—provided the act does not take place while fasting, on pilgrimage, during menstruation, or in iʿtikāf. Mālik and Ibn al-Qāsim further hold that a dhimmī woman is not made lawful for a Muslim by the intercourse of her dhimmī husband, nor by intercourse with a male who has not yet reached puberty.

Al-Shāfiʿī, Abū Ḥanīfah, Sufyān al-Thawrī, and al-Awzāʿī disagree on all of this. They maintain that the requisite intercourse is effective even when it occurs under an invalid contract or at a time when intercourse is otherwise forbidden. In their view, the act of an adolescent who has not attained full maturity suffices; so too does the intercourse of a dhimmī with a dhimmī woman in making her lawful for a Muslim. The same applies, they say, if the second husband is insane, or a eunuch who still possesses enough of the organ to be fully inserted.

The whole dispute comes down to whether the word “marriage” in the verse is meant to include these defective forms of intercourse or not.

They also differed on the question of the muhallil marriage—that is, when a man weds a thrice-divorced woman on the condition that he thereby make her lawful for her first husband. Mālik ruled that such a marriage is invalid and must be annulled, whether before or after consummation; the condition itself is void and does not render her lawful. In his view, the woman’s own intention to seek talḥīl is irrelevant; only the man’s intention is taken into account.

Al-Shāfiʿī and Abū Ḥanīfah, however, said that the marriage is valid and that intention has no bearing on the matter. This was likewise the opinion of Dāwūd and a group of scholars, who added that the marriage does in fact make the woman lawful for the husband who divorced her three times. Others held that the marriage is valid but the stipulation is null—meaning that it does not effect talḥīl; this was the position of Ibn Abī Laylā and is also reported from al-Thawrī.

Mālik and his followers cite as evidence the ḥadīth reported from ʿAlī ibn Abī Ṭālib, Ibn Masʿūd, Abū Hurayrah, and ʿUqbah ibn ʿĀmir, in which the Prophet—peace and blessings be upon him—said, “Allah has cursed the muhallil and the one for whom the marriage is arranged.” His cursing them, they argue, is like his cursing the usurer and the wine-drinker, which shows that the act is forbidden; and whatever is forbidden is invalid. Moreover, the term “legal marriage” in the Sharīʿah cannot be applied to a union that the Law itself prohibits.

The opposing party rely on the general wording of the Almighty’s statement, “until she marries another husband” (2:230), observing that such a man is, after all, a “husband.” They contend that the prohibition of intending talḥīl does not make the absence of that intention a condition for the validity of the marriage—just as the prohibition of praying on usurped property does not imply that lawful ownership or the owner’s permission is a prerequisite for valid prayer. If the prohibition does not vitiate the contract of marriage, they argue, then a fortiori it does not nullify the talḥīl.

Mālik dismissed the woman’s intention because, unless it is shared by the man, it has no practical effect—especially given that the right of divorce is not in her hands.

They also disagreed as to whether a second marriage cancels fewer than three prior pronouncements of divorce. Abū Ḥanīfah held that it does; Mālik and al-Shāfiʿī that it does not. In other words, if the woman, before the third pronouncement, marries someone other than her first husband and is then taken back by that first husband, should the earlier divorce be counted or not? Those who considered the ruling specific to the third divorce said that anything less than a third is not annulled. Those who reasoned that, if the third can be annulled, then all the more so the earlier ones, maintained that it does cancel divorces fewer than three. And Allah knows best.