jurists recognize the validity of an openly sinful guardian’s authority, and most regard divorce as taking effect in such a marriage—indeed, even in other invalid marriages. If he proceeds on the premise that the marriage is invalid and that divorce does not take effect within it, only someone who also treats what is forbidden as forbidden may avail himself of what is lawful. No one may regard the same thing as both lawful and unlawful.

This husband had intercourse with her before divorcing her, and had she died, he would have inherited from her. He was therefore acting on the basis that the marriage was valid. How, then, can he act after the divorce on the basis that it was invalid, making the marriage valid when its validity serves his purpose, and invalid when its invalidity serves his purpose? This position contradicts the consensus of the Muslims. They agree that whoever believes something to be lawful must maintain that belief whether it serves his purpose or not, and whoever believes it to be forbidden must maintain that belief in both circumstances.

These men who divorce their wives only consider whether the guardian’s sinfulness invalidates the marriage when they have pronounced three divorces—not when enjoying marital intimacy or inheriting from one another. Thus, at one time they follow those who regard it as invalid, and at another they follow those who regard it as valid, according to their interests and desires. Such conduct is impermissible by the consensus of the Muslim community.

A comparable case is that of a man who believes in the existence of “the right of pre-emption by virtue of being a neighbour” when he seeks to exercise it, but believes that no such right exists when he is the purchaser. This is impermissible by consensus. In the present case, the guardian’s authority, despite his open sinfulness, was treated as valid at the time of the marriage, but was treated as invalid