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Question

What happens to the legal status of a marriage if a man’s father commit’s adultery with that man’s wife, or if a woman’s mother commit’s adultery with her husband? Is the marriage immediately nullified on account of this, even if the husband and wife wish to stay together?

Answered by

Sheikh Nâyif al-Hamad, presiding judge at Rimâh District Court

Scholars have expressed two differing views on this matter.

The first opinion is that the woman and her husband become unlawful for one another on account of the sexual act between the woman and her husband’s father. This is the recognized position of the Hanafī and Hanbalī schools of law. They argue that any sexual act between a man and a woman – regardless of whether it occurs in a lawful or unlawful context – makes it unlawful for either party to the sexual act to ever be married to the children of the other party. Therefore the woman can never be married to the son of the man with whom she has experienced sexual intercourse. This applies to sex within a valid marriage, sex within an invalid marriage, sex under a false assumption of marriage, and outright fornication.

The Hanafī school goes further to assert that even foreplay and sensual kissing bring about this prohibition, since such foreplay leads to sex and thus brings about the same legal consequences. [al-Mabsūt (4/702, 9/117, and 24/64) and Badā’i` al-Sanā’i` (2/260)]

Hanbalī scholars, however, do not accept that mere foreplay results in prohibiting or invalidating marriages. [al-Tahqīq (2/275), Sharh Muntahā al-Irādāt (2/256) and Kashshāf al-Qunnā` (5/82)]

Abū Hanīfah said: “Many jurists do not regard caressing and kissing to bring about a prohibition (of marriage with near relatives) since there is no textual evidence to establish such a prohibition. However, as a matter of caution, we take it to be so and construe a cause that calls to a sexual act to take the role of the sexual act itself.” [al-Mabsūt (9/117), Badā’i` al-Sanā’i` (7/41), Tabyīn al-Haqā’iq (6/106), Fath al-Qadīr (3/216), and al-Bahr al-Rā’iq (3/105)]

The following is cited as evidence in support of the view that the woman and her husband become unlawful for one another on account of the sexual act between the woman and her husband’s father:

1. Allah says: “And marry not women whom your fathers married – except what is past: It was shameful and odious – an abominable custom indeed.” [Sūrah al-Nisā’: 22]

They argue that the Arabic word nikāh used in this verse not only refers to marriage but also to the act of sexual intercourse.

2. Whatever marital relations become prohibited by virtue of a lawful sexual act likewise become prohibited if an unlawful sexual act takes place, like sex with a woman during her menstrual cycle.

3. Marriage is a contract that can be invalidated in the case of a sexual act under a false assumption of marriage. Therefore, it also becomes invalidated by way of fornication or adultery.

The second opinion is that a sexual act engaged in under the false assumption of marriage does result in prohibiting marriage with the near relatives of those who engaged in the act. However, fornication and adultery do not bring about such consequences. According to this opinion, if a man hypothetically has sexual relations with his daughter-in-law under a false presumption that she was his wife, then as a result the woman would become unlawful to her husband. By contrast, if the husband’s father commits adultery with the woman, such consequences will not take place. This is the recognized position of the Shāfi`ī [4] and Mālikī schools of law. [al-Umm (8/270), Tuhfah al-Muhtāj (7/309), and Minah al-Jalīl (3/330)]

They argue that sexual intercourse under a false presumption of marriage is still something within the bounds of what is to be respected; therefore it brings about the prohibition of marriage with near relatives, even if the ones who engaged in it are already prohibited to marry one another. However, fornication and adultery are different. It is not to be respected in any way, and therefore it does not bring about the legal consequences of prohibiting marriage with the near relatives of the perpetrators. [Hāshiyah al-Bujayrimī (3/366)]

The opinion that fornication and adultery do not result in the prohibition or invalidity of marriage with near relatives is the view preferred by the Hanbalī jurist Ibn Taymiyah. [al-Insāf fī Masā’il al-Khilāf (8/1170)]

The Hanbalī jurist Ibn al-Qayyim concurs with this view, saying [I`lām al-Muqaqi`īn (3/190)]:
The preferred opinion is – as asserted by al-Shāfi`ī and by Mālik in one of the narrations from him – that this act does not result in the unlawfulness of marriage. Such a prohibition requires evidence, and there is no evidence from the Qur’ān, the Sunnah, nor is there consensus nor there any valid juristic analogy to support such an opinion.

It is incorrect to compare an unlawful sexual act to marriage in effecting a prohibition of marriage with near relatives. There are differences between the two. Allah has made the relationship by marriage (i.e. in-law relationships) the partner of biological lineage. It is a blessing which he has bestowed upon his servants. Both types of relationship are blessings and from His grace. The ties of kinship through marriage are not established by unlawful means any more than legitimate lineage is established by such means.

Indeed, if lineage – which is the most fundamental relationship – does not come about from unlawful sexual intercourse, then in-law relationships which are subsidiary and which resemble the blood relationships are even further from being established by way of unlawful sexual intercourse.

Moreover, had marriage been forbidden by an unlawful sexual relationship by virtue of it bringing about an in-law type of relationship, then it follows that a full mahram relationship would be established between the relevant parties as well. Since this is not the case, then the unlawfulness of marriage cannot be established either.

What is more, Allah says (in the verses enumerating prohibited degrees of marriage): “…and the wives (halā’il) of your sons” [Sūrah al-Nisā’: 23] Women whom a son had fornicated with are not called halā’il since the word literally means “those who are lawful to you”.

Allah says: “And marry not women whom your fathers married – except what is past.” [Sūrah al-Nisā’: 22]

What is meant here is marriage that is the very opposite of unlawful sexual relations. The word for marriage – nikāh – does not appear even once in the Qur’an with the meaning of fornication or referring to sex outside of the bonds of marriage.

This view is also supported by the fact that the rulings pertaining to marriage that Allah has set forth – the waiting period, mourning for widows, inheritance, lawful and prohibited degrees, attribution of lineage, the obligation of maintenance, that of dowry, the possibility of the khul` separation, of divorce, the oat of abstention, that of limiting a man to four women and that of justice between them, the ruling of revoking a divorce, that of consummated chastity, of restoring lawfulness to a former husband, and other such rulings – none of them apply to fornication and adultery, with the exception of some disagreement about the waiting period and dowry. However, the correct view is that there is no dowry for prostitution, as clearly stated in the Sunnah of Allah’s Messenger (peace be upon him). Also, the minds of people are naturally predisposed to having an aversion to it. Then, how can the prohibition of marriage on the basis of an in-law like relationship be established through fornication?
Ibn al-`Arabī writes: “In a case where no direct lineage can legally be established, it follows that no in-law relationship can be established. Therefore, fornication with a woman or her mother does not make marriage unlawful. What becomes unlawful by virtue of something lawful does not become unlawful on account of something unlawful.” [Tafsīr al-Qurtubī (13/59)]

Al-Shinqītī writes: “The stronger of the two opinions with respect to the evidence is that fornication and adultery do not prohibit or nullify a valid marriage.”

The Hanbalī jurist Ibn al-`Uthaymīn says: [al-Sharh al-Mumti` `alā Zād al-Mustaqni` (10/200)]
The Hanbalī position is that fornication and adultery are like marriage in that the mother and the daughters of a woman with whom a man has unlawful sexual relations with become permanently unlawful for that man to marry. This is one of the strange opinions in the body of knowledge in that it makes unlawful sex like marriage…

The correct opinion is that nothing brings about prohibition of marriage through in-law relationships except a valid contract and that is because whenever Islamic Law mentions a contract in an unqualified statement, it refers to a valid contract. Therefore, the correct ruling on this matter is that what comes by way of an unlawful relationship does not bring about the prohibition of marriage similar to the prohibition of in-law relationships.
Therefore, the opinion to be relied upon is that in the tragic event that someone’s parent commits adultery with that person’s spouse, the marriage is still intact and legally valid. It is not nullified.

That means if the couple wish to stay together, there is nothing to legally prevent them from doing so, and if a separation is desired, divorce proceedings will have to be initiated.

And Allah knows best.