whereas according to those who hold that only five instances of breastfeeding establish prohibition, the marriage is valid.
The disagreement may also concern a condition of the contract. For example, a man marries a virgin whom her father compelled into marriage. She is lawful for him and there are no impediments to the marriage. According to those who stipulate a virgin’s consent, even if her father marries her off, the marriage is invalid; whereas according to those who do not stipulate consent in this case, the marriage is valid. The correct view is that her consent is required.
The disagreement may likewise concern the contract itself, as when a man contracts marriage with a woman during a waiting period whose obligation the scholars differ over, such as a woman who has obtained a divorce in return for compensation. According to the preponderant view, her waiting period is one menstrual cycle, while according to the madhhab, it is three menstrual cycles. Thus, if a marriage contract is concluded with her after the first menstrual cycle, the marriage is valid according to those who hold that her waiting period is one menstrual cycle, and invalid according to those who hold that it is three menstrual cycles.
Thus, in every marriage concerning which there is scholarly disagreement, if a person has intercourse within it, he is not subject to the prescribed punishment for fornication. If he believes the marriage to be valid, the matter is clear: no prescribed punishment is imposed upon him, because he has intercourse with a lawful sexual partner and believes her to be lawful. There is no difficulty in this, and we neither intervene in the matter nor require him to annul the contract, or anything of the sort.
But if he believes it to be invalid, yet proceeds with it out of personal desire—for example, because he is attracted to a woman’s character, religious commitment, and beauty—and the marriage contract with her is one concerning which there is disagreement, and he says, “The matter is disputed, so I shall marry her according to the view of those who consider it permissible,” then this is unlawful. Nevertheless, he is not subjected to the prescribed punishment because of the doubt arising from the scholars’ disagreement, for he may have been mistaken in this belief, and the correct view may be with those who hold the marriage to be permissible, while he believes the marriage to be invalid