and then marries her during her waiting period from him, before she has married another man. Those who attribute the prohibition to acting prematurely, before the prescribed term has elapsed, together with the risk of confusion of lineage, do not deem her permanently forbidden to him. Those who attribute it to acting prematurely alone, without requiring the additional factor of confusion of lineage, do deem her permanently forbidden.

Section

By agreement, a man who commits fornication with a woman during a marital waiting period or istibrāʾ, without any basis for presuming a marriage or ownership, is not regarded as having intercourse during a waiting period in a manner that would prohibit him from marrying her thereafter. Allah knows best.

Section

If a man marries off his slave woman, with whom he has been having intercourse, before having her observe istibrāʾ, or marries off his slave woman who has borne him a child before having her observe istibrāʾ, the husband is not regarded as having married a woman during a waiting period. Rather, he is like someone who marries a woman who is still another man’s wife.

Section

If the wife gives birth during the waiting period, less than six months after the second marriage, the child is attributed to the first husband, and giving birth ends her waiting periods in respect of both men. The same applies if she gives birth after more than six months, but within the possible duration of pregnancy, provided he married her before she had had a menstrual period. If, however, she gives birth after more than six months and he married her after she had had a menstrual period, the child is attributed to the second husband.

There is disagreement over whether giving birth ends her waiting period in respect of the first husband, if she is a woman whose waiting period is reckoned by menstrual cycles and that waiting period follows divorce. The correct view is that giving birth does not end her waiting period in respect of the first husband: she must begin a fresh count of three menstrual periods after giving birth, just as she would if illness or breastfeeding had prevented her from menstruating. This is the view preferred by Muhammad ibn al-Mawwāz.

Al-Mudawwana contains evidence for both positions. In one passage, it states that if a man marries a woman during her waiting period following divorce and she gives birth, giving birth suffices to discharge her waiting periods in respect of both husbands. It makes no distinction between whether the child is attributed to the first husband or the second. If this statement is understood in its apparent, general sense, it indicates that giving birth discharges her waiting period in respect of the first husband even if the child is attributed to the second.

In another passage, it states that if a man marries her during her waiting period following her husband’s death, after one or two menstrual periods, and she gives birth six months or more later, her waiting period ends upon delivery, this being the later of the two terms. The statement, “this being the later of the two terms,” indicates that he took into account the completion of her waiting period in respect of