1128 - Issue: He said: "If the second [man] has sexual intercourse with her while he does not know that she is a married woman, a separation shall be made between them, and she shall be entitled to receive from him the dower of her equal (mahr al-mithl), and her [first] husband shall not have sexual intercourse with her until she has completed three menstrual cycles after the last time the second [man] had intercourse with her."

As for when the situation is known before the second [man] has intercourse with her, she shall be returned to the first [husband], and there is nothing [against the second man]; because his contract is a corrupt contract that necessitates nothing. If the second [man] has intercourse with her, and he is unaware, it is intercourse by misconception (shubha), which necessitates the dower of her equal (mahr al-mithl) for her, and she is returned to the first [husband]. It is not lawful for him to have intercourse with her until her waiting period (idda) is completed with three menstrual cycles, if she is among those who menstruate and has not become pregnant. Ahmad stated this clearly, and it is the opinion of Qatada, al-Shafi'i, and Ibn al-Mundhir. Ahmad, may Allah have mercy on him, said: She has a dowry due to the act of intercourse, and a dowry from this [second man]. The dowry that is taken from the one who had intercourse with her is not returned to the one she was delivered to; this is because the dowry is in exchange for the enjoyment of her, so it belongs to her, not her husband, just as if she were had intercourse with by misconception or against her will. This second marriage does not require annulment because it is void. The dowry for her does not become obligatory except by sexual intercourse, not by mere entry, and intercourse [must be] other than [merely] vaginal; because it is a void marriage that has no legal status. The dower of her equal (mahr al-mithl) becomes obligatory because it is necessitated by the act of intercourse, not by the naming [of the amount]. Abu Bakr mentioned that what is obligatory is the named amount. The Qadi said: This is the analogy (qiyas) of the school of thought. The first [opinion is the correct one] due to what we have said. And Allah knows best.