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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 9 · Page 517

Translation · EN

in regards to prohibition as with all other prohibited things. As for the verse, it did not emerge in the form of a condition (shart), but rather He described them as such to define (15) them by their predominant state, and what emerges in the form of the predominant state cannot be legally relied upon by its implication (mafhum). If he does not consummate the marriage with the woman, her daughters are not prohibited to him, according to the opinion of the general body of scholars of the regions if she was separated from his marriage, unless she dies before consummation, in which case there are two narrations. The first is that her daughter becomes prohibited, which is the opinion of Zayd ibn Thabit and the choice of Abu Bakr, because death is made to take the place of consummation in completing the waiting period (idda) and the dowry (sadaq), thus it takes its place (16) in the prohibition of the stepdaughter. The second is that she does not become prohibited, which is the opinion of Ali and the school of the general body of scholars. Ibn al-Mundhir said: The masses of the scholars of the regions have reached a consensus (17) that if a man marries a woman and then divorces her, or she dies before he consummates the marriage with her, it is lawful (18) for him to marry her daughter. This is also what was said by Malik, al-Thawri, al-Awza'i, al-Shafi'i, Ahmad, Ishaq, Abu Thawr, and those who followed them, because Allah the Exalted said: "...from your wives with whom you have consummated the marriage. But if you have not consummated the marriage with them, there is no sin upon you." This is a definitive text (nass) that is not to be abandoned for weak analogy (qiyas), nor for the hadith of Abdullah ibn Amr which we have already mentioned, and because it is a separation before consummation, so it does not prohibit the stepdaughter, like the separation of divorce. Death does not proceed in the same manner as consummation regarding sanctuary (ihsan), legalization (ihlal), and the waiting period based on menstrual cycles (idda al-aqra'), and its occupying its place in one respect is not more appropriate than its departing from it in another respect. Even if it were to occupy its place in every respect, the explicit text (sarih nass) of Allah the Exalted and the text of His Messenger is not to be abandoned for analogy or anything else. Once this is established, consummation with her is intercourse (wat'), and it is referred to metonymically as consummation. If he is in seclusion with her but does not have intercourse with her, her daughter does not become prohibited, because she is not one with whom marriage has been consummated. The apparent wording of (19) al-Khiraqi suggests her prohibition, as he said: "If he is in seclusion with her and says: 'I did not have intercourse with her,' and she confirms him, their statement is not to be paid attention to (20), and her ruling is the ruling of one with whom marriage has been consummated (21) in..."

Notes

(15) In the original: "ta'rifuha". (16) In the original: "maqamiha". (17) Omitted from: A, B, M. (18) In M: "jaza". (19) In the original: "kalam". (20) In the original, M: "qawluha". (21) In A, B, M: "al-dukhul".

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