Abu al-Khattab, and it is the position of Malik and al-Shafi'i. The Qadi and a group of our companions said: It is valid, and the mortgagee may prevent the husband from having intercourse with her, and her mahr (dower) is pledged along with her. This is the school of Abu Hanifa, because the subject of the marriage contract is different from the subject of the pledge contract; this is why the pledging of a married slave girl is valid. Furthermore, the pledge does not terminate ownership, so it does not prevent marriage, like leasing. Our argument is that this constitutes a disposal of the pledge that diminishes its price and exploits some of its benefits, so the pledger does not possess the right to do so without the mortgagee's consent, just like leasing. It is not hidden how this diminishes her price, for it disrupts some of her utilities, prevents her buyer from having intercourse with her and making her lawful, obligates him to allow her husband to enjoy her at night, exposes her through his intercourse to a pregnancy from which there is a fear of her perishing, and keeps her occupied from his service with the upbringing of her child; consequently, the desire for her fades, and she diminishes significantly in value, and perhaps it prevents her sale entirely. As for their argument that the subject of the marriage contract is different from the subject of the pledge, it is incorrect; the subject of the pledge is the same as the subject of the sale, and the sale encompasses her entirety. This is why it is lawful for her buyer to enjoy her. The validity of pledging a married slave girl is only due to the fact that the majority of her utility remains, and she remains a valid subject for sale, just as the pledging of a leased [slave] is valid. The pledge differs from leasing; for marriage does not affect the object of the lease, nor does it prevent the lessee from fulfilling the benefits rightfully owed to him, whereas it does affect the object of the pledge, which is the fulfillment of the debt from her price; since marrying her prevents her sale or diminishes her price, it makes the complete fulfillment of the debt impossible.

Section: It is not permissible for the pledger to have intercourse with his pledged slave girl, according to the statement of most scholars. Some companions of al-Shafi'i, may Allah be pleased with him, said: He may have intercourse with one who has reached menopause and a minor, because there is no harm in that; the rationale for the prohibition is the fear of pregnancy, for fear that she might give birth to a child by him, thus exiting the pledge or exposing herself to destruction, and this is absent in both of these cases. The scholars hold a view contrary to this. Ibn al-Mundhir said: The scholars have reached a consensus that the mortgagee may prevent the pledger from having intercourse with his pledged slave girl. Furthermore, regarding all others with whom intercourse is prohibited, there is no difference between one who has reached menopause, a minor, and others, such as a woman in waiting period ('iddah), one whose womb is being cleared (istibra'), or a foreign woman. Additionally, that which she might conceive from varies,