Chapter Twelve: The Impediment of an Existing Marriage
Concerning this impediment, the jurists concur that a current marital bond—whether between two Muslims or between two members of the protected communities (dhimmīs)—blocks any new contract. They differ, however, with respect to a woman taken captive, as discussed earlier, and they also dispute about the female slave who is sold: does her sale amount to a divorce? The majority say that it does not.
A group of scholars maintain that it does constitute divorce, a view reported from Ibn ʿAbbās, Jābir, Ibn Masʿūd, and Ubayy ibn Kaʿb.
The root of their disagreement is the tension between the implicit meaning of the ḥadīth of Barīrah and the general wording of the Almighty’s words, “except those whom your right hands own” (al-Nisāʾ 4:24).
The verse, “except those whom your right hands own,” includes captives and all others; yet the option granted to Barīrah proves that the sale of a slave-girl is not a divorce, for had her sale been a divorce the Messenger of Allah ﷺ would not have allowed her to choose after emancipation, and ʿĀʾishah’s very purchase of her would itself have been a divorce from her husband.
The majority’s evidence is the report recorded by Ibn Abī Shaybah from Abū Saʿīd al-Khudrī:
“On the day of Ḥunayn the Messenger of Allah ﷺ sent out a detachment. They encountered an Arab clan at Awtās, defeated and killed them, and captured women who had husbands. Some of the Companions felt uneasy about approaching them because of their spouses, whereupon Allah the Exalted revealed: ‘and married women, except those whom your right hands own’ (al-Nisāʾ 4:24).”
This issue properly belongs in the Book of Divorce.
Such, then, are the matters that validate marriages in Islam. As we have said, they return to three categories: the qualities of the contracting parties, the very nature of the contract, and the conditions stipulated therein.
Regarding marriages formed before Islam and then overtaken by conversion: the jurists agree that if both spouses embrace Islam together, and the original contract involved a woman whom Islam would allow one to marry in the first place, Islam affirms that marriage.
They differ in two situations:
- when the marriage involves more than four wives, or two women whom Islam forbids to be married simultaneously;
- when one spouse embraces Islam before the other.
As for the first—namely when a non-Muslim becomes Muslim while he has more than four wives or while he is married to two sisters—Mālik says that he must choose four of them, and in the case of the two sisters whichever one he prefers; al-Shāfiʿī holds the same view.