The Book of Marriage

Marriage (al-nikah) in the Sharia is the marriage contract; when the term is used absolutely, it refers to this, unless there is evidence to direct it otherwise. Al-Qadi said: "It is more likely, according to our foundational principle, that it is a literal term for both the contract and the act of intercourse, due to our ruling on the prohibition of a woman with whom a father has had intercourse without a marriage contract, as she is included in the words of the Almighty: 'And do not marry those whom your fathers married from among women' (1)." It was said: Rather, it is literal for the act of intercourse and metaphorical for the contract. The Arabs say: "Ankahna al-fira, fa-sanara" (We have allowed the wild ass to cover its mother, and we shall see), meaning we have allowed the stallion of the wild asses to mount its mother, and we shall see what will be born from them. This is used as a proverb for a matter upon which they gather, then disperse (2) from it (3). A poet said:

'And of many a widow, our spears have given in marriage, while another mourns over a maternal uncle or aunt' (4).

However, the correct view is what we have stated, because the most common usage of the term "nikah" corresponds to the contract in the Book, the Sunnah, and the language of those of common usage. It has been said: "There is no mention of the term nikah in the Book in the sense of the act of intercourse, except for His saying: 'Until she marries (tankiha) another husband' (5)." Moreover, it is valid to negate its application to the act of intercourse; one may say: "This is fornication (sifah), not marriage (nikah)." It is reported from the Prophet (peace and blessings of Allah be upon him) that he said: "I was born from a marriage, not from fornication (sifah)" (6). Also, it is said of a concubine: "She is not a wife (zawja), nor a married woman (mankouha)." Furthermore, marriage is one...