And if she is taken captive and enslaved without her husband, intercourse with her is undoubtedly permissible. There is only an anomalous dissenting view within Ahmad’s school, and disagreement has also been reported within Mālik’s school.

Ibn al-Mundhir said:

“All the scholars whose views have been recorded agree that if a woman becomes someone’s property while her husband remains in enemy territory, her marriage is dissolved, and her owner may have intercourse with her after the waiting period to ascertain that she is not pregnant.”

If, however, she is taken captive together with her husband, the scholars disagree concerning this.

It is well known that most of those whom the Prophet—may Allah bless him and grant him peace—took captive were captured in “war.” He also fought the People of the Book: he set out to fight the Christians in the year of Tabūk, although no fighting took place between them. He also sent against them the expedition commanded by Zayd, then Ja‘far, then ‘Abd Allāh ibn Rawāhah. These Christians included both Arabs and Romans. Likewise, he fought the Jews at Khaybar, as well as Banū al-Nadīr and Banū Qaynuqā‘. The Jews of Arabia included Israelites. Similarly, the Jews of Yemen included both Arabs and Israelites.

Furthermore, the grounds for enslavement are “unbelief,” subject to the condition of “war.” A free Muslim may never be enslaved, nor may someone protected by a treaty. Unbelief combined with belligerence is present in every unbeliever; thus, he may be enslaved just as he may be fought. Whatever permits killing the combatants also permits taking their dependants captive. This ruling applies generally to Arabs and non-Arabs alike. This is the position of Mālik, al-Shāfi‘ī in the later of his two opinions, and Ahmad.

Abū Hanīfah, however, does not permit enslaving Arabs, just as he does not permit imposing the jizyah upon them, because the Arabs were distinguished by noble lineage, since the Prophet—may Allah bless him and grant him peace—was one of them