that is, in fact, void. For the marriage of a woman observing a waiting period is void if the man marrying her is someone other than her husband, since the scholars are unanimously agreed that if a marriage contract is concluded with a woman who is observing a waiting period, the marriage is void. If, however, her own husband concludes a marriage contract with her but without a legal guardian, for example, then the marriage is defective rather than void. Thus, regarding the author’s statement, “or an invalid marriage contract,” we say: if it is contracted by the husband, it is defective; but if it is contracted by someone else, it is void. This is like the case in which he divorces her in return for compensation: the waiting period applies, and the divorce is final, but he may marry her again through a new contract. If he marries her without a legal guardian, the marriage is defective. Yet the context of his words indicates that it is someone other than the husband.

His statement, “They shall be separated,” refers to the man who had intercourse with her and the woman observing her waiting period. The author’s wording indicates that the man in this case is someone other than her husband, which is why he says:

“She completes the waiting period from the first [marriage], and the time she spent with the second is not counted as part of it. She then observes a waiting period for the second.”

For example, a divorced woman has menstruated twice, then a man comes and marries her, or has intercourse with her under a mistaken assumption. One menstrual period remains for the first husband; however, she remains with the second man until she menstruates that period, thus completing three menstrual periods. But the menstrual period that occurred while she was with the second man is not counted, because the author says, “the time she spent with the second is not counted as part of it.” Therefore, after she is separated from the second man, she completes the waiting period for the first.

Suppose that the contract was concluded for her after the second menstrual period, and that she remained with the second husband until she menstruated. After she became pure, the matter became clear, so we annulled the marriage. Its annulment is obligatory, because it is invalid. This is why the author says, “They shall be separated,” rather than saying, “The marriage is annulled,” for the contract here is void by consensus, due to the saying of Allah, Exalted is He: “And do not resolve to undertake a marriage contract