"Or a marriage or ownership that is disputed, and the like"
Machine translationRead the Arabic original
The Shaykh :"Or a marriage or ownership that is disputed" There are many examples of a disputed marriage. One is where the disagreement is about the contract itself. Another is where the disagreement is about the conditions of the contract. Another is where the disagreement is about the object of the contract. For example, a woman who was breastfed by a man's mother three times. Here the disagreement is about the object of the contract: is she forbidden or not? Do you understand? A man married a woman who was breastfed by his mother three times. According to the opinion of those who say that three breastfeedings make her forbidden, the marriage is invalid. According to the opinion of those who say that only five breastfeedings make her forbidden, the marriage is valid. This is a man who married a woman who was breastfed by his mother three times. Do you understand? Keep this in mind. Do you understand, everyone? So, according to the opinion that three breastfeedings make her forbidden, the marriage is invalid. According to the opinion that only five breastfeedings make her forbidden, the marriage is valid. So the disagreement here is about the object of the contract, which is the wife: is she lawful for the man or not? Now, the disagreement may be about the contract, specifically its conditions. For example, a man married a virgin and her father forced her. She is lawful for him, and there are no impediments. According to the opinion that requires the consent of a virgin, even if her father marries her off, the marriage is invalid or defective. "Defective" is a more precise term. According to the opinion that does not require consent in this case? ... Reverse it and it will be clear.
Once more. It seems you have not had your afternoon coffee. Shall I repeat the example? Okay. This is a man who married a virgin and her father forced her. She did not consent, but he forced her to marry him. According to the opinion that requires the woman's consent, even if she is a virgin and her father is the one marrying her off, the marriage is defective because she did not consent. According to the opinion that does not require the consent of a virgin in this case, the marriage is valid.
So, is the disagreement here about the essence of the contract or about its condition? It is about its condition, which is whether her consent is required in this situation or not. The correct view is that it is required. The disagreement may also relate to the contract itself, being disputed. We can illustrate this with witnesses whose testimony is not accepted according to the opinion of those who hold that view. Or we can illustrate it with a man who contracted a marriage with a woman in her waiting period, where scholars differ on whether the waiting period is obligatory. In this case, the disagreement is about the contract itself.
An example is a woman who has undergone khul'. Do you know what khul' is?
The questioner : ... .
The Shaykh : You do not know it. A woman who has undergone khul' means she agreed with her husband to give him money and he would dissolve her marriage. This is a woman who has undergone khul'. According to the stronger opinion, her waiting period is one menstruation. According to the school of thought, her waiting period is three menstruations. So, if we contract a marriage with her after the first menstruation, the marriage is valid according to the opinion that her waiting period is one menstruation, and it is not valid according to the opinion that her waiting period is three menstruations. Okay. So, any disputed marriage, if a man has intercourse in it, he is not given the hadd punishment for zina. However, if he believes it is valid, the matter is clear, because he says, "I want a lawful vagina, and I believe it is lawful, and I have no doubt about it." We do not address this case, and we do not oblige him to dissolve the contract or anything else.
As for if he believes it is defective but he proceeded with it due to a desire in his heart. A woman pleased him in her character, religion, and beauty, and he said, "The issue is disputed, I will marry her according to the opinion that it is permissible." Yes. What do we say? Is it forbidden or not? It is forbidden, but he is not given the hadd punishment. Why is he not given the hadd? Because of the doubt and the disagreement among scholars. Why is it a doubt if he believes it is forbidden? He may have been mistaken in this belief. The correct view may be with those who say the marriage is permissible. He currently believes the marriage is not valid, but is this definitely in accordance with the ruling of Allah? No. He may have been mistaken, and the correct view may be with those who make it lawful for him. Because of this possibility, this intercourse is a doubt that averts the hadd punishment from him. I do not know if this is clear or not?
The questioner : Clear.
The Shaykh : Okay. So, a disputed marriage: if he believes it is valid, there is no hadd and nothing is required of him. He remains in his marriage. If he believes it is defective, we distinguish between the two cases based on what he believes, but we do not give him the hadd punishment. Why? Because of the doubt. What is the doubt? The possibility that the correct opinion, in accordance with the ruling of Allah, is contrary to what he believes. Is that right or not? Because of this doubt, we avert the hadd punishment from him. It was said that if he believes it is invalid, he is given the hadd punishment based on his belief, because he sees that he is having intercourse with a vagina and that this contract has no effect. Yes. And it is not our concern if there is disagreement among scholars, but he believes that this is zina. Why do we not take him based on his belief? In such a case, the judge or ruler should look at what the situation requires.
Ownership that is disputed. A man had intercourse with a slave woman in ownership that is disputed. This also has multiple forms. One is if a man bought a slave woman after the second call to Friday prayer, and he is one of those for whom Friday prayer is obligatory. What is the ruling on buying and selling after the second call on Friday? It is forbidden and invalid. This man bought a slave woman after the second adhan for Friday prayer, and he is one of those for whom Friday prayer is obligatory. But the slave woman pleased him, and he was afraid that they would hesitate to sell her after Friday, or that the price would increase or he would not get her. So he hastened and bought her from her master after the second adhan. What is the ruling on the contract? It is invalid. Some scholars hold that the contract is forbidden but not invalid. This man bought her and had intercourse with her. Is the hadd punishment due on him? Absolutely not, because there is disagreement. But if he believes it is valid, we keep her with him. If he believes it is defective, we return her to her original seller, and he has no right to her.
Okay. A man said to a person praying next to him in the mosque, "I have bought a slave girl from the best of slave girls. She is beautiful, young, and educated." The other said, "Is that true?" He said, "Yes." He said, "Sell her to me?" He said, "I accept" in the mosque. He accepted and sold her to him. He took this woman after they left and delivered her to him, and he had intercourse with her. Scholars differ on whether a sale in the mosque is valid or not. Although it is forbidden, they differ on its validity. He is not given the hadd punishment. Why? Because of the disagreement about it. So it is a doubt. There is disagreement about the sale. The correct view is that it is not valid, but there is disagreement. There is also the action of a non-owner, which is mentioned in the commentary. I presented these two forms to you so that you would understand.
Do you know the action of a non-owner? It is when a person sells the property of another without his permission. A person disposes of the right of another without his permission. This action may be approved by the one who has the right, or it may not be approved. If it is not approved, the action is not valid. If it is approved, there is disagreement among the scholars. Some of them approved it, and some of them prohibited it. Do you understand?
Okay. A man came to him and asked, "I have to free a slave neck. Do you know what a slave neck is?" He said, "Yes." He said, "How much will you offer?" He said, "I will offer ten thousand riyals." He knew that a slave girl at his colleague's place was worth five thousand riyals. He said, "I will secure this by selling her to me." Did you imagine this or not? So he sold her to the one who wanted to free her. When he sold her to him and he received her from him, he gave him the ten thousand. He liked her, had intercourse with her, and then he would free her. There is no problem.
This action is invalid according to the school of thought because it is not from the owner and not from an agent. But this man said, "I will sell her." If the owner of the slave woman approves it, is the contract valid or not valid? According to the school of thought, it is not valid even if approved. If the owner of the slave woman said to him, "My brother, may Allah reward you with good. I am now tired of her and will sell her for one thousand riyals. And this, praise be to Allah, Allah has brought ten thousand riyals for her. May Allah reward you with good." What do we say according to the school of thought? The sale is not valid because it is not from the owner or from one who stands in the place of the owner. The second opinion is that if it is approved, the contract is valid from its origin, not from the approval. And according to this, the man's intercourse with this woman is in ownership that is disputed. Is he given the hadd punishment for zina? No, because it is in ownership that is disputed.
Once more. It seems you have not had your afternoon coffee. Shall I repeat the example? Okay. This is a man who married a virgin and her father forced her. She did not consent, but he forced her to marry him. According to the opinion that requires the woman's consent, even if she is a virgin and her father is the one marrying her off, the marriage is defective because she did not consent. According to the opinion that does not require the consent of a virgin in this case, the marriage is valid.
So, is the disagreement here about the essence of the contract or about its condition? It is about its condition, which is whether her consent is required in this situation or not. The correct view is that it is required. The disagreement may also relate to the contract itself, being disputed. We can illustrate this with witnesses whose testimony is not accepted according to the opinion of those who hold that view. Or we can illustrate it with a man who contracted a marriage with a woman in her waiting period, where scholars differ on whether the waiting period is obligatory. In this case, the disagreement is about the contract itself.
An example is a woman who has undergone khul'. Do you know what khul' is?
The questioner : ... .
The Shaykh : You do not know it. A woman who has undergone khul' means she agreed with her husband to give him money and he would dissolve her marriage. This is a woman who has undergone khul'. According to the stronger opinion, her waiting period is one menstruation. According to the school of thought, her waiting period is three menstruations. So, if we contract a marriage with her after the first menstruation, the marriage is valid according to the opinion that her waiting period is one menstruation, and it is not valid according to the opinion that her waiting period is three menstruations. Okay. So, any disputed marriage, if a man has intercourse in it, he is not given the hadd punishment for zina. However, if he believes it is valid, the matter is clear, because he says, "I want a lawful vagina, and I believe it is lawful, and I have no doubt about it." We do not address this case, and we do not oblige him to dissolve the contract or anything else.
As for if he believes it is defective but he proceeded with it due to a desire in his heart. A woman pleased him in her character, religion, and beauty, and he said, "The issue is disputed, I will marry her according to the opinion that it is permissible." Yes. What do we say? Is it forbidden or not? It is forbidden, but he is not given the hadd punishment. Why is he not given the hadd? Because of the doubt and the disagreement among scholars. Why is it a doubt if he believes it is forbidden? He may have been mistaken in this belief. The correct view may be with those who say the marriage is permissible. He currently believes the marriage is not valid, but is this definitely in accordance with the ruling of Allah? No. He may have been mistaken, and the correct view may be with those who make it lawful for him. Because of this possibility, this intercourse is a doubt that averts the hadd punishment from him. I do not know if this is clear or not?
The questioner : Clear.
The Shaykh : Okay. So, a disputed marriage: if he believes it is valid, there is no hadd and nothing is required of him. He remains in his marriage. If he believes it is defective, we distinguish between the two cases based on what he believes, but we do not give him the hadd punishment. Why? Because of the doubt. What is the doubt? The possibility that the correct opinion, in accordance with the ruling of Allah, is contrary to what he believes. Is that right or not? Because of this doubt, we avert the hadd punishment from him. It was said that if he believes it is invalid, he is given the hadd punishment based on his belief, because he sees that he is having intercourse with a vagina and that this contract has no effect. Yes. And it is not our concern if there is disagreement among scholars, but he believes that this is zina. Why do we not take him based on his belief? In such a case, the judge or ruler should look at what the situation requires.
Ownership that is disputed. A man had intercourse with a slave woman in ownership that is disputed. This also has multiple forms. One is if a man bought a slave woman after the second call to Friday prayer, and he is one of those for whom Friday prayer is obligatory. What is the ruling on buying and selling after the second call on Friday? It is forbidden and invalid. This man bought a slave woman after the second adhan for Friday prayer, and he is one of those for whom Friday prayer is obligatory. But the slave woman pleased him, and he was afraid that they would hesitate to sell her after Friday, or that the price would increase or he would not get her. So he hastened and bought her from her master after the second adhan. What is the ruling on the contract? It is invalid. Some scholars hold that the contract is forbidden but not invalid. This man bought her and had intercourse with her. Is the hadd punishment due on him? Absolutely not, because there is disagreement. But if he believes it is valid, we keep her with him. If he believes it is defective, we return her to her original seller, and he has no right to her.
Okay. A man said to a person praying next to him in the mosque, "I have bought a slave girl from the best of slave girls. She is beautiful, young, and educated." The other said, "Is that true?" He said, "Yes." He said, "Sell her to me?" He said, "I accept" in the mosque. He accepted and sold her to him. He took this woman after they left and delivered her to him, and he had intercourse with her. Scholars differ on whether a sale in the mosque is valid or not. Although it is forbidden, they differ on its validity. He is not given the hadd punishment. Why? Because of the disagreement about it. So it is a doubt. There is disagreement about the sale. The correct view is that it is not valid, but there is disagreement. There is also the action of a non-owner, which is mentioned in the commentary. I presented these two forms to you so that you would understand.
Do you know the action of a non-owner? It is when a person sells the property of another without his permission. A person disposes of the right of another without his permission. This action may be approved by the one who has the right, or it may not be approved. If it is not approved, the action is not valid. If it is approved, there is disagreement among the scholars. Some of them approved it, and some of them prohibited it. Do you understand?
Okay. A man came to him and asked, "I have to free a slave neck. Do you know what a slave neck is?" He said, "Yes." He said, "How much will you offer?" He said, "I will offer ten thousand riyals." He knew that a slave girl at his colleague's place was worth five thousand riyals. He said, "I will secure this by selling her to me." Did you imagine this or not? So he sold her to the one who wanted to free her. When he sold her to him and he received her from him, he gave him the ten thousand. He liked her, had intercourse with her, and then he would free her. There is no problem.
This action is invalid according to the school of thought because it is not from the owner and not from an agent. But this man said, "I will sell her." If the owner of the slave woman approves it, is the contract valid or not valid? According to the school of thought, it is not valid even if approved. If the owner of the slave woman said to him, "My brother, may Allah reward you with good. I am now tired of her and will sell her for one thousand riyals. And this, praise be to Allah, Allah has brought ten thousand riyals for her. May Allah reward you with good." What do we say according to the school of thought? The sale is not valid because it is not from the owner or from one who stands in the place of the owner. The second opinion is that if it is approved, the contract is valid from its origin, not from the approval. And according to this, the man's intercourse with this woman is in ownership that is disputed. Is he given the hadd punishment for zina? No, because it is in ownership that is disputed.