Chapter One
Characteristics of the Spouses/Husband and Wife
(A) Suitability (kafā’ah) in religion
1328. It is not allowed for the Muslim woman to marry a non-Muslim, even if they are still young, whether the man is from the People of the Book or not, or a mortadd (apostate/deserter) who is either ‘an fitrah (a born-Muslim deserting Islam after bolūgh) or ‘an millah (a born-non-Muslim deserting Islam after embracing it after bolūgh), and whether the marriage is a permanent marriage or a term marriage. In the case where a Muslim woman who is still a Muslim marries a non-Muslim, she is regarded – in the Shari’ah – as an adulterer and her children are illegitimate, but if she insists on staying with him – in spite of that – she is not regarded as a mortadd unless she believes in non-Muslim beliefs and embraces them as her religion.
1329. It is not allowed for the Muslim man to marry an atheist woman, nor a mortadd from Islam to other religions – including if her irtidād (becoming a mortadd) was to Judaism or Christianity – whether her irtidad was either ‘an fitrah (a born-Muslim deserting Islam after bolūgh) or ‘an millah (a born-non-Muslim deserting Islam after embracing it after bolūgh); even the Zoroastrian (Majūsi) woman as an obligatory precaution. With the woman from the People of the Book – Jews and Christians –however, marrying her in a term (mot’ah) marriage is allowed, but marrying her in a permanent marriage is allowed only as long as it is not in the presence of a Muslim second wife, in which case the man must get the permission of the Muslim wife; although it is better to abstain from marrying a woman from the People of the Book in both cases (on her own or upon the permission of the Muslim second wife), since it might affect the religious and spiritual stability of the family.
1330. Just as atheism prevents marriage when it (atheism) exists at the start, its occurrence during marriage invalidates the marriage in general as will be explained.
1331. There is no objection that the man or woman marries another who follows a different school of thought if they are not nāssibi (a person who is an enemy of the progeny of the Prophet (sawa) who are Fātimah (as) and the twelve Imams (as)) or moghāli (a person who has false beliefs (exaggerates in his belief) that the twelve Imams (as) have some divine attributes or powers) and it is not feared that marriage would affect the adherence to the truth in which they believe.
1332. It is more appropriate for each of the man and woman to choose for their marriage someone who has belief and good morals, and to abstain from marrying from amongst non-believers, especially if he is bad mannered and drinks alcohol. It was narrated that the Prophet (sawa) said: ‘If (it is) someone whose piety and manners meet your satisfaction, then accept his marriage proposal; and if you do not do that a fitnah (= test of unfavourable consequences) and great corruption will take place,’ and he said: ‘Whoever drinks alcohol after Allah prohibited it through ‘‘my tongue’’ (i.e. my commands) is not worthy of marrying (the woman) when he proposes.’ It was also narrated that he (sawa) said: ‘Beware of khadra’ ad-Diman!’ So, they asked him: ‘What is khadra’ ad-Diman?’ He said: ‘The beautiful woman who was brought up in a bad environment.’
(B) Relatives whom it is forbidden to marry
This is to explain the rulings relating to marriage with relatives, some of whom are related through ancestry and kinship (nasab, i.e. cousins etc.), some through breastfeeding and some through marriage (sihr or mosāharah, i.e. in-laws).
Part 1: Who is forbidden due to ancestry and kinship (nasab)
1333. It is forbidden for seven types of women to marry seven types of men:
1- The mother, who is, in addition to the immediate mother –: every female from which the two parents have been born, and so on upwards through the line of ancestry, so this covers a man's grandmother from his father’s side and grandmother from his mother’s side and his great-grandmother from his father’s side and great-grandmother from his mother’s side, and so on. Also forbidden to marry her are all males to whom she gave birth and males who are the children of her male or female children and so on downwards in the line of ancestry through her grandsons and granddaughters, such as her immediate son, her grandson from her son’s side, her grandson from her daughter’s side, her great-grandson from her son’s side and her great-grandson from her daughter’s side, and so on.
2- The daughter, who is: the immediate female born to the man and all grandchildren who were born to his sons or daughters, so forbidden for the father is his immediate daughter, also forbidden for him is whoever to whom he is her grandfather from the father’s side and grandfather from the mother’s side – and so on upwards through the line of ancestry – i.e. the daughter of his son and the daughter of his daughter, the daughter of the son of his son, the daughter of the son of his daughter, the daughter of the daughter of his son, the daughter of the daughter of his daughter, and so on down the connected ancestry in both male and female or mixed lines; so whenever there is a female that has been born in his ancestry, she is regarded as a daughter to him and unmarriageable.
3- The sister, who is forbidden to her brother from her two parents, or from her mother only (i.e. half-brother) or her father only (i.e. half-brother).
4- The niece (on the brother’s side), who is: every female that belongs by birth to the immediate family of his brother from both of his parents, from his father only or his mother only, or by birth from his nephews and their children however the line of ancestry continues, whether all those in the line are male, all are female or mixed, such as the daughter of his brother’s son, the daughter of his brother’s daughter, and the like; so a woman is forbidden to her uncle (father’s side – ‘amm in Arabic), her father’s uncle (father’s side), her mother’s uncle (on her father’s side), her grandfather’s uncle (father’s side) or her grandmother’s uncle (father’s side), and so on wherever the ancestry of this brotherhood from her parents and grandparents into which she was born continues upwards.
5- The niece (on the sister’s side), who is: every female that belongs by birth to immediate or more distant family of his sister from both of his parents, from his father only or his mother only. So a woman is forbidden to her uncle (mother’s side), her father’s uncle (on his mother’s side – khāl in Arabic), her mother’s uncle (mother’s side) and her grandfather’s uncle (mother’s side), as detailed regarding the niece from the brother’s side.
6- The aunt (on the father’s side – ‘ammeh in Arabic), who is: every female that is a sister to the person’s immediate father or a sister to one of his father’s fathers or mother’s fathers, and so on upwards through the line of ancestry, whether she is his sister from both his parents or from one of them only. So, a woman is forbidden to her nephew (brother’s side), the son of her nephew (brother’s side) and the son of her niece (brother’s side). In other words: it is forbidden for the man to marry his aunt (father’s side), his father’s aunt (father’s side), his mother’s aunt (on her father’s side), his father-side and mother-side grandfather’s aunt (father’s side), his father-side and mother-side grandmother’s aunt (father’s side), and so on wherever the line of ancestry of the fathers from his father’s or mother’s side continues upwards.
7- The aunt (on the mother’s side – khālah in Arabic), who is: every female that is a sister to his immediate mother or to one of his mother’s father’s or mother’s mothers and so on upwards through the mother's line of ancestry, as detailed in the aunt (father’s side).
1334. A brother’s sister or a sister’s sister is not always unmarriageable: if you have a brother or a sister from your father from a wife other than your mother, and his wife has a daughter from a man other than your father, in this case this daughter is your brother’s sister from his mother, but not your sister neither from your father nor mother, so she is not an unmarriageable woman. Apart from this situation, your brother’s sister and your sister’s sister is always your sister provided that she is related to you from your father’s side, mother’s side or both of them.
1335. In most cases, your aunt’s aunts, from both your father’s side and mother’s side, are your aunts; however, this is not always the case. An example of the aunt (on the father’s side) is: if a woman is a sister to your father from his mother only, she is definitely your aunt, and since the father of this aunt of yours is not your grandfather, therefore his (the grandfather's) sister is an aunt (father’s side) of your aunt, but she is not your aunt as long as her father is not a grandfather of yours. An example of the aunt (on mother’s side) is: if a woman is a sister to your mother from her father only, she is definitely your aunt, and since the mother of this aunt of yours is not your grandmother, therefore her (the grandmother's) sister is an aunt (mother’s side) of your aunt, but not your aunt as long as her mother is not a grandmother of yours.
Although such matters contain difficulty, they become clear after reflection and thinking; we mention them here only because they face people regarding the intermingling of relations and kinship.
1336. The matter in ancestry and kinship (nasab) is not different when it is the result of valid marriage as opposed to adultery or intercourse of dubious legality (wat’ shobhah), which we are going to discuss later in this section (no. 1419).
Part 2 : Who is forbidden due to breastfeeding (redā‘)
If a baby was breastfed the milk of a woman who did not give birth to him in a way that is subject to conditions which will be mentioned later, then because of this breastfeeding, a kinship takes place between this breastfed baby (rad i’) and a number of men and women that makes it forbidden for them to marry each other; since this must be observed when choosing a spouse, it is essential to know in detail who is forbidden through breastfeeding so that the rulings can be followed. (See no. 1435 and after for the conditions of breastfeeding.)
So if breastfeeding that meets the condition is established, the so-called ‘milk owner’ (sāhib al-Laban) – who is the husband of the breastfeeding woman, whose milk resulted from her pregnancy from him – is a father to the breastfed baby and the breastfeeding woman a mother, and a relationship results which we discuss as follows:
First: Who is forbidden from the side of the milk owner and the breastfeeding woman
1337. Forbidden to the breastfed male are several women:
1- The breastfeeding woman, since she is his mother through breastfeeding.
2- The breastfeeding woman’s mother and so on upwards through the line of ancestry, whether biological or through breastfeeding, since a woman can be his grandmother through breastfeeding.
3- The biological daughters of the breastfeeding woman, because they are his sisters through breastfeeding; however, her daughters through breastfeeding whom she breastfed using the milk 'owned' by a man other than the one whose milk he was breastfed on are not forbidden to him; this is based on the condition – that will be discussed – that the milk owner must be the same for the prohibition of marriage between two breastfed persons.
4- The biological and breastfeeding daughters of the children of the biological children – males and females – of the breastfeeding woman, since the breastfed person will either be their uncle (father’s side, i.e. ‘amm) or uncle (mother’s side, i.e. khāl) through breastfeeding.
5- The breastfeeding woman’s sisters, even if through breastfeeding, since they are the breastfed person’s aunts (mother’s side, i.e. khalat).
6- The breastfeeding woman’s aunts (mother’s and father’s sides) and the aunts (mother’s and father’s sides) of her fathers and mothers, biological or through breastfeeding, since they are aunts (father’s side, i.e. ‘ammāt) or aunts (mother’s side, i.e. khālāt) of the breastfed person through breastfeeding.
7- The daughters, biological or through breastfeeding, of the milk owner, within or outside his immediate family, because the breastfed person will either be their brother, or uncle (father’s side or mother’s side) through breastfeeding.
8- The mothers, biological or through breastfeeding, of the milk owner, because they are the breastfed person’s grandmothers through breastfeeding.
9- The sisters, biological or through breastfeeding, of the milk owner, because they are the breastfed person’s aunts (father’s side) through breastfeeding.
10- The aunts (father’s side and mother’s side) of the milk owner and the aunts (father’s side and mother’s side) of his father and mother, biological or through breastfeeding, because they are the breastfed person’s aunts (father’s side or mother’s side) through breastfeeding.
1338. Forbidden to the breastfed female are several men:
1- The milk owner, since he is her father through breastfeeding.
2- The milk owner’s fathers, biological or through breastfeeding, since they are her grandfathers through breastfeeding.
3- Sons, biological or through breastfeeding, of the milk owner wherever the line of ancestry continues downwards, because she is their sister or aunt (father’s side or mother’s side) through breastfeeding.
4- The biological and breastfeeding brothers of the milk owner; since they are the breastfed person’s uncles (father’s side) through breastfeeding.
5- The milk owner’s uncles (mother’s and father’s sides) and the uncles (mother’s and father’s sides) of his fathers and mothers, biological or through breastfeeding, since they are uncles (father’s side, i.e. a‘mām) or uncles (mother’s side, i.e. akhwāl) of the breastfed person through breastfeeding.
6- The breastfeeding woman’s brothers, biological or through breastfeeding, since they are the breastfed person’s uncles (mother’s side, i.e. akhwāl).
7- The fathers, biological or through breastfeeding, of the breastfeeding woman, because they are her grandfathers through breastfeeding.
8- The biological sons of the breastfeeding woman, because they are the breastfed person’s brothers through breastfeeding.
However, the breastfeeding woman's sons through breastfeeding whom she breastfed using the milk of a man other than the one whose milk the breastfed person was breastfed from are not forbidden to her on the basis of the condition cited in 1337 paragraph 3.
9- The sons, biological or through breastfeeding, of the children of the biological children, males and females, of the breastfeeding woman, because the breastfed person will be their aunt (father’s side) or aunt (mother’s side) through breastfeeding.
10- The uncles (father’s side and mother’s side) of the breastfeeding woman and the uncles (father’s side and mother’s side) of her fathers and mothers, biological or through breastfeeding, because they are the breastfed person’s uncles (father’s side or mother’s side) through breastfeeding.
Second: Who is forbidden from the side of the breastfed person
1339. A number of the relatives, men and women, of the breastfed person – male or female – are forbidden to the breastfeeding woman and the milk owner and to some of their relatives, as follows:
1- The breastfeeding woman is forbidden to the sons of the breastfed male or female, since she is their grandmother through breastfeeding.
2- The daughters of the breastfed person, male or female, are forbidden to the milk owner, since he is their grandfather through breastfeeding.
3- Forbidden to the father of the breastfed person, male or female, are the breastfeeding woman’s biological daughters; however, the breastfeeding woman’s daughters through breastfeeding are not forbidden to the father of the breastfed person, male or female, except in the case of ‘milk unity’ which occurs when both her daughters and this breastfed male are fed by her breastfeeding, in which case it goes to no. (4) below, in which the father of the breastfed male is not forbidden to the children of the milk owner except from the angle of precaution that must be observed. 4- According to the traditional ruling, the daughters, biological or through breastfeeding, of the milk owner are forbidden to the father of the male or female breastfed person; (but) it seems that this in fact is not forbidden, although abstaining from this is more suitable as a precaution.
5- The milk owner’s mother, his grandmothers, the breastfeeding woman’s mother and her grandmothers are forbidden to the sons of the male or female breastfed person, because they are their grandmothers through breastfeeding.
6- The male or female breastfed person’s daughters are forbidden to the fathers of the milk owner and the fathers of the breastfeeding woman, because they are their grandfathers through breastfeeding.
7- The sisters of the milk owner and the sisters of the breastfeeding woman, their aunts (father’s side), their aunts (mother’s side), aunts (father’s side and mother’s side) of their fathers and mothers are forbidden to the sons of the male or female breastfed person, because they are their aunts (father’s side or mother’s side) through breastfeeding.
8- The daughters of the male or female breastfed person are forbidden to the brothers of the milk owner and of the breastfeeding woman, their uncles (father’s side), uncles (mother’s side), uncles (father’s side and mother’s side) of their fathers and mothers, because they are their uncles (father’s side or mother’s side) through breastfeeding.
9- The daughters, biological and through breastfeeding, of the milk owner are forbidden to the sons of the male or female breastfed person, since to them they are nephews (brother’s side or sister’s side) through breastfeeding.
10- The biological daughters of the breastfeeding woman are forbidden to the sons of the male or female breastfed person, since to them they are nephews (brother’s side or sister’s side) through breastfeeding.
11- The daughters of the male or female breastfed person are forbidden to the sons, biological or through breastfeeding, of the milk owner, since to them they are nieces (brother’s side and sister’s side) through breastfeeding.
12- The daughters of the male or female breastfed person are forbidden to the biological sons of the breastfeeding woman, because to them they are nieces (brother’s side or sister’s side) through breastfeeding.
1340. It has been explained – in the previous entry – who is forbidden among the relatives of the breastfed person to his two parents through breastfeeding and their relatives, but it is appropriate – to clarify more – to list who are not forbidden to them, as follows:
1- The breastfeeding woman is not forbidden to the father of the male or female breastfed person, nor to their brothers, grandfathers, uncles (father’s and mother’s sides) or the uncles (father’s and mother’s sides) of their fathers and mothers.
2- The mother of the male or female breastfed person is not forbidden to the milk owner, nor their sisters, grandmothers, aunts (father’s and mother’s sides) and the aunts (father’s and mother’s sides) of their fathers and mothers.
3- The mother of the male or female breastfed person and their grandmothers are not forbidden to the fathers of the milk owner, nor his brothers, uncles (father’s and mother’s sides) or the uncles (father’s and mother’s sides) of his fathers and mothers.
4- The milk owner’s mother, his sisters, aunts (father’s and mother’s sides) and the aunts (father’s and mother’s sides) of his fathers and mothers are not forbidden to the father of the male or female breastfed person or their grandfathers.
5- The mother of the male or female breastfed person and their grandmothers are not forbidden to the breastfeeding woman’s fathers, brothers, uncles (father’s and mother’s sides) or the uncles (father’s and mother’s sides) of her fathers and mothers.
6- The breastfeeding woman’s mothers, sisters, aunts (father’s and mother’s sides) and the aunts (father’s and mother’s sides) of his fathers and mothers are not forbidden to the father of the male or female breastfed person or their grandfathers.
7- The sisters of the male or female breastfed person, aunts (father’s and mother’s sides) and the aunts (father’s and mother’s sides) of their fathers and mothers are not forbidden to the milk owner’s father, grandfathers, brothers, uncles (father’s and mother’s sides) or the uncles (father’s and mother’s sides) of their fathers and mothers.
8- The milk owner’s mothers, sisters, aunts (father’s and mother’s sides) and aunts (father’s and mother’s sides) of their fathers and mothers are not forbidden to the brothers of the male or female breastfed person, nor their uncles (father’s and mother’s sides) or the uncles (father’s and mother’s sides) of their fathers and mothers.
9- The sisters of the male or female breastfed person, aunts (father’s and mother’s sides) and the aunts (father’s and mother’s sides) of their fathers and mothers are not forbidden to the breastfeeding woman’s father, grandfathers, brothers, uncles (father’s and mother’s sides) or the uncles (father’s and mother’s sides) of their fathers and mothers.
10- The breastfeeding woman’s mothers, sisters, aunts (father’s and mother’s sides) and aunts (father’s and mother’s sides) of their fathers and mothers are not forbidden to the brothers of the male or female breastfed person, nor their uncles (father’s and mother’s sides) or the uncles (father’s and mother’s sides) of their fathers and mothers.
11- The sisters of the male or female breastfed person are not forbidden to the sons and grandsons of the milk owner nor the sons and grandsons of the breastfeeding woman.
12- The daughters and granddaughters of the milk owner and the daughters and granddaughters of the breastfeeding woman are not forbidden to the brothers of the male or female breastfed person.
13- If a breastfed female becomes forbidden to a breastfed male as a result of being fed milk that relates to one man; this does not lead to forbidding the sisters of any of them on the brothers of the other.
It has been mentioned earlier that forbidding the children of the milk owner to the father of the male or female breastfed person is a precaution that should not be overlooked (i.e. must be observed).
1341. As is mentioned earlier, allowing the marriage of the brothers of the male or female breastfed person to the children of both the breastfeeding woman and the milk owner is limited to the situation where there is no obstacle – biological/ancestral or otherwise (e.g. marriage) – to such marriage; otherwise it is not allowed, such as if the male or female breastfed person’s brothers are children of the milk owner’s daughter, in which case they are nephews (sister’s side) to the children of the milk owner and the breastfeeding woman.
1342. In terms of the status of being forbidden due to breastfeeding, no distinction is made between the breastfeeding taking place before the contract or after it.
1343. If a man accepts that a non-unmarriageable woman is forbidden to him due to breastfeeding, and it is possible that this is the truth, he is not allowed to marry her. And if he claims that she is forbidden after his contract to her, and the woman believes him, the contract becomes invalid and a dowry of a similar contract (mahr al-Mithl) is due to her if he has already married (had intercourse with) her and she was not aware of forbidden status then; however, if he has not had intercourse with her, or if he has had intercourse with her knowledge of the forbidden status, in this case no dowry is due to her.
The same ruling applies if a woman accepts the forbidden status of a man to her, with the same details.
Part 3: Who is forbidden due to marriage (mosāharah)
These are the rulings regarding kinship formed when one person marries another, and which makes marriage to certain individuals permanently forbidden, while to the others temporarily forbidden, depending on the continuity of the marriage of the first person; the terms given to these are ‘al-hormah jem‘an’ (collective prohibition) as opposed to ‘al-hormah ‘aynan’ (particular prohibition). All this is explained as follows:
First: Who it is permanently forbidden to be married to (particular prohibition)
1344. It is forbidden for a son to marry his step-mother, and also wives of his grandfathers (father’s side and mother’s side) and so on upwards through the line of ancestry, whether he is a biological son or son through breastfeeding, and whether the marriage of the father or grandfather to the woman in question was permanent or term, and whether the wife has had sexual intercourse with the husband or not. However, if the man married her when he was on his deathbed, then died before having sexual intercourse with her, in this case she is not forbidden to marry his sons.
1345. It is forbidden for the father to marry his son’s wife; it is also forbidden for the grandfather – father’s or mother’s side – to marry the wife of his grandson and so on downwards through the line of ancestry, whether his status of fatherhood is biological or through breastfeeding, and whether the marriage is permanent or term, and whether the son has had sexual intercourse with his wife or not.
1346. It is forbidden for the husband to marry his wife’s mother, also her grandmother – father’s and mother’s side – and so on upwards through the line of ancestry, whether their motherhood is biological or through breastfeeding, and whether his marriage to the daughter is permanent or term, whether the wife is young or adult, and whether she has had sexual intercourse with him or not.
1347. It is forbidden for the husband to marry the daughter of his wife who has had sexual intercourse with him; this is a permanent particular prohibition; also forbidden are the daughters of her daughter and daughters of her son and so on downwards through the line of ancestry. Also forbidden to him is the daughter of his wife even if he has not had sexual intercourse with her mother, as long as the mother is still his wife; but if the mother dies or is divorced before he has had sexual intercourse with her, he is allowed to marry the daughter. But for the husband’s son or father, the daughter is not forbidden to them at all, whether the husband has had sexual intercourse with the mother or not.
1348. In forbidding the marriage of the daughter of the wife who has had sexual intercourse with her husband (to that husband), there is no difference between the daughter who existed during the time of the mother’s marriage and the daughter who was born after the mother’s marriage to the first husband ended; so if she marries someone else and gives birth to a daughter from the other husband, this daughter would be forbidden to the first husband. Also, regarding the daughter who exists during the time of her mother’s marriage, there is no difference between the one who lives under the care of her mother’s husband and the one who lives away from him.
On the pertinence of sexual intercourse, there is also no difference between the case where this is with his intention and free will and the case where he is forced to do so or unaware when it happened, nor between sexual intercourse in the vagina or in the anus. However, penetration must take place even if partial, so it is not sufficient to have ejaculation on the outside of the vagina even if the woman gets pregnant as a result.
Second: Who it is temporarily forbidden to be married to (collective prohibition)
What is meant by this involves an explanation of the individuals to whom it is forbidden to marry through a collective prohibition, which is one in which the prohibition is temporary and depends on the continuity of the marriage of the first person, but if they separate, the person is allowed to marry someone else who was previously under prohibition, or that allowing the marriage to go ahead is subject to the permission of one of them.
1349. It is not allowed for the man to marry his wife’s sister as long as her sister is still his wife, whether her sister is biological or through breastfeeding, and whether his marriage to the first or second sister is permanent or term, and whether he has had sexual intercourse with the first or not. So if he establishes a contract with the second sister after a contract with the first, he has sinned and the contract with the second is invalid; and if he establishes a contract – himself or through his proxy – with both of them at the same time, both contracts are invalid. In all cases, his contract with the second does not lead to her permanent prohibition, and the contract with her is valid after he separates from her sister.
1350. Just as a contract with the sister is forbidden during her sister’s marriage to him, it is also forbidden for him to enter a contract with her if her sister is going through her revocable divorce 'marriage-abstention period' (‘iddat talāq raj‘ī), because she is still regarded as a wife until her marriage-abstention period elapses, while a contract with the sister during her sister’s irrevocable divorce 'marriage-abstention period' (‘iddet talāq bā’in) is valid. This also applies to the marriage-abstention period after a term marriage where it is allowed to marry the sister before the end of the marriage-abstention period of her term-married sister.
1351. It is not valid that a man enters into a contract with his wife’s niece (brother’s side, i.e. bint akh) when he is married to her aunt (father’s side), nor his wife’s niece (sister’s side, i.e. bint okht) when he is married to her aunt (mother’s side), unless the aunt (father’s side) or the aunt (mother’s side) gives permission and acceptance. Here, no distinction is made as to whether the two marriages are permanent, term or mixed (i.e. one permanent and one term), nor between the aunt’s knowledge or ignorance about the matter when the contract is being made, nor between being informed about it or not informed at all, so if he marries them without their permission, the validity will depend on their permission: if they grant permission, it is validated, otherwise it is invalidated.
There is no difference in the aunts (father’s and mother’s sides) being related biologically or through breastfeeding, nor being immediate family or more distant amongst the aunts (father’s and mother’s sides) of the fathers and mothers of the nieces (brother’s and sister’s sides).
1352. It has become clear from the previous entry that the situation of the ruling is that if the contract with the aunt (father’s or mother’s side) is concluded before the contract with the niece (brother’s or sister’s side) - or if the situation is opposite so that his contract with the aunt (father’s or mother’s side) is concluded after his marriage to her niece (brother’s or sister’s side) - the validity of the marriage of the niece will not depend on the satisfaction of the aunt (father’s or mother’s side); also, the validity of the marriage of the aunt (father’s or mother’s side) will not depend on the satisfaction of the niece (brother’s and sister’s sides), but the contract will be valid and goes through.
1353. The ruling of the obligation to obtain the permission of the aunt (father’s or mother’s side) is not limited to the situation that they are actual wives, but it also covers the situation if they were divorced during the marriage-abstention period of a revocable divorce, even during the marriage-abstention period of a mot’ah (term marriage) as an obligatory precaution. However, obtaining their permission is not obligatory if they are during the marriage-abstention period of an irrevocable divorce.
(C) Who it is forbidden to be married to for reasons other than kinship
Who it is forbidden to be married to due to an illegitimate contract or sexual intercourse
We mean by this who becomes forbidden to the other either: because of an actual sexual relationship between that person and another which (the relationship) is forbidden at the outset (such as adultery with some unmarriageable individuals, a married woman, a divorcee in her marriage-abstention period or homosexuals); or because of an act that is regarded as a prerequisite -for a sexual relationship with them, such as a contract with a married woman or a divorcee in her marriage-abstention period, or a contract while in ihrām in pilgrimage. This is detailed as follows:
First: The ruling regarding contracts with married women or adultery with them
1354. A contract with a married woman is forbidden as long as she is still married to her husband; the ruling regarding such contract is:
1- If a man enters into that contract with her knowing that she was married, he has sinned, the contract is invalid, and he will be permanently forbidden from marrying her if she separates from her husband, even if the contracting person has not had sexual intercourse with her.
2- If he enters into the contract not knowing that a contract with a married woman is forbidden, or not knowing that she is married, he has not sinned; his contract with her is invalid in any case, but she will not permanently forbidden to him, even if he has had sexual intercourse with her, although it is better to abstain from marrying her if he has had sexual intercourse with her.
There is no consequence to the knowledge of the woman about the forbidden ruling of entering a contract with her, but it is the knowledge or ignorance of the contracting man that is relied on. That said, she is a sinner and an adulterer if she knows. Also, there is no difference, for the implementation of this ruling, between the married woman being young or old, a Muslim or from the People of the Book, if she has had sexual intercourse with her husband or not, if her first marriage was term or permanent, or whether her second contract is term or permanent.
1355. It is sufficient for permitting the contract if the woman did not know that she was married, and if he has doubts, he is not obliged to check the situation; and if he knows that she was married and she tells him that she has become free, he should believe her, provided that she is not accused of dishonest conduct, otherwise, it is an obligatory precaution to abstain from marrying her until he is certain of her truthfulness.
1356. If a man commits adultery with a married woman, it is more probable that a permanent prohibition between her and the adulterer is not confirmed at all, so the adulterous man is allowed to marry her after her divorce and the elapse of her marriage-abstention period, although it is better for the adulterous male to abstain from marrying her, especially if she went along with him (when they committed the sin).
The wife does not become forbidden to her husband if she commits adultery, even if she goes along with the adultery; her dowry is not cancelled by the adultery.
Second: The ruling regarding the contract with a woman during her marriage-abstention period, or with a woman with whom he committed adultery
1357. It is forbidden to enter a contract with a woman during her marriage-abstention period. The ruling regarding such an act is the same as that of a contract with a married woman; however the knowledge or ignorance of the woman during her marriage-abstention period – in addition to the man’s knowledge or ignorance – will result in permanent prohibition or not; so if a woman during her marriage-abstention period knows that a contract with her is forbidden and the man does not know this, the permanent prohibition will be implemented from her side if she has sexual intercourse with him, not to mention the sin. And, regarding the woman in her marriage-abstention period, no distinction is made between the case in which the marriage-abstention period is after a revocable divorce, a irrevocable divorce or the husband’s death.
1358. What we mentioned regarding the prohibition of the contract with a married woman is specific to the man other than her husband after divorce from whom she is spending her marriage-abstention period; her husband away from whom she is spending her marriage-abstention period, however, it is allowed to enter a contract with her during her marriage-abstention period after an irrevocable divorce without the need for her marriage-abstention period to finish; she can also enter a contract with him again if she was married to him by a term marriage (mot’ah) and the term has finished, or he released her from the rest of the term; the woman who is in her marriage-abstention period after a revocable divorce, however, is still regarded as a wife, so her husband can have her back, in the appropriate way, without a new contract.
1359. The ruling of adultery with a woman in her marriage-abstention period is not different to the ruling of adultery with a married woman in anything mentioned above; however the state of regarding it better for the adulterous man to abstain from marrying her is specific to the woman in her marriage-abstention period after a revocable divorce.
1360. It is not allowed to enter a contract with a woman whose husband has died during the period between the actual death and the arrival of the news of his death from which she begins her marriage-abstention period. So, if a man enters a contract with her – whether he knows of the situation or not –, then her husband’s death came to be known during the contracting, the contract is invalidated; but she will not be forbidden to him even with knowledge and sexual intercourse, although it is better to abstain from marrying her in the case of knowledge. However, if he committed adultery with her during that period, she will not be forbidden from him at all.
Third: The ruling regarding adultery with some unmarriageable individuals and others
1361. If a man commits adultery with his aunt (father’s and mother’s sides) – in the vagina or the anus – before making a contract with her daughter, her daughter will be forbidden to him as an obligatory precaution, but not if he commits adultery after the contract, and not if the intercourse was of dubious legality; the ruling is also not applicable if the act is less serious than intercourse, such as kissing, touching and the like.
1362. If he commits adultery with a woman – married or free – he will not be forbidden to marry her daughter later, although it is better to abstain from this. Also, the adulterous woman will not be forbidden to the adulterous man’s father and so on upwards through the line of ancestry, nor to his son and so on downwards through the line of ancestry, although it is better to abstain from it here is as well.
However, if the adulterer himself marries her, if she was free from marriage to another man when he committed the adultery, there is no objection to that, provided that she repents and if she is not one who is ‘famous’ for adultery; otherwise it is an obligatory precaution to abstain from marrying her until she offers repentance for her adultery with him or for the profession of prostitution if she was ‘famous’.
1363. There is no objection if a man other than the adulterous one marries the non-‘famous’ adulterer before her repentance, or even the ‘famous’ adulterer if she repents; otherwise it is an obligatory precaution to abstain from marrying her as well.
1364. It is an obligatory precaution on the man who wants to marry an adulterer not to enter a contract with her until the menses arrives if she is not pregnant, which is called ‘istibrā’’, whether he was the adulterer or someone else; and if she is pregnant, marrying her is allowed before she gives birth, even for the man who was not the adulterer.
Fourth: The consequence of homosexual intercourse (loāt)
1365. If an adult male had sexual intercourse with a boy who has not reached the Islamic legal age, with his penis, even if partially, penetrating the anus, then it is an obligatory precaution that the adult is forbidden from marrying the boy’s mother or her mother, and so on upwards through the line of ancestry, or (later) the boy's daughter and so on downwards through the line of ancestry, or his sister, as a permanent prohibition, without this being applicable to his other female relatives, on the condition that the homosexual intercourse took place before any contract with them, otherwise they will not be forbidden to him.
1366. The permanent prohibition is not applicable unless there is absolute certainty about the penetration, so if a man is doubtful about this, or only thought that he had penetrated, no consequence will ensue and he is allowed to marry the above-mentioned females.
Fifth: The consequence of ihrām on pilgrimage or ‘omrah
1367. It is forbidden for a man and a woman to enter a contract with each other, a permanent or term marriage, while in the state of ihrām on pilgrimage or ‘omrah, even if the other person is not in ihrām, or whether the person doing the contract is the person himself or his proxy, or whether the proxy is in a state of ihrām or not, or whether he authorized him before the ihrām or after it, or whether he is on an obligatory or recommended pilgrimage or ‘omrah, or performing pilgrimage for himself or on behalf of another person. So, if he carries out the contract in this situation, the contract is absolutely invalid; in addition it is a sin and, in the case of knowledge about the ruling and even if there is no sexual intercourse, the permanent prohibition of the other person will result.. That said, if it is discovered that the contract is invalid because it did not meet some conditions, then the man would have sinned but she would not be permanently forbidden to him.
1368. There is no objection if a man returns to his wife whom he divorced with a revocable divorce, when one or both of them is in the state of ihrām; there is no objection also to authorising someone who is not in ihrām or one who is in ihrām to carry out the contract after whichever of them was in ihrām leaves it.
Sixth: The number of wives
1369. It is not valid for a man to have more than four wives at the same time in permanent marriage; so if someone who has four wives enters a contract with a fifth wife, the contract is invalid, but she is not permanently forbidden to him. However, in a mot’ah (term) marriage, he is allowed to have more than four women over and above his four wives.
1370. If he divorces one of his four wives with a revocable divorce, he is not allowed to enter a contract with another until the elapse of her marriage-abstention period and until he is released of his marital bonds, but if he divorces her with an irrevocable divorce, he is allowed to do so.
Seventh: On marrying a divorcee for three times or nine times
1371. If a man divorces his wife three times, and twice she comes back to him, then he is forbidden to marry her after the third divorce unless in the meantime she marries someone else (with sexual intercourse), and the second husband separates from her with a divorce or otherwise, and her marriage-abstention period after this has elapsed.
Then if he marries her after the three divorces and he divorces her three more times, then someone else marries her and he then marries her again after him, then he did the same for a third time, resulting in a total of nine divorces, she will be permanently forbidden to him after that; we shall explain this in detail in the section on divorce (no. 1479).