Legal Disabilities to or Restrictions on Marriage

[Legal Disabilities to or Restrictions on Marriage]

The first type: The woman taken as a lawful wife should be

free from that which would prohibit her marriage. There are nineteen restrictions.'

1. That she be married to another.

2. That she be in a legally prescribed waiting period [which precedes marriage] to another [person], regardless of whether that period is due to [the husband's] death, to divorce, to suspi­cion [of adultery], or is being cleared from suspicion aroused by [her] owner [that is, being a concubine-slave of the owner].

3. That she be an apostate for having uttered an expression of unbelief.

4. That she be a Magian.9

5. That she be an idolator or freethinker (zindiq) who fol­lows neither a prophet nor a book. Women in this category include those who follow the doctrine of libertinism-marrying them is not lawful; also [included in this category is] every female subscribing to a false doctrine whose believer is deemed an infidel.

6. [If] she is a follower of a revealed religion (kitabiyah)1⁰ which she adopted after conversion or after the Prophet's mis­sion [as Messenger of God], and who furthermore is not a de­scendant from the Children of Israel, unless both conditions apply, marrying her is not permissible; but if she lacks genealogy only, then [among the jurisprudents] there is no consensus.

7. That she be a slave and the marrier a free man who is capable of marrying a free woman or who fears committing fornication (Canal).”

8. That she be totally or partially a slave of the marrier.

9. That she be related to the [man] either by descent from his progenitors (used) or collaterals (fusel), or of the collaterals of his first progenitors, or from the first collateral of every pro­genitor after a progenitor. By usul, I mean mothers and grand­mothers; and by his fusel, [male] children and grandchildren; and by fusel awwal fusul, brothers and their children; and by awwal fall from every asl [singular of usul] after it, the progenitor of maternal and paternal aunts, not their children.

10. That she be unlawful [for marriage] through nursing;¹² and among those prohibited by reason of nursing are the rela­tions prohibited in terms of the ^used and fusul discussed above.

However, those forbidden are the ones who have been nursed five times, not the ones nursed fewer times.

11. That she be forbidden because of marriage ties; that is, (a) if the marrier were already married to her daughter or grand­daughter,¹3 or (b) if he previously possessed them [as slaves either] by direct contract or semicontract, or (c) if he had had sexual relations with them in a quasi-contract [common mar­riage], or (d) had sexual intercourse with her mother or one of her grandmothers in a marital contract or quasi-contract; for the mere contract of marriage with a woman renders her maternal female ascendants unlawful. Her collateral relatives are forbid­den only on account of coitus, or if his [the marrier's] father or son had married her before.

12. That the woman be the fifth, ¹⁴ that is, that the marrier already has four [wives] acquired either by marriage or by virtue of [the fact that at least one of his wives is in] the state of the legally prescribed waiting period pending remarriage ('iddat al­raj'ah) to him. But if her divorce is final and she is in another prescribed waiting period ('iddat baynunah),¹⁵ then marrying the fifth is not unlawful.

13. That the marries be married to her sister, her maternal aunt, or her paternal aunt; that is, through marriage he would bring both of them together [as wives]. Marriage is not permissi­ble between a related pair if one is male and the other a female, and thus they cannot be brought together [in marriage].

14. That she be divorced three times by the marrier and thus be unlawful to him unless another husband [muhallil] has sexual intercourse with her in a lawful marriage.”

15. That the marrier has exchanged curses with her; in this

case, after the oath of condemnation, se is or ever unlawful to him.

16. That she be in a state of ritual consecration of the major (hajj) or lesser ('umra) pilgrimage, or that the husband be in the same state; marriage then cannot take place until the completion of the period of sanctification.

17. That she should be a deflowered young woman;¹⁸ mar­rying her is then not permissible until she has reached puberty.

18. That she be an orphan, in which case marrying her is not permissible until she reaches the age of puberty.

19. That she be one of the widowed wives of the Messen­ger* of God or one with whom he has mated, for they are regarded as mothers of the believers; that [restriction] is not applicable in our [al-Ghazali's] time. These are the prohibitive hindrances.