Chapter: Marriage to a Polytheist
If a man from the People of the Book—or any other non-Muslim—embraces Islam while married to a scripturalist woman, the marriage remains intact. If his wife is an idolatress or a Magian and she declines to convert before consummation, the separation takes effect immediately. Should consummation have already occurred and she embraces Islam during the waiting period, the marriage endures; otherwise the separation is dated from the husband’s conversion. If the wife converts first and the husband persists in disbelief, the ruling is exactly the reverse. When both accept Islam together, the marriage stands; simultaneity is judged by whichever of the two declarations comes last.
Whenever continuation of the marriage is allowed, the fact that the contract originally coincided with an impediment that disappears upon Islam does no harm, provided she is now lawful for him. If the impediment remains, no marriage exists at all. Thus we recognize a marriage concluded without guardian or witnesses, one contracted during a waiting period that has already expired by the time of conversion, and even a fixed-term union—so long as the spouses had believed it to be permanent. The same ruling applies if conversion coincides with a waiting period imposed for intercourse by mistake; according to the preferred view, no forbidden union results.
If the husband converts to Islam, then enters a state of ihram, and the wife converts while he is still in ihram, they remain married according to the school. Should a man have contracted marriage with a freewoman and a slavewoman together and all three later become Muslim, the freewoman alone remains his wife and the slavewoman is released, which is the predominant opinion.
The soundest position is that the marriage contracts of unbelievers are themselves valid. A second view deems them void; a third maintains that their validity becomes clear only if, after conversion, the Islamic judge confirms the union. On the first and strongest view, therefore, if a husband had already pronounced three divorces and the couple later convert, she is not lawful to him again until she has lawfully married and consummated with another husband. Any wife whose marriage is confirmed is entitled to the stipulated dowry, provided it is valid.
If the dowry was something invalid in Islamic law—wine, for instance—and she had already taken possession of it before embracing Islam, she receives nothing further; if she had not, she is entitled to a dowry equivalent to that of women of similar status. If she had received part of it, she is owed a proportional share of the remainder in a proper dowry.
A wife whose marriage is dissolved by Islam after consummation receives the full agreed dowry if the contract is validated; otherwise she takes the equivalent dowry. If separation occurs before consummation and the contract is upheld, then: if her own conversion caused the dissolution she is entitled to nothing, whereas if his conversion caused it she receives half of the stipulated dowry if the contract is valid, and half of the equivalent dowry if it is not.
When a dispute is brought before an Islamic court by a dhimmi and a Muslim, judgment is obligatory; and if two dhimmis litigate before us, judgment is likewise obligatory according to the stronger view. In either case we uphold among them whatever we would uphold were they to embrace Islam, and we annul whatever we would not uphold.