by a disbeliever three times, no divorce would take effect. Likewise, if a Muslim divorced his dhimmī wife—a non-Muslim woman under Muslim protection—three times, and a dhimmī man then married her and consummated the marriage, this would not, in Mālik’s view, make her lawful again for her former husband. If a dhimmī man had intercourse with a dhimmī woman within marriage, he would not thereby qualify as having consummated a valid marriage for the purposes of the prescribed punishment for adultery. Most scholars disagree with him on these matters.

As for such a marriage being valid for establishing lineage and the marital presumption of paternity, there is no disagreement among Muslims. It is not equivalent to intercourse under a semblance of lawfulness. Indeed, if both disbelieving spouses embrace Islam, their marriage is upheld by consensus, whereas they would not be permitted to continue intercourse under a mere semblance of lawfulness. Scholars have cited this hadith as evidence that marriages contracted during the pre-Islamic age of ignorance were valid. They have also cited His words:

“And his wife, the carrier of firewood,”

and His words:

“the wife of Pharaoh.”

They said: Allah called her a “wife,” and words used without qualification are presumed to carry their literal meaning. And Allah knows best.

He—may Allah Most High have mercy on him—also said:

In Sahīh al-Bukhārī, it is stated:

‘Atā’ reported from Ibn ‘Abbās: “The polytheists stood in two different relationships to the Prophet, may Allah bless him and grant him peace, and the believers. Some were hostile polytheists: he fought them and they fought him. Others were polytheists bound by a treaty: he did not fight them, nor did they fight him. When a woman from among the hostile polytheists emigrated, she was not to receive a marriage proposal until she had menstruated and become pure. Once she became pure, she could lawfully marry. If her husband emigrated before she married, she was restored to him. If a male or female slave from among them emigrated, they became free and enjoyed the same rights as the emigrants.”

He then mentioned concerning those bound by a treaty something similar to Mujāhid’s report: “If a male or female slave belonging to the polytheists bound by a treaty emigrated, they were not returned, but their owners were reimbursed their value.”

‘Atā’ also reported from Ibn ‘Abbās: “Qurayba bint Abī Umayya was married to ‘Umar ibn al-Khattāb. He divorced her, and Mu‘āwiya ibn Abī Sufyān married her. Umm al-Hakam, the daughter of Abū Sufyān, was married to ‘Iyād ibn Ghanm al-Fihrī. He divorced her, and ‘Abd Allāh ibn ‘Uthmān married her.”