to the first husband. It is not a marriage in the Sharīʿah, and so it does not bring about the effects of a valid marriage. Accordingly, she is not lawful for either the first husband or the second. As for the second, this is because his marriage contract with her is invalid; and as for the first, it is because she has not, in reality, married another husband.

Is it to be deemed zinā? There may be an element of ambiguity in it, but it is not outright zinā. It has been narrated from ʿUmar, may Allah be pleased with him, that he said: “No man who performs taḥlīl, nor the man for whom it is performed, will be brought before me except that I will stone them both.” (1) This report indicates that it is zinā, since stoning is prescribed only for one who commits zinā.

His statement, “or he intended it without stipulating it,” means that the second husband intended it. This is why he said: “If he marries her with such a stipulation, or intending it”—that is, the second husband intends that, once he has made her lawful for the first husband, he will divorce her—then she does not become lawful for the first husband, and the marriage is invalid. The evidence is that he intended taḥlīl and thus falls under the prohibition or the curse. The Prophet, peace and blessings be upon him, said: “Actions are only by intentions, and every person shall have only what he intended.” (2)

But what if the wife intended it, agreeing to marry the second husband in order to become lawful for the first? The apparent meaning of the author’s words is that the wife’s intention has no effect. The reason is that she has no control over the matter, and the second husband will not divorce her, since he married her out of genuine desire and has no such matter in mind. Likewise, if she did not intend it but her guardian did.

For this reason, some jurists stated an expression that is regarded as a maxim, saying: “One who does not”