It is recorded by the compilers of the two Ṣaḥīḥ collections, yet it is opposed by numerous reports transmitted from Maymūnah stating that “the Messenger of Allah ﷺ married her while he was in a state of ritual release (ḥalāl).”
Abū ʿUmar remarks: “That report comes through several independent chains—via Abū Rāfiʿ, via Sulaymān ibn Yasār (her freedman), and via Yazīd ibn al-Aṣamm.”
Mālik also relates, on the authority of ʿUthmān ibn ʿAffān, that the Messenger of Allah ﷺ said: “A pilgrim in iḥrām must neither contract marriage, nor have it contracted for him, nor make a proposal.”
Whoever prefers the ḥadīth of Ibn ʿAbbās concludes: “A person in iḥrām may neither marry nor be married.” By contrast, whoever gives priority to the other report of Ibn ʿAbbās—or reconciles it with the report of ʿUthmān ibn ʿAffān by interpreting the prohibition as one of disapproval—rules that the muḥrim may both marry and have a marriage contracted on his behalf. The issue thus turns on a conflict between the Prophet’s action and his statement: either one reconciles them, or one gives the statement precedence.
Section Ten: The Impediment of Illness
The jurists also differed over a marriage contracted by someone who is seriously ill. Abū Ḥanīfah and al-Shāfiʿī deem it valid, whereas Mālik’s well-known opinion is that it is invalid—though this follows from his view that the couple should be separated, a separation he regards as recommended rather than obligatory.
Their disagreement stems from whether such a marriage should be likened to a sale or to a gift. A gravely ill person may give gifts only up to one-third of his estate, yet his sales are permitted. Another cause of dispute is whether he is suspected of harming his current heirs by introducing an additional heir.
Analogizing marriage to a gift is unsound, for all agree that a gift is permissible so long as it is covered by the one-third, while in the case of marriage they did not impose that limitation. Declaring the marriage invalid on the ground that it introduces an heir is a utilitarian analogy (qiyās based on maṣlaḥah) that most jurists reject. The benefits alleged for it are of a kind the Law recognizes only in domains far removed from the issue at hand; some therefore hold that adopting such a view amounts to adding to the Sharīʿah. Applying this analogy undermines the Law’s scriptural foundation, for nothing may be added to it just as nothing may be taken away.
Conversely, refusing altogether to consider public interests can leave people, when lacking explicit Sunnah precedents for a given matter, prone to injustice. Such interests should therefore be entrusted to scholars versed in the wisdom of the sacred law, who are above suspicion—particularly when people sense that a merely literal application of legal forms may lead to wrongdoing.
The competent scholar must examine the surrounding circumstances: if the evidence shows that the patient seeks the marriage for a commendable purpose, it should not be prohibited; but if the intention is to harm his heirs, it must be prevented. Similar judgments arise in many crafts where practitioners face opposing possibilities that cannot be fixed by an exact technical rule—something frequently encountered in medicine and other varied disciplines.