Chapter Five: Marriages the Sacred Law Forbids, the Invalid Marriages, and Their Legal Rulings

The forms of marriage about which an explicit prohibition has been transmitted are four:
• Nikah al-shighar
• Nikah al-mutʿah
• Proposing to a woman who is already engaged to one’s brother in faith
• The so-called “tahlil” marriage (the muhallil marriage).

1 – Nikah al-shighar
All the jurists agree that its definition is as follows: a man marries his female ward to another man on condition that the latter in turn marries his female ward to him, with no dowry for either couple other than the exchange of one woman’s marital rights for the other’s. They likewise agree that such a marriage is impermissible because a clear textual prohibition exists. They differ, however, when it has already taken place: can it be rectified by assigning the customary dowry (mahr al-mithl) or not?

Mālik holds that it cannot be rectified; the contract must be annulled permanently, whether before or after consummation. Al-Shāfiʿī concurs, except that he says: if a dowry was named for one of the two women, or for both, the marriage stands with the dowry of equivalence, while the dowry actually stipulated is void.

Abū Ḥanīfah maintains that Nikah al-shighar becomes valid once the customary dowry is imposed. This is also the view of al-Layth, Aḥmad, Isḥāq, Abū Thawr, and al-Ṭabarī.

The root of their disagreement is whether the prohibition is predicated on the absence of consideration (ʿiwaḍ) or not. If it has nothing to do with that, the contract must be annulled in every instance. If the effective cause is the lack of a dowry, then the contract is sound once the customary dowry is fixed—just like a marriage contracted on wine or pork: the jurists unanimously agree that such a marriage, if already consummated, is not annulled, though the dowry of equivalence becomes due. It appears that Mālik—may Allah be pleased with him—considered that although a dowry is not generally a condition for the validity of marriage, the contract in this case is invalid because the dowry itself is invalid, this instance being exceptional because the prohibition specifically targets it; or else he saw that the prohibition relates to the very form of the contract, and prohibition indicates the invalidity of what is prohibited.

2 – Nikah al-mutʿah
Although the reports from the Messenger of Allah—peace and blessings be upon him—declaring it unlawful are mass-transmitted, they differ over the date of the prohibition. Some narrations say it was forbidden on the day of Khaybar; others, on the day of the Conquest (of Mecca); others, during the expedition to Tabuk; others, during the Farewell Pilgrimage; others, during the ʿUmrah of Compensation; and still others, in the year of Awtas. The majority of the Companions and all jurists of the various regions deem it unlawful. It is, however, well known that Ibn ʿAbbās permitted it, and his followers among the people of Mecca and Yemen adopted his view.

They report that Ibn ʿAbbās argued from the Almighty’s words:

“So for whatever enjoyment you have had from them, give them their due payment as an obligation, and there is no blame upon you…” (al-Nisāʾ 24)

and that in one of his readings the verse ends with the phrase “for a specified term.”