The Book of Marriage, Breastfeeding, Divorce, Mutual Oath-Swearing, and Manumission-02a
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The reciter: Yahya ibn Yahya narrated to us, saying: I read to Malik from Nafi' from Nubayh ibn Wahb: .
The Shaykh : Among the matters of knowledge is that Allah (Glorified and Exalted is He) said regarding the one in the state of ihram:[Al-Baqarah 2:197]. Rafath is intercourse and its preliminaries. The marriage contract is not intercourse nor its preliminaries, but it makes intercourse permissible. Therefore, the Prophet (peace and blessings be upon him) prohibited it, saying: Sunan Abi Dawud 1841Sahih (Al-Albani). So, he does not marry, nor is he given in marriage if he is a woman, and in one wording, "nor is he given in marriage," meaning he does not contract marriage for another. Accordingly, if a person is in the state of ihram, it is forbidden for him to marry, even if the woman is not in ihram and her guardian is not in ihram. And if a person is not in ihram and wants to marry a woman who is in ihram, that is forbidden, even if the husband is not in ihram and the guardian is not in ihram. And if a person wants to marry a woman who is not in ihram while he is not in ihram, but the guardian is in ihram, that is also forbidden. So, the one in the state of ihram is not given in marriage, does not marry, and does not give in marriage. And His saying (peace and blessings be upon him): means he does not propose marriage to a woman. This is to protect this prohibition, which is one of the prohibitions of ihram. As for the one who translates the chapters, saying "The prohibition of marriage and the dislike of proposing marriage," there is doubt about this. The correct view is that proposing marriage is forbidden (haram) and it is not permissible for the one in the state of ihram to propose marriage, because there is no difference, and the hadith is one and the context is one. Where is the evidence for distinguishing? And until when does this apply? According to the majority of scholars, it applies until the second removal of the state of ihram (tahallul). It was said that it applies until the first removal of the state of ihram. Accordingly, if a person marries after stoning the Jamarat al-Aqabah and shaving his head, but before performing the circumambulation (tawaf), is his marriage valid? According to the majority, no. According to the second opinion, it is valid. Yes, well, if it is assumed that he contracted the marriage, if it is assumed that the one in the state of ihram contracted the marriage, what is the ruling?
The student: It is not valid.
The Shaykh : The contract is not valid. This is because it is prohibited in itself, and anything that is prohibited in itself can never be valid, because validating it would be a contradiction of Allah (Mighty and Majestic). Is that clear? Memorize this rule: "Everything that is prohibited in itself is not valid". The Lawgiver says "Do not do it," and you do it and want to establish the act as well, because ruling on its validity necessitates establishing it, and this is the very contradiction of Allah and His Messenger. If someone says: Zihar is a counter-argument to you, for zihar is prohibited, yet a ruling is established for it. So, if a man commits zihar, we say: Do not approach your wife until you expiate. The answer to this is to say: Zihar is not divided into valid and defective; rather, it is a denounced, forbidden act, like zina (unlawful sexual intercourse), for which the hadd (fixed punishment) is established, and qadhf (falsely accusing someone of zina), for which the hadd is established, and the like. What we are saying is that what is not valid is what is divided into valid and defective. So, if it occurs in the prohibited manner, it becomes defective. Yes.
That 'Umar ibn 'Abd Allah intended to marry Talhah ibn 'Umar to the daughter of Shaybah ibn Jubayr, so he sent for Aban ibn 'Uthman to attend, and he was the governor of Hajj. Aban said: I heard 'Uthman ibn 'Affan say: The Messenger of Allah (peace and blessings be upon him) said: "The one in the state of ihram does not contract marriage, nor is he given in marriage, nor does he propose marriage."
أن عمر بن عبيد الله أراد أن يزوج طلحة بن عمر بنت شيبة بن جبير فأرسل إلى أبان بن عثمان يحضر ذلك وهو أمير الحج فقال: أبان سمعت عثمان بن عفان يقول: قال رسول الله صلى الله عليه وسلم: لا ينكح المحرم ولا ينكح ولا يخطبThe Shaykh : Among the matters of knowledge is that Allah (Glorified and Exalted is He) said regarding the one in the state of ihram:
so whoever has made Hajj obligatory upon himself therein [by entering the state of ihram], there is [to be for him] no sexual relations and no disobedience and no disputing during Hajj
فمن فرض فيهن الحج فلا رفث ولا فسوق ولا جدال في الحجA pilgrim may not marry and give someone in marriage in the sacred state(while wearing ihram).
لا ينكح المحرم ولا يُنكحNor does he propose marriage
ولا يخطبThe student: It is not valid.
The Shaykh : The contract is not valid. This is because it is prohibited in itself, and anything that is prohibited in itself can never be valid, because validating it would be a contradiction of Allah (Mighty and Majestic). Is that clear? Memorize this rule: "Everything that is prohibited in itself is not valid". The Lawgiver says "Do not do it," and you do it and want to establish the act as well, because ruling on its validity necessitates establishing it, and this is the very contradiction of Allah and His Messenger. If someone says: Zihar is a counter-argument to you, for zihar is prohibited, yet a ruling is established for it. So, if a man commits zihar, we say: Do not approach your wife until you expiate. The answer to this is to say: Zihar is not divided into valid and defective; rather, it is a denounced, forbidden act, like zina (unlawful sexual intercourse), for which the hadd (fixed punishment) is established, and qadhf (falsely accusing someone of zina), for which the hadd is established, and the like. What we are saying is that what is not valid is what is divided into valid and defective. So, if it occurs in the prohibited manner, it becomes defective. Yes.