Question Summary:
Hurmat-e-Musaharah in the Light of the Other Madhaahib

Question Detail:

Please confirm rulings stated below are correct under following Fiqah (School of thoughts):
1. Hanbalî
2.Shâfi
3. Mâliki
Issue If a man has sexual relations with his son’s wife, what affect does it have for the status of the woman’s marriage to the man’s son? Scholars have expressed two differing views on this matter.
 
Opinion The first opinion is that the woman and her husband become unlawful for one another on account of the sexual act between the woman and her husband’s father. This is the recognized position of the Hanafî and Hanbalî schools of law. They argue that any sexual act between a man and a woman – regardless of whether it occurs in a lawful or unlawful context – makes it unlawful for either party to the sexual act to ever be married to the children of the other party.
 
Therefore the woman can never be married to the son of the man with whom she has experienced sexual intercourse. This applies to sex within a valid marriage, sex within an invalid marriage, sex under a false assumption of marriage, and outright fornication.
 
The Hanafî school goes further to assert that even foreplay and sensual kissing bring about this prohibition, since such foreplay leads to sex and thus brings about the same legal consequences.
 
[1] Hanbalî scholars, however, do not accept that mere foreplay results in prohibiting or invalidating marriages.
 
[2] The second opinion is that a sexual act engaged in under the false assumption of marriage does result in prohibiting marriage with the near relatives of those who engaged in the act. However, fornication and adultery do not bring about such consequences. According to this opinion, if a man hypothetically has sexual relations with his daughter-in-law under a false presumption that she was his wife, then as a result the woman would become unlawful to her husband.* By contrast, if the husband’s father commits adultery with the woman, such consequences will not take place.
 
This is the recognized position of the Shâfi`î
[4] and Mâlikî
[5] schools of law. They argue that sexual intercourse under a false presumption of marriage is still something within the bounds of what is to be respected; therefore it brings about the prohibition of marriage with near relatives, even if the ones who engaged in it are already prohibited to marry one another. However, fornication and adultery are different. It is not to be respected in any way, and therefore it does not bring about the legal consequences of prohibiting marriage with the near relatives of the perpetrators.
[6] The opinion that fornication and adultery do not result in the prohibition or invalidity of marriage with near relatives is the view preferred by the Hanbalî jurist Ibn Taymiyah.
[7] The Hanbalî jurist Ibn al-Qayyim concurs with this view, saying:
[8] The preferred opinion is – as asserted by al-Shâfi`î and by Mâlik in one of the narrations from him – that this act does not result in the unlawfulness of marriage. Such a prohibition requires evidence, and there is no evidence from the Qur’ân, the Sunnah, nor is there consensus nor there any valid juristic analogy to support such an opinion.
 
Notes: [1] al-Mabsût (4/702, 9/117, and 24/64) and Badâ’i` al-Sanâ’i` (2/260) [2] al-Tahqîq (2/275), Sharh Muntahâ al-Irâdât (2/256) and Kashshâf al-Qunnâ` (5/82) [4] Manh al-Jalîl (3/330) and Sharh al-Kharashî (3/209) [5] al-Umm (8/270) and Tuhfah al-Muhtâj (7/309) [6] Hâshiyah al-Bujayrimî (3/366) [7] al-Insâf fî Masâ’il al-Khilâf (8/1170) [8] I`lâm al-Muqaqi`în (3/190)

Answer :

In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
We only deal with queries related to the Hanafi Mađhab. Please refer to the relevant scholars of the respective Mađāhib referred to in your question.
And Allah Ta’āla Knows Best
Khalil Johnson
Student Darul Iftaa
Canada 
Checked and Approved by,
Mufti Ebrahim Desai