On the basis of this hadith, they unanimously agree that if two husbands have intercourse with the same woman during a single period of purity, the child belongs to the first, even if she gives birth more than six months later, because his marital relationship was valid. There is no distinction between the two cases.

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If the enslaved woman remains in the seller’s possession after the sale and he has intercourse with her before her freedom from pregnancy has been established, having been entrusted by the purchaser with ascertaining this, she becomes his umm walad and the sale is annulled, provided she is among those for whom custodial placement is required, either because of her high value or because the seller had been having intercourse with her.

If, however, he has intercourse with her after her freedom from pregnancy has been established, the purchaser having entrusted him with ascertaining this, and she is among the low-grade slaves for whom custodial placement is not required, then, if he has received payment, he incurs the prescribed punishment for unlawful intercourse. The child is not attributed to him, and both the woman and her child belong to the purchaser.

There is disagreement if he has not received payment and has intercourse with her while retaining her pending payment of the price. Ibn al-Qāsim said: “The prescribed punishment is averted because of the legal uncertainty. The purchaser takes his enslaved woman, and the seller must pay the value of the child.” Sahnūn said: “She becomes his umm walad, and the sale is annulled.” Success comes only from Allah, the Exalted.

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The Meaning of Custodial Placement and Its Obligation

We have already discussed the waiting period for establishing freedom from pregnancy, and how everyone agrees that it is obligatory to safeguard lineage, just as the waiting period prescribed by Allah in His Book is obligatory and constitutes one of the limits He has set for His servants.

Custodial placement means placing the enslaved woman whose freedom from pregnancy is being established in the care of a trustworthy woman until she menstruates. If she menstruates, the sale to the purchaser is finalized. If she does not menstruate and is found to be pregnant, she is returned to the seller, unless the purchaser chooses to accept her, provided the pregnancy is not by the seller.

Mālik—may Allah Most High have mercy on him—and the majority of his companions consider this placement obligatory to eliminate uncertainty and risk, and to avoid a loan yielding a benefit if the price is paid in advance. This applies to a high-value enslaved woman sought for intercourse who is not visibly pregnant and is not, like a married woman or one who engages in unlawful intercourse, liable to carry a child who would accompany her in the sale. It also applies to a woman with whom the seller has had intercourse, even if she is of low value. More concisely, we may say that custodial placement is obligatory for an enslaved woman whose