less pronounced. The least serious case is that of a man marrying a slave woman during her istibrāʾ following fornication; next comes her istibrāʾ following rape; then that following sale, gift, or her master’s death; then that following emancipation, whereby she passes from slavery into freedom; then the istibrāʾ of a slave woman who has borne her master a child following emancipation; then her istibrāʾ following her master’s death, since this constitutes a marital waiting period according to Mālik’s school; then the istibrāʾ of a free woman following fornication; and finally her istibrāʾ following rape.
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Marrying a slave woman who is pregnant through fornication should be considered less serious than marrying her during the istibrāʾ required on account of fornication, because the latter risks confusion of lineage, whereas marrying her while pregnant does not. Do you not see that some scholars have permitted a man whose wife commits fornication while visibly pregnant by him to have intercourse with her before she gives birth, since there is no danger of confusing lineage? Yet Ibn al-Qāsim, in Asbagh’s report from him, considered marrying her while pregnant more serious than marrying her during istibrāʾ, on account of a report Ibn Wahb transmits from Mālik specifically concerning pregnancy: that he may never marry her.
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Likewise, there is disagreement over whether marrying a Christian woman during the waiting period following the death of, or divorce from, her Christian husband entails a permanent prohibition of marriage, because this is istibrāʾ rather than a marital waiting period. Do you not see that she has no waiting period if he dies before consummation, while after consummation she must observe three menstrual periods, exactly as in divorce? Mālik—may Allah Most High have mercy on him—had earlier held that one menstrual period sufficed for her.
As for a man who marries a Christian woman during the waiting period following the death of, or divorce from, her Muslim husband, he has married a woman during her marital waiting period. Do you not see that she must observe it upon his death even before consummation? However, it has also been reported from Mālik that she has no waiting period upon his death before consummation, while after consummation she must observe three menstrual periods. According to this report, he did not regard it as a marital waiting period but as istibrāʾ. By analogy with this report, the disagreement over permanent prohibition would therefore apply. Success comes from Allah, glorified and exalted is He.
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There is also disagreement when the waiting period arises from her relationship with the same man: for example, when a man contracts an unlawful marriage with a woman that cannot be upheld, his marriage is annulled after consummation, and he then marries her before istibrāʾ; or when a man divorces a woman three times