one whom a man possesses through a marriage contract, while a concubine is one whom he possesses through ownership. For example, a man has intercourse with a woman thinking that she is his wife: he comes to his bed and finds a woman there whom he assumes to be his wife. The same applies if he thinks her to be his concubine. The essential point is that, if he genuinely thinks this, the matter is clear. But if he merely claims that he thought so, should his claim be accepted? The answer is that the surrounding indications must be considered. For instance, if he seizes a woman in the marketplace and commits the act with her while she cries out, “I am not your wife, and I have no connection to you,” his claim is not accepted. There must be some indication supporting his assertion, just as we said regarding the first of the conditions for the prescribed punishments: he must know that the act is forbidden. If he claims ignorance of its prohibition, his claim is not accepted unless there is some supporting indication. Otherwise, anyone could say, “I did not know that fornication was forbidden,” or, “I did not know that theft was forbidden.” There must therefore be evidence establishing the truth of what he says.
His statement, “or within an invalid marriage which he believed to be valid”: an invalid marriage is one whose invalidity the scholars unanimously agree upon. An example is a man who marries his foster-sister without knowing it. This marriage is invalid, because it is prohibited by the consensus of the Muslims. If he has intercourse with her within such a marriage, no prescribed punishment is imposed upon him.
His statement, “or a marriage or ownership concerning which there is scholarly disagreement”: marriage concerning which there is disagreement has many examples. The disagreement may concern the contract itself, the conditions of the contract, or the person who is the subject of the contract.
For example, a man marries a woman who was breastfed by his mother three times. Here, the disagreement concerns the subject of the contract: is she unlawful to marry or not? According to the view that three instances of breastfeeding establish prohibition, the marriage is invalid,