apply to the woman whose milk is more.
However, Imam Muhammad al das, says that it will apply to both woman. One tradition
ascribes this opinion to Imam Abu Hanifah als, too. Indeed, this opinion is more correct
and nearer safe side.
. If milk of both the women is equal then the agreed opinion (of these three imams) is that
prohibition by reason of fosterage will apply to both of them.
· If a woman uses her milk to prepare dilute curd, yoghurt, cheese, etc. and feeds the
preparation to a child then it does not occasion a prohibition because this does not

270
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
imply suckling.
· A woman of a village suckled an infant girl. After some time, no one remembered who the
woman was. Then, later a man of the same village married the girl. The marriage is lawful.
. Woman must not suckle any child unnecessarily. If they do, then they must remember it
or write it down.
(It is common with woman that they put a child of another woman to their breast and
suckle it. They do not remember it later and are not serious about it. In this way, the
forbidden degrees of fosterage are neglected and violated. So it is necessary that they
. exercise caution in this regard.)
It does not matter whether milk is suckled before (child's marriage) or afterwards, the
prohibition by reason of fosterage is occasioned. It makes no difference whatsoever when
the child was suckled. Suppose a man marries an infant girl and after that his mother (real
or foster) suckles this girl. Or his wife - or, his sister or daughter suckles her. This child is
now forbidden to this man and it will be wajib (obligatory) for him to pay her half her dower
which he shall demand from the woman who had suckled the child if she had done it to
create mischief and annul the marriage. If she had intended no mischief then he will not
demand any thing from her (for, she may have been sympathetic).
· A man marries two infant girls. Later a stranger woman suckles both of them together or
one after the other, then both the girls will be forbidden to the man, their husband (because
of fosterage). Thereafter, he may, if he wishes, marry one of them.
. If in the previous case, he marries (not (two) but) three infant girls and the woman
suckles all three together, all three will be forbidden to him. Later, he may marry one of
them, if he chooses.
. If she suckles the three girls one after the other, then the first two will be forbidden to
him and the third will remain his wife.
. If she suckles two girls together and then, after that, the third, the same command will
apply as the foregoing.
. If she suckles one of them first and afterwards the other two together, then all the three
are forbidden to him. It is wajib (obligatory) on him to pay half the dower to each of them.
He will demand this from the woman who had suckled the girls provided she had done
that to create mischief.
. If there were four girls whom the man married and the woman suckles all of them one
after the other or all together, all four are forbidden to him.
. If she suckles one and then the three together, the same command applies.
. If she suckles three at one time first and afterwards the fourth, then the fourth will not be
forbidden to him.
· If a man marries a grown up woman and an infant girl, and the woman suckles the
infant, both of them will be forbidden to the husband. If he has not had a sexual intercourse
with the woman then she will get no dower. It will be wajib (obligatory), however, to pay
half her dower to the infant. He will get it from the elder woman provided she had done it
to create trouble otherwise nothing will be demanded from her even if she was aware that
the infant was her husband's wife.
. The proof of suckling is in one of two things:
(i) A woman admits that she had suckled so-and so.
(ii) Witness testify to the fact. This may be by two men or one man and two women.
The separation of the couple (because of prohibition by reason of fosterage) is enforced by

271
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
the command of a judge. When two men who are just or one man and two woman testify
that (a certain) husband and wife are related through fosterage, the judge may separate
them on the basis of their testimony. If no sexual intercourse took place between them, then
the woman will get no dower at all. If they have had a sexual intercourse then it will be
wajib (obligatory) on the husband to pay her the lesser amount of the two: mahr with or
mahr-e-muayyin (proper dower or specific dower). No maintenance will be wajib
(obligatory) on him.
. If two just men, or one man and two woman, testify before a married woman, after the
marriage is contracted, that there existed between her and her husband a relationship
through fosterage, then she is not allowed to live with him because this testimony is correct
and the judge would accept it if it were presented to him. If only one man gives this
testimony of the woman and she see seems inclined to believe him then she must keep
away from her husband. It is better but not wajib (obligatory).
. A man marries a woman. But another woman comes afterwards and tells them, "I had
suckled both of you." They have four options:
(i) If they believe the woman then their marriage is corrupted. The wife would get
no dower at all if they did not have a sexual intercourse.
=
(ii) If they do not trust the women, then the marriage will remain intact. However,
if the woman is just then, to be on the safe side, the husband must separate from his wife. If
he divorces her then he must give her half of her dower. It is good for the woman that she
takes nothing, provided they have not had sexual intercourse. If they did have a sexual
intercourse already, then it is better for the man to pay her the full dower and maintenance
allowance (for the duration of her iddah or waiting period). It will be better on the part of
the woman to ask for the lesser of the two, mahr mithl or mahr mu'in and to retrain from
taking the maintenance allowance. However, if the husband does not divorce his wife, then
it is allowed to the woman to stay on with him.
. If the testimony is unreliable, say by two women, or one man and one woman, or two
unjust men, or one unjust man and two woman, about fosterage, then the same command
applies that it is better for the husband to divorce his wife.
(iii) If the husband trust that woman but his wife does not, then the marriage will
be void. He will have to pay the dower.
(iv) If the wife believe that woman but her husband does not, then the marriage
will remain intact but it is necessary for the wife to adjure her husband (that he really does
not trust that woman). If he refuses to confirm on oath then they will be separated .
. A man marries a woman. Then he says about her that she is his foster sister or some
other foster relative. Then he retracts, saying that he was confuses and he was confused
and what he had said was wrong. So, a lenient view will be taken and they will not be
separated, provided he sticks to his retraction (that whatever he had said was wrong). But,
if he sticks to his first statement and asserts that he had spoken the truth, then both of them
will be separated and if he denies after that then it will be of no use.
. If the woman confirms her husband's statement, then she will get no dower (if they did
not have a sexual intercourse).
. If she denies his statement, then he will have to pay half her dower as wajib (obligatory) (if
he had not had a sexual intercourse with her). If he did have a sexual intercourse with her
and she belies his statement then it is wajib (obligatory) on him to pay her full dower and
maintenance allowance.

272
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
. If a man decides to marry a woman but says before they marry that they were foster
siblings or she was his foster mother, but retracts his statement afterwards on the plea that
he was mistaken, then he is allowed to marry her.
. If he does not retract his statement but sticks to it then he is not allowed to marry her.
. If he marries her in spite of that, then they should be separated.
. If he denies having made a statement (to the effect that she was his foster sister or mother)
but two witnesses bear out that he had made that statement, then they will be separated.
. If a woman say about a man that he is her foster father or foster brother, etc. but the man
denies it and the woman also goes back on her previous confession then he is allowed to
marry this woman.
. If in the foregoing case, the man marries her before she retracts her statement then their
marriage will be correct.
. If a man say about a woman (who is his wife) that she is her blood or real relative, like
real mother or real sister or real daughter and no one knows this woman's lineage and the
man could likely be as he says (and she might be his mother etc.) this man will be asked
again about it and if he says that He was mistaken or was confused then, being soft on him,
the marriage will not be disturbed. If, on being asked again, he says that his first statement
was correct, then both of t hem will be separated.
. If the man does not seem to be as he says (and their ages are so far apart that what he
says cannot be possible) and the woman's age shows
That she cannot be his mother, or real sister, the relationship will not be proved and the
two will not be separated.
. if t he man says that she is his real daughter and then does not deny it but persists on
what he says though the people know the parentage of t he girl (that she is someone else's
daughter) , so they will not be separated. The same applies when he claims that she is his
mother but people know it to be otherwise.
4. WOMAN TOGETHER: They are woman who when they are with other woman qualify
as muharamat (forbidden degrees).
There are of two kinds:
(i)
Stranger (or unrelated) woman.
(ii)
Dhawat ul Ahram (cognate relations).
(i) Having stranger woman together means to take more wives than are permitted by :
(divine law).
Shariah had permitted a free man to take four wives at a time. The slave had permission to
marry two woman at a time.
Hence no freeman, has permission to have at one time more than four women as his wives.
And, no slave has permission to have more than two wives at one time.
It is allowed to a freeman to have as many female slaves (without marrying them) as he
likes at any one time. But, a slave is not allowed to have female slaves at all, even if his
master permits him to have them.
A freeman is allowed to marry, at a time, four women. These four may be freewomen on
female slaves or of both kids together.
. If a man marries five women, one after the other, the marriage of the first four is lawful
while the fifth marriage is illegal. But, if he marries all five together with one contract then
all the five are illegal.

273
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
.
. The same ruling applies to the three marriages of a slave. (If he marries three women,
one after another, the first two will be correct but not the third and if he marries all three
with one contract then all three will be void.)
. If an enemy disbeliever had married five wives and all of them (the man and his wives)
embrace Islam then it depends on how he had married them. If the five marriages followed
one after the other then the first four are valid while the fifth is repudiated. But, if he had
married all five by one contract together, then all of t hem will be separated from him, all
five marriages being invalid.
. If a man marries one woman and later he marries four others together then only the first
continues to be valid while the four are not proper.
. If a woman marries two men by one contract and one of them ready has four wives, then
her marriage will be correct with the other (who does not have four wives).
. If, in the foregoing case, both men already have four wives - or none of them has four
wives before hand - then neither or her marriage is correct.
(ii) Having together dhawil arham. It is to have two wives who are cognate and blood
relatives of one another. It is forbidden to have two sisters as wives at one time. It is also
forbidden to have two sisters as female slaves and cohabit with them. (If one has two sisters
among one's slave then one must not have sexual intercourse with both of them. We will see
more about it in the lines following.) These two may be real sisters. The command is alike.
CRITERION: The standard to decide this issue is that of the two related women, one may
be supposed to be a man and then it must be seen whether their marriage would be correct
as husband and wife. Their relationship may be real or foster. If their marriage would not
be proper then it is not allowed to have both the women together as one's wives.
In the same way it is forbidden to have a woman and her real or foster aunt together in
marriage. (This applies to both, paternal and maternal aunt.)
Other relatives of this kind are also covered by this prohibition. It is disallowed to have
them together in marriage at the same time.
. It is allowed, however, to have as one's wife a woman as well as the daughter of her previous
husband (from his other wife and not this woman's). The reason is clear from the criterion:
[If this woman were a man, it would have been permitted to 'him' to marry this girl.]
But, the converse is not allowed:
[If that girl were a man, it would be forbidden to marry 'his' father's wife.]
. A man is allowed to have a woman and her female slave together in marriage provided
he had married the female slave first.
. If a man marries two sisters with a single contract then (the marriage is void and) both of
them will be separated from their husband not consummated the marriage then they will
get no dower.
. If he had cohabited with then before being separated then they will each get the lesser of
mahr mithl and mahr mu'in (proper dower and specified dower)
. If a man marries two sisters at different times by separate contracts, then the second
marriage would be invalid. The husband must separate from her and if he does not, then
the judge must have them separated on learning of it. If this separation takes place before
they could have sexual intercourse then none of the commands of separation will be
enforced (like dower and iddah, etc). If, before they separated, he had sexual intercourse
with her, then the lesser of mahr nihl and mahr mu'in would be paid and it would be wajib
(obligatory) on her to observe the iddah. If a child is born to her then it be attributed to him.

274
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
Also, he will have to keep away from his (first) wife till her sister completes her iddah.
· If a man marries two sisters by separate contracts, meaning one after the other, but it
cannot be determined which of the two he married first, then he will be commanded to
disclose it. If he states (and name the first and second wives) then his statement will be
followed (and the first wife will be retained and the second sister's marriage will be
declared null and void). If he two cannot say then the judge will separate both of them
from their husband. After that both of them will get half and dower provided their dowers
are equal and were determined at the time of the contract, and their separation may have
taken place without their having had sexual intercourse.
If their dowers are unequal, then each will get one-fourth of the other's dower.
If their dowers were not determined at the time of the contract (of marriage) then, instead
of half dower, each will get a pair of garments.
If their separation occurs after they had experienced a sexual intercourse, then each will get
her full dower.
Abu Ja'far Hindwani als, said that the aforesaid ruling applies when each of them claims
that her marriage preceded the other's and none of them has any witnesses. Both will be
given half the dower. However, if both of them deny knowledge of whose marriage took
place before the other's then a final decision about them would be held in abeyance till they
agree on something and make peace. This will be done when they go to a judge and say,
"Our dowry is wajib (obligatory) on our husband and there is no third claimant with us in
our demand. So, we agree between us to receive half of the dower." The judge will then
pass the judgment.
If each of them claims to have been married first and presents her witnesses then it is wajib
(obligatory) on the husband to pay half of the dower between both of them. All the ulama
(Scholars) are unanimous about it.
Moreover, these commands about two sisters in marriage together are applicable to all
such women marrying whom together is forbidden.
. If this man from whom two sisters married to him were separated wishes to re-marry
any one of them, then he may marry her provided he did not have sexual intercourse with
her before separating.
. If their separation took place after they had a sexual intercourse then it is not allowed to
him to marry her till both sisters have passes their waiting period (or iddah).
. If one is still passing her iddah and the other has passed it, then he can marry the sister who
is in her iddah. He can marry the other only after her sister who is in iddah comes out of it.
. If before they separated, the man had a sexual intercourse with only one for the two
sisters (his wives) , then he is allowed to marry the one with whom he had a sexual
intercourse.
. If he wishes to marry the other with whom he did not have a sexual intercourse, then he
is not allowed to marry her till the iddah of her sister with whom he had had a sexual
intercourse is over.
. When the iddah of the sister with whom sexual intercourse was had is over then he may
marry any of the two sisters he likes.
. In the same way as it is disallowed to marry two sisters at one time, so too it is not
allowed to have sexual pleasure with two female slaves who are sisters (touching,
embracing, having intercourse, etc,) In other words, if a man possesses two female slaves
both sisters then he should not have sexual pleasure from both of them. Rather, he may

275
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
have sexual intercourse and pleasure with any one of them only because it is forbidden to
have it from the other after one of them is chosen for it. He can only enjoy the second sister
when he has forbidden the first to himself.
. Similarly, if a man buys a female slave and has sexual intercourse with her and of towards
he buys her sister, too then he can have sexual intercourse only with the first. He is forbidden
have it with the second. He can enjoy her only after he forbids the first to himself.
The method of forbidding a female slave to oneself is:
-
to marry her to someone,
- to remove her from one's ownership,
to set her free,
to give her to someone as a gift,
to sell her,
- to make a charity of her,
- to contract a mukatib with her.
It must be known that to set some of her free is like setting all of her free. (For example, if an
owner tells his female slave that he has set half of her or on-fourth of her free then it is
tantamount to setting her free completely. And sexual intercourse will be forbidden with her.)
In the same may removing some of her from one's ownership is tantamount to removing
all of her from one's ownership.
If he says simply, "The first is forbidden to me then it does not permit him to have sexual
intercourse with the other. It is the same thing as when the second does not become lawful
because of the menstruation of lochia and ihram of fasting of the first.
. If a man has had sexual intercourse with each of the two slave sisters in his possession
then he can no more have sexual intercourse with either of them unless he forbids one of
her to himself in the foregoing method.
. If a man sold one of the two slave sisters in his possession, but she was returned because
of a defect in her,
or, he had presented her to someone, but cancelled his gift,
or, he had given her in marriage to someone, but her husband divorced, her and
her iddah is over,-
in these cases the man cannot have sexual intercourse with either of them without
first forbidding one of them to himself.
· If a man marries a female slave but before having a sexual intercourse with her, he
purchased her sister, too, then it is unlawful for him to obtain sexual pleasure with the
female slave he has purchased. The reason is that the prerogative of being a wife is
established through marriage. So, if he has a sexual intercourse with the newly purchase
female slave then it will amount to giving the right of wifehood to two sisters at one time
which is forbidden.
. If a man has sexual intercourse with his female slave and then marries her sister then his
marriage is correct. Given that, he must not have sexual intercourse with the female slave
even if he has not had a sexual intercourse with his new wife. Moreover, he must not have
a sexual intercourse with his wife until he forbids his female slave (the sister of his wife)
himself according to the foregoing method.
. If he marries the sister of his female slave without having a sexual intercourse with the
female slave then he may have a sexual intercourse with his wife (the sister of his female slave).
· If a man has a sexual intercourse with his female slave and then marries her sister but

276
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
that marriage was broken for some reason then the female slave will not be forbidden to
her on that account. But, if he has a sexual intercourse with his wife (his slave's sister) then
it is forbidden to him to have a sexual intercourse with the female slave.
. If two sisters say to a man, "We give ourselves to you in marriage for so much dower" and
both speak out these words together and he accepts one of them then this marriage is allowed.
. If this man says to both these sisters, "I marry each one of you against rupees one thousand
each," One of them accepts and the other rejects him, then both marriages are void.
. Imam Muhammad ale>, said about a man that he appointed a man as his agent to get
him married. Later, he appointed another man for the same purpose. Both of them chose a
woman each and contracted his marriage without the permission of these women, Later, it
transpire that they were foster sisters and both the agents had uttered the words of
marriage simultaneously. In this case, both their marriages will be void.
. If in the foregoing case, the marriage was performed with the permission of both the
women or of one of them and not the other, then the same command applies.
. A man, zayd marries two sisters though one of them was already married to another
man or was divorced by him and was till the in her iddah or waiting period. In this case,
Zayd's marriage will be valid only with the other sister (the unmarried one).
· A man divorces his wife or resorts to one of the kind of steps to divorce, or his marriage
to her is annulled for some reason, or he falls in doubt and has sexual intercourse with a
woman. In short, the woman passes her iddah. During this period of the woman's iddah
(waiting period), this man cannot marry her sister.
. In the same way, as it is not allowed to him to marry her sister during her iddah (waiting
period), so, too, he is disallowed to marry any of her related woman who falls under the
category of dhawal arham and her marriage at the same time as this woman to him is unlawful.
For example, during her iddah (waiting period) it is forbidden him to marry her niece.
· In the same way, he is not allowed to have as wife four women beside her during her
iddah (waiting period).
· If a man sets free his female slave who was an umm walad (meaning, mother of his
child) then till her iddah (waiting period) is over, it is not allowed to him to marry her
sister. However, Imam Abu Hanifah alter, holds that during her period of iddah (waiting
period), he is permitted to marry four women apart from her moreover, the two disciples,
.
Imam Abu Yus'uf alus, and Imam Muhammad als, hold that during the iddah (waiting
period) he may even marry her sister.
. If a man quotes his divorced wife as saying that her waiting period after divorce (Iddah
(waiting period)) is over (so he can marry her sister) , then it will be calculated how many
days had passed since her divorce. If he required number of days have not passed then he
should not be believed. Similarly, his divorced wife should not be believed. However, if
she speaks of some other reason for her iddah (waiting period) to have been over then her
words would be believed, like her citing her miscarriage. Beside if the number of days
seem to have passed for the iddah (waiting period) to be over and the woman confirms her
husband's statement or she is not there then he may be trusted. In that case, he would be
permitted to have four other women as wives or to marry hi wife's sister.
In fact, that Hanafi scholars maintain that if the wife belies her husband, in the this
situation, even then word of the husband would be believed.
. If a man's wife apostates and goes away to an enemy land, then he is allowed to marry

277
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
her sister without waiting for the iddah (waiting period) of the woman to end. It is like
being allowed to marry the sister of one who dies. Later, if that apostate woman returns
from enemy territory having reverted to Islam, the marriage of her husband to her sister
will not be revoked.
. If, in the foregoing case, she returns before he marries her sister, then according to Imam
Abu Hanifah &id>, , even this situation he is allowed to marry her sister. But, Imam Abu
Yusuf at , and Imam Muhammad both, contend that he cannot now marry her sister
(when this situation arises before he could marry her).
· It is not allowed to have as wives at one time two such women as are paternal aunts or
maternal aunts of one another. For example, Zayd married Amr's mother and Amr married
Zayd's mother. Both couples had daughters born to them. Each girl was the paternal aunt
of the other. Or Zayd married Amr's daughter and Amr married Zayd's daughter, so each
daughter was the maternal aunt of the other.
In each of these cases it is unlawful to have both of them as wives at one time.
. Suppose that a man marries two women. One of them was forbidden to him for one of
these reasons:
-
She was a muhrim of him
- She was already married, or
-
She was an idol worshiper. The other was permitted to him in marriage.
Hence, in this case, his marriage to the latter is correct, but void to the former. The specified
dower will be paid in full to one whose marriage is correct. This ruling is based on the
contention of Imam Abu Hanifah &m.
. If in the foregoing example the man has a sexual intercourse with the woman to whom
his marriage was not lawful then she will get the dower mahr mithl whatever the amount.
As for the other whose marriage was correct, she will be paid the entire dower.
5. BEING OWNED: This is about the female slaves whom it is forbidden to marry if one
already has a free woman as a wife.
It is also forbidden to marry a free woman and a female slave at one time.
The same applies to a mudabbarah and to a umm walad.
(A mudabbarah is a female slave to whom her master says 'you are free after my death,' An
umm walad is the female slave who begets her master's child.)
If a man marries a free woman and a slave by a single contract, then the marriage with the
free woman will be correct but the marriage with the female slave will be void, provided
the free woman is one with whom he is permitted to marry (not of the forbidden degrees).
However, if the free woman whom he marries if of a forbidden degree, like an aunt, then
his marriage with the female slave will not be void.
. If a man divorces his wife who is a free woman with talaq ba'in (irrevocable divorce) or three
pronouncements and while she is in her iddah (waiting period) (waiting period) , he marries a
female slave, then according to Imam Abu Hanifah ato>, , this marriage is disallowed. But,
Imam Abu Yusuf ats», and Imam Muhammad aues, hold that it is permitted.
· If a ma marries a female slave after divorcing his wife with talaq raj'I (revocable divorce)
and she is observing her iddah (waiting period), then the unanimous opinion is that his
marriage with the slave is not lawful.
· If a man marries a female slave as well as a free woman who was observing her iddah
(waiting period) for a broken invalid marriage or a doubtful marriage, then the marriage

278
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
with the female slave will be correct.
· A ma divorces his wife, a female slave, with a revocable divorce and during her iddah
(waiting period) marries a free woman and also revokes the divorce of the female slave (to
take her back as his wife). This is permitted.
.
A slave marries a free woman without his master's permission and has sexual
intercourse with her. Again, without his master's permission, he marries a female slave.
Then his master gives him permission for both marriage. In this situation, the marriage of
the free woman is correct but that of the female slave is void.
· A man marries the female slave of another person but did not obtain his permission. He
also did not consummate the marriage with her. Then he marries a free woman, too, after
which the female slave's owner gave his consent. In this case, too. The marriage with the
female slave is void.
. A man marries a female slave without the permission of her master. After that he
marries her daughter who is a free woman. Meanwhile, the master of the female slave gave
his permission for her marriage. The marriage of her daughter is correct but her own
marriage is void.
. A man has an adult daughter and an adult female slave. He says to a man, "I marry both
of them to you against 'so-much' dower." The man accepts to marry the female slave, but
this marriage is void.
. If he accepted to marry the free woman after that, then this would be valid.
· If a man is able to marry a free woman but, in spite of that, marries a female slave who is
a Muslim or a Jew or a Christian (one of the Peoples of the Book) , the marriage will be
correct. However, it is mukruh to marry a female slave if one is capable and competent to
marry a free woman.
. If a man marries through a single contract four female slaves and five free women, then
only the marriage with the female slave would be proper.
5. WOMAN ON WHOM OTHERS HAVE A RIGHT: It is forbidden to marry those
women on whom other men have a right. These are a woman who is:
- married to someone,
- observing an iddah (waiting period) for someone, of divorce, death of husband,
broken marriage which was consummated, or if which there was an uncertainty.
It is not permitted to marry such woman.
. If anyone unknowingly marries another man's wife and also has sexual intercourse
with her, then on separating, the iddah (waiting period) will be wajib (obligatory) on the
woman to observe.
. If that man knew that she was someone else's wife then on separating from him the
iddah (waiting period) will not be wajib (obligatory) on this woman. Her husband will not
be disallowed to have sexual intercourse with her.
. If her husband divorces her then the (other) man responsible for her iddah (waiting
period) is permitted to marry her during her iddah (waiting period) provided she is not
precluded from marrying by any other reason.
. If a woman is pregnant after having committed adultery then it is allowed to marry
her. However, until she is pregnant and does not deliver her child, her husband is not
allowed to have sexual intercourse with her and to do everything that leads to it (like
kissing, touching, etc).
. If the man who committed adultery with her and is responsible for her pregnancy

279
Translation & Commentary of MISHKATUL MASAABIH
Vol.3
marries her then their marriage is correct. Also, he is allowed to have sexual intercourse
with her even before she delivers a child. The woman deserves maintenance allowance.
· A man marries a woman. After some time she had a miscarriage and the limbs were
observed duly formed. If the miscarriage had taken place after marriage by four months or
more then that, then the marriage is lawful. It is took place in less then four months then
the marriage is not lawful, because the limbs of the foetus do not develop in less than four
moths. (In the former case, the woman is deemed to have conceived her husband's child,
but in the latter case, she would have conceived before their marriage someone else's child.
Clearly in that case, this marriage cannot be valid,)
. If a woman is known to have conceived a child of someone legitimately then the
unanimous decision is that it is not allowed to marry her.
. Imam Abu Yusuf als, reported that Imam Abu. Hanifah alos, said that if a woman
conceives a child of a disbeliever of the enemy and emigrates or is brought to the Islamic
territory as a slave then it is allowed to marry her, but it is not allowed to have sexual
intercourse with her till she delivers her child. While Imam Tahawi ale>, abides by this
very opinion, Imam Muhammad als, has cited another tradition of Imam Abu Hanifah
altas, that it is not allowed to marry in this case. Imam Karkhi atdas, goes by this opinion (of
Abu Hanifah) ales,. This opinion moreover is better and reliable.
. If a man marries his umm walad to another man though she was pregnant by her
master, then this marriage will be invalid.
. If she was not pregnant then it is proper.
· A man has sexual intercourse with his female slave. After that, he gives her in marriage
to another man. This marriage is legal but it would be mustahab (desirable) (better) for the
master to get the husband to delay sexual intercourse with the female slave till she gets her
menstruation in order to preserve his child if she has conceived. But, since the marriage is
allowed, it is also allowed to the husband not to wait for her menses before having sexual
intercourse. This is as the opinion of Imam Abu Hanifah ale, and Imam Abu Yusuf als).
As for Imam Muhammad als, , he said, "I do not like that her husband should not wait
for her menses before having sexual intercourse with her." The jurist Abu Layth &t das,
preferred the opinion of Imam Muhammad altas, to be on the safe side.
. However, these opinions concern the case when the master has given her in marriage
without having her first experience her menses.
. If the female slave did have her menstruation after the master has copulated with her
and before she was married then it is the agreed opinion that her husband need not wait
anymore before having sex with her.
. A man sees a woman commit adultery and then marries her himself. In this case, Imam
Yusuf ales, say that he is allowed to have sexual intercourse with her without waiting for
her first menses after marriage. But Imam Muhammad alda>, said the same thing as before
that the husband should preferably wait for one menstruation of his wife.
. If a man marries the female slave of his son then the Hanafis allow it.
. If a woman is brought from enemy territory to the Islamic state as a captive and her
husband was not with her then it is not wajib (obligatory) for her to observe an iddah
(waiting period) and any man may marry her.
. In the foregoing case if the woman had embraces Islamic then according to Imam Abu
Hanifah ales, she too need not observe the iddah (waiting period) and any man may marry