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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 60The Fourth Section

Translation · EN

his wife wants children. This is in the beginning of the marriage; as for annulment, it is not established by it, for if it were established by that, it would be established for one who has reached menopause. And because that is not known, for there are men who do not produce children when they are young, then they produce children when they are old, and that is not verifiable for them both. As for the rest of the defects, no annulment is established by them according to them. And Allah knows best.

Fourth Chapter: If one of them finds a defect in the other, while they themselves have a defect of a different kind—such as a leper who finds the woman to be insane or leprous—each of them has the option to annul, due to the presence of its cause. Except if a castrated man (majbub) finds the woman to be imperforate (ratqa'), it is not appropriate for an option to be established for them; because his defect is not the one preventing his partner from enjoyment, rather, it was prevented due to his own defect. If one of them finds a defect in their partner that they also possess, there are two views: one is that they have no option, because they are equal and neither has an advantage over the other, so they resemble two healthy people. The second is that they have the option due to the presence of its cause, so it resembles the case where a slave is deceived into marrying a slave-girl.

Section: If a defect occurs in one of them after the contract, there are two views. One is that the option is established. This is the apparent view of al-Khiraqi, for he said: If he is castrated (jubb) before intercourse, she has the option at that time; because it is a defect in the marriage that establishes the option when it is concurrent, so he established it as a newly occurring one, like financial inability (i'sar) and slavery (riqq), for it establishes the option when it is concurrent, such as if an enslaved person is deceived into marrying a slave-girl, and it establishes it if it newly occurs, such as if the slave-girl is emancipated while under the slave. And because it is a contract for a benefit, the occurrence of the defect in it

Notes

(26) In M: "fala". (27) Omitted from A and B. (28) In the original: "laha". (29) In A and M: "al-khiyar". (30) In A: "al-hul". (31) In the original, there is an addition: "bihi". (32) In M: "u'tiqat".

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