the husband does not know which of them it is, then according to the first view, the marriage is not valid because there is no intention from either of them regarding the one whom their expression covers. According to the possibility we mentioned, it is valid regarding the one specified by the wording, for the reason we have stated.
Section: If he has only one daughter and says to a man: "I have married you to my daughter," and names her with a name other than her own, the Qadi said: "It is valid." This is the position of the companions of al-Shafi'i, because his saying "my daughter" is more emphatic than the naming, since there is no ambiguity in it, whereas the name is common. If he were to say: "I have married you to this one," while gesturing to her, and named her with a name other than her own, it must be valid according to this line of reasoning.
Section: If he were to say: "I have married you to the fetus of this woman," it is not valid, because the ruling of being a daughter is not established for it before its appearance, except in inheritance and bequests. Furthermore, it is not certain that there is a daughter in the womb, so it is similar to if he said: "I have married you to whoever is in this house," while they do not know who is in it. If he said: "If my wife gives birth to a daughter, I marry her to you," it is not valid, because it is suspending the marriage upon a condition, and marriage cannot be suspended [upon a condition], and because this is a mere promise through which no contract is formed.
1141 - Issue: He said: "And if he marries her and stipulates for her that he will not take her out of her house or her city, she has her condition; because of what was narrated from the Prophet (peace be upon him) that he said: 'The most worthy of conditions for you to fulfill are those by which you have made lawful the private parts.' And if he marries her and stipulates for her that he will not marry another woman over her, she has the right to separate from him if he marries another woman over her."
The summary of this is that conditions in marriage are divided into three categories: One of them is that which must be fulfilled, which is that from which she derives benefit and advantage, such as if he stipulates for her that he will not take her out of her house or her city, or that he will not travel with her, or that he will not marry another over her, or will not take a concubine over her. In this case, he is obligated to fulfill it for her, and if he does not do so,
(5) In A, B, and M: "ma" (what). (6) In the original: "bi-shart" (upon a condition). (1) In M: "wa-baladiha" (and her city). (2) In the original: "in" (if).
