there is no difference whether the second husband has intercourse with her or not. Yet they say: even if he has been in seclusion with her but has not had intercourse with her, she belongs to the first husband—despite the fact that, had the marriage been valid, seclusion would have necessitated the waiting period, as mentioned previously. Thus, this rationale is defective. The sound view, therefore, is that the first husband is given the choice in every case, as reported from the Companions (1).

According to the madhhab, however, if the first husband returns after the second has had intercourse with her, he has the choice between taking her back or leaving her with the second husband. If he takes her back, no new marriage contract is needed, because his taking her back constitutes the continuation of his first marriage, and continuation does not require a new commencement.

His statement, “even if the second has not divorced her,” is because the choice belongs to the first husband.

His statement, “And he must not have intercourse with her until the second husband’s waiting period is over,” is because the second husband had intercourse with her on the basis that she was his wife, and so she requires a waiting period. But it may be said: the waiting period is contingent upon the validity of the marriage. It is known that if we hold the marriage to be invalid when the first husband returns before intercourse—because it becomes clear that her first husband is still alive—then this is not a waiting period following divorce, but rather a period to establish that the womb is free. The correct view is that she observes one menstrual cycle, after which the first husband may have intercourse with her.

His statement, “He may leave her with him without renewing the marriage contract”: this is the second option available to the first husband. He may leave his wife with the second husband without a new contract being made for the latter. Why is a new contract not made? Because leaving her with him amounts to ratifying her marriage to the second husband. Thus, this falls under the heading of approving a contract after it has been executed,