intercourse in some circumstances. Not everyone who is unable to have intercourse in one circumstance or at one time is considered an 'innin (impotent). For this reason, we set his period at a year, and his marriage to a second woman is not valid for that same reason, and because he may be impotent with one woman but not another. Moreover, if the marriage to the second [woman] is temporary or not binding, it is a void marriage, and intercourse within it is forbidden. If it is valid and binding, it causes harm to the second woman, and her word should not be accepted because she wishes by that to liberate herself, so she is accused regarding it, and she is no more deserving of having her word accepted than the first. Furthermore, if a man were to confess to an inability to have intercourse for a day or a month, his impotence would not be established by that; the most that is in what they have mentioned is that his inability to have intercourse is established for the day on which they tested him. If his status of impotence is not established by his own confession of his inability, then it is more appropriate that it not be established by someone else’s claim against him.

[1195] Issue: He said: "And if the hermaphrodite (khuntha) who is problematic (mushkil) says: 'I am a man,' he is not prohibited from marrying women, and it is not permissible for him to marry other than that thereafter. Likewise, if he previously said: 'I am a woman,' he shall not marry anyone except a man."

The hermaphrodite (al-khuntha) is the one who has two outlets in his genital area: the male organ of a man and the female organ of a woman. It is inevitable that he is either male or female; Allah the Exalted says: {And that He created the two mates, the male and the female} [Surat al-Najm: 45]. And He the Exalted says: {And dispersed from both of them many men and women} [Surat al-Nisa': 1]. Thus, there is no third creation. The hermaphrodite must either be problematic (mushkil) or non-problematic. If he is not problematic, in that the signs of men appear in him, he is a man and has the rulings of men; or if the signs of women appear in him, he is a woman and has their rulings. If he is problematic and neither the signs of men nor of women appear in him, our companions have differed regarding his marriage. Al-Khiraqi mentioned that one refers to his own statement [if he states that he is a man, and that his nature inclines] to marrying women, then he may marry them. If he states that he is a woman, and his nature inclines toward men, he is to be married to a man; because this is a matter that cannot be reached except from his side, and it does not involve imposing a right upon anyone else, so his word regarding it is accepted, just as the word of a woman is accepted regarding her menstruation and her waiting period.