istibra'. And because istibra' is for the preservation of his fluid and protecting it from mixing with the fluid of another; yet his fluid is not protected from his own fluid. For this reason, it was permissible for him to marry his woman who was subject to khul' (divorce for compensation) while she is in her waiting period. It has been narrated from Ahmad, regarding a slave woman whom he does not have intercourse with, that if he emancipates her, he may not marry her without istibra'; because if he were to sell her, it would not be lawful for the purchaser to have intercourse with her without istibra'. The correct view is that it is lawful for him, because it is lawful for him to have intercourse with her by right of ownership, so it is likewise by marriage, just like the one he was having intercourse with. Also, the Prophet (peace and blessings of Allah be upon him) emancipated Safiyyah and married her, and it was not reported that he had previously had intercourse with her; and the other hadith indicates its lawfulness for him by its manifest meaning, due to her inclusion in the general implication. Furthermore, she is lawful for anyone who marries her besides him, so it is more appropriate that she be lawful for him. Additionally, if he were to have her perform istibra', then emancipate her and marry her immediately, it would be permissible and sound; therefore, the same applies here, as he is refraining from having intercourse with her. Moreover, the obligation of istibra' in regard to others is only for the preservation of his fluid from mixing with another's, and that is not present here. Ahmad’s statement is interpreted as referring to someone who purchased her and then married her before having her perform istibra'.

Section: If he purchases a slave woman and emancipates her before she has performed istibra', it is not permissible for him to marry her until she performs istibra'. This is the position of al-Shafi'i. The scholars of opinion (ashab al-ra'y) said: He may do so. It is reported that al-Rashid purchased a slave girl and felt an urge to have intercourse with her before her istibra', so Abu Yusuf instructed him to emancipate her, marry her, and have intercourse with her. Abu 'Abd Allah said: It reached me that al-Mahdi purchased a slave girl and was pleased with her, so it was said to him: Emancipate her and marry her. Abu 'Abd Allah said: Glory be to Allah, how grave this is! They have invalidated the Book and the Sunnah. Allah placed the waiting period (idda) upon free women because of the possibility of pregnancy; there is no woman who is divorced or whose husband dies but that she must observe the waiting period because of the possibility of pregnancy. The Messenger of Allah (peace and blessings of Allah be upon him) established the istibra' of a slave woman by one menstrual cycle because of the possibility of pregnancy. Thus, a man purchases a vagina (a slave woman) to have intercourse with, then he emancipates her on the spot, marries her, and has intercourse with her—a man has intercourse with her today, and another has intercourse with her tomorrow. If she were pregnant, what would he do? This is an overturning of the Book and the Sunnah. The Prophet (peace and blessings of Allah be upon him) said: "A pregnant woman shall not be had intercourse with until she delivers, and a non-pregnant woman until she has menstruated." And this one does not know whether she is pregnant or not. How foul is this! It was said to him: There are people who say this. He said: May Allah condemn this, and condemn whoever says it. What Abu 'Abd Allah pointed out from the proofs is sufficient, along with what we mentioned before this section. Once this is established, he may not marry her to anyone else before she has performed istibra' if he does not emancipate her; because she is one for whom istibra' is required, so it is not permissible for her to be married, like a woman in her waiting period. This is the same whether she was purchased from a man who had intercourse with her, or from a man who had her perform istibra' then did not have intercourse with her, or from someone for whom intercourse is not possible, such as a child, a woman, or a castrated man. Al-Shafi'i said: If he purchases her from someone who does not have intercourse with her, he may marry her off, whether he emancipates her or not; and he may marry her himself if he emancipates her, because she is not a bed-consort. Her master had the right to marry her off before selling her, so it is permissible after selling her. Moreover, if she were to become free through her master’s emancipation or otherwise, it would be lawful for anyone to marry her, so it is the same if the purchaser emancipates her. Our evidence is the generality of his saying, peace be upon him: "A woman who is not pregnant shall not be had intercourse with until she is purified by a menstrual cycle." And because she is a slave woman whom it is forbidden for him to have intercourse with before she performs istibra', so it is forbidden for him to marry her off or be married to her, just as if her seller were having intercourse with her. As for if he emancipates her in this situation, he may marry her off to someone else because she is now a free woman who was not a bed-consort, so marriage is permitted for her, just as if the seller had emancipated her. This is distinct from the woman with whom there has been intercourse, for she is a bed-consort who must perform istibra' for herself if she is emancipated, so marriage is forbidden for her, like a woman in her waiting period. It is also distinct from when her master intends to marry her himself, for he could not have intercourse with her by right of ownership, so he could not marry her, like a woman in her waiting period. Furthermore, this is taken as a stratagem (hilah) to invalidate istibra', so it is prohibited, unlike marrying her off to someone else.