the report of ‘Īsā from Ibn al-Qāsim in the Book of Trade with Enemy Territory, concerning a ruler who sells captives on the understanding that this man is that woman’s husband and she is his wife: the purchaser is not entitled to separate them.
The third view is that of Ibn al-Mawwāz: capture neither dissolves their marriage nor permits its dissolution, whether they are captured together or separately. According to his view, if an enslaved woman is captured and her husband is subsequently captured or arrives under a safe-conduct before her owner has intercourse with her, her husband has the stronger claim to her.
The fourth view distinguishes between her being captured before him and his being captured before her or together with her, with his life being spared. This is Ibn Bukayr’s view in al-Ahkām.
A number of Quran commentators have said that “married women” in this verse refers to all women: they are forbidden and become lawful only through marriage or ownership. This is the interpretation adopted by Sa‘īd ibn al-Musayyab. It amounts to saying that Allah has forbidden unlawful sexual intercourse. It has also been said that the words in the verse, “except those your right hands possess” [al-Nisā’: 24], refer to married enslaved women, whether from peoples at war with the Muslims or otherwise. They thus become lawful by virtue of ownership, whether acquired through capture or, apart from capture, through purchase. This was the view of those who held that selling an enslaved woman constitutes her divorce and that she becomes lawful to her purchaser by virtue of his ownership.
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Whatever prohibits intercourse within marriage also prohibits intercourse and sexual enjoyment by virtue of ownership. The prohibitions on intercourse with enslaved women on grounds of kinship correspond to the prohibitions on marrying free women on grounds of blood relationship and breastfeeding. Allah—glorified and exalted is He—grants success.
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Intercourse with Magian women is not lawful through either marriage or ownership, because Allah, Mighty and Majestic, says:
“Do not marry polytheistic women until they believe.” [al-Baqara: 221]
Nor is it lawful to marry an enslaved woman from the People of the Book, because Allah, Mighty and Majestic, says:
“From among your believing slave women.” [al-Nisā’: 25]
Only their free women may lawfully be married, because Allah Most High says:
“And free women from among those who were given the Scripture before you.” [al-Mā’ida: 5]
It is, however, lawful to have intercourse with