witnesses. Furthermore, the prescribed punishment (hadd) is averted by doubts, and disagreement regarding it is the strongest of doubts. Labeling it as adultery is permissible, evidenced by the fact that he [Umar] labeled it as such merely by the existence of the contract. Umar whipped them both as a disciplinary measure and a discretionary penalty (ta'zir), and for that reason, he whipped the one who performed the marriage but did not whip the woman, and he whipped them both based solely on the contract, despite their belief in its lawfulness. Likewise is the hadith of Ali. Moreover, the hadith of Ali is an argument against those who deemed the prescribed punishment mandatory in it; for Ali was the most severe of people regarding it, yet his action culminated in whipping, which indicates that the rest of the Companions did not see it as requiring a hadd punishment. If it is said: "But you have deemed the hadd mandatory for one who drinks wine, despite the disagreement regarding it?" We respond: It is distinct from our issue, evidenced by the fact that we apply the hadd to one who believes it to be lawful, and because a small amount of wine invites a large amount, the prohibition of which is agreed upon. This disputed matter is independent of the adultery whose prohibition is agreed upon; therefore, they are different. Once this is established, whoever believes it is lawful bears no sin and incurs no disciplinary action because it is one of the peripheral issues (furu') regarding which there is disagreement. However, whoever believes it is prohibited bears sin and is disciplined. If she brings forth a child from him, his lineage is established in both cases.
Section: As for void marriages, such as the marriage of a woman who is already married, or one in the waiting period (idda), and the like, if they both know the situation and the prohibition, then they are both adulterers, the hadd punishment applies to them, and lineage is not established in it.
Section: A corrupt (fasid) marriage is equal to a valid one regarding the invocation of imprecation (li'an) if there is a child between them whom he wishes to deny from himself,
= from the Book of Marriage. Al-Sunan al-Kubra 7/111; and Ibn Abi Shaybah in: The Chapter on the Woman if She Marries Without a Guardian, from [the Book of] Marriage. Al-Musannaf 4/131, 132. (52) Omitted from: Original, A. (53) In M: "the matter". (54) In M: "it indicated". (55) In M: "the people and the Companions". (56) In the Original, A: "the disagreement". (57) In the Original, A, B: "the much [that is prohibited]". (58) In M: "or the like of it". (59) In M: "the lawfulness".
