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The Effects of Incest on the Validity of Marriage

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.

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]

Abû Hanîfah said: “Many jurists do not regard caressing and kissing to bring about a prohibition (of marriage with near relatives) since there is no textual evidence to establish such a prohibition. However, as a matter of caution, we take it to be so and construe a cause that calls to a sexual act to take the role of the sexual act itself.” [3]

The following is cited as evidence in support of the view 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:

1. Allah says: “And marry not women whom your fathers married – except what is past: It was shameful and odious – an abominable custom indeed.” [Sûrah al-Nisâ’: 22]

They argue that the Arabic word nikâh used in this verse not only refers to marriage but also to the act of sexual intercourse.

2. Whatever marital relations become prohibited by virtue of a lawful sexual act likewise become prohibited if an unlawful sexual act takes place, like sex with a woman during her menstrual cycle.

3. Marriage is a contract that can be invalidated in the case of a sexual act under a false assumption of marriage. Therefore, it also becomes invalidated by way of fornication or adultery.

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.

It is incorrect to compare an unlawful sexual act to marriage in effecting a prohibition of marriage with near relatives. There are differences between the two. Allah has made the relationship by marriage (i.e. in-law relationships) the partner of biological lineage. It is a blessing which he has bestowed upon his servants. Both types of relationship are blessings and from His grace. The ties of kinship through marriage are not established by unlawful means any more than legitimate lineage is established by such means.

Indeed, if lineage – which is the most fundamental relationship – does not come about from unlawful sexual intercourse, then in-law relationships which are subsidiary and which resemble the blood relationships are even further from being established by way of unlawful sexual intercourse.

Moreover, had marriage been forbidden by an unlawful sexual relationship by virtue of it bringing about an in-law type of relationship, then it follows that a full mahram relationship would be established between the relevant parties as well. Since this is not the case, then the unlawfulness of marriage cannot be established either.

What is more, Allah says (in the verses enumerating prohibited degrees of marriage): “…and the wives (halâ’il) of your sons” [Sûrah al-Nisâ’: 23] Women whom a son had fornicated with are not called halâ’il.

Allah says: “And marry not women whom your fathers married – except what is past.” [Sûrah al-Nisâ’: 22] What is meant here is marriage that is the very opposite of unlawful sexual relations. The word for marriage – nikâh – does not appear even once in the Qur’ân with the meaning of fornication or referring to sex outside of the bonds of marriage.

Al-Shâfi`î debated some Iraqi jurists on this matter.*

This view is also supported by the fact that the rulings pertaining to marriage that Allah has set forth – the waiting period, mourning for widows, inheritance, lawful and prohibited degrees, attribution of lineage, the obligation of maintenance, that of dowry, the possibility of the khul` separation, of divorce, the oat of abstention, that of limiting a man to four women and that of justice between them, the ruling of revoking a divorce, that of consummated chastity, of restoring lawfulness to a former husband, and other such rulings – none of them apply to fornication and adultery, with the exception of some disagreement about the waiting period and dowry. However, the correct view is that there is no dowry for prostitution, as clearly stated in the Sunnah of Allah’s Messenger (peace be upon him). Also, the minds of people are naturally predisposed to having an aversion to it. Then, how can the prohibition of marriage on the basis of an in-law like relationship be established through fornication?

Ibn al-`Arabî writes: “In a case where no direct lineage can legally be established, it follows that no in-law relationship can be established. Therefore, fornication with a woman or her mother does not make marriage unlawful. What becomes unlawful by virtue of something lawful does not become unlawful on account of something unlawful.” [9]

Al-Shinqîtî writes: “The stronger of the two opinions with respect to the evidence is that fornication and adultery do not prohibit or nullify a valid marriage.”

The Hanbalî jurist Ibn al-`Uthaymîn says: [10]

The Hanbalî position is that fornication and adultery are like marriage in that the mother and the daughters of a woman with whom a man has unlawful sexual relations with become permanently unlawful for that man to marry. This is one of the strange opinions in the body of knowledge in that it makes unlawful sex like marriage…

The correct opinion is that nothing brings about prohibition of marriage through in-law relationships except a valid contract and that is because whenever Islamic Law mentions a contract in an unqualified statement, it refers to a valid contract. Therefore, the correct ruling on this matter is that what comes by way of an unlawful relationship does not bring about the prohibition of marriage similar to the prohibition of in-law relationships.

What about the perpetrator of the crime and the woman victim in a case of rape?

As for the man who raped his daughter-in-law, if he was of sound mind and committed the crime of his own free will, and if this is established in a court of law by confession or by proper procedures of evidence, then the prescribed punishment for adultery is to be carried out upon him. This punishment is for the convicted perpetrator to be stoned to death.

The evidence for this is related by Jâbir b. `Abd Allah that a man from the clan of Aslam approached the Prophet (peace be upon him) and informed him that he had committed adultery and bore witness against himself four times. The Prophet (peace be upon him) then ordered that the man be stoned. The man who committed the crime had been a married man. [Sahîh al-Bukhârî (6429)]

This sentence cannot be carried out by anyone other than the authorities. If the public were to take the law into its own hands, this would lead to anarchy. It can only be carried out after an official judicial verdict to that effect is issued. Moreover, capital punishments are prescribed to only be carried out by the state. They require the due process of law to be fully observed whereby the crime of adultery is legally established and all prohibitive factors and any doubts that would lead to a suspension of the sentence are ruled out.

As for the woman, since she was forced into the act, she is guilty of no sin or crime. Her innocence is a point about which all scholars are agreed.

She is also definitely not to be separated from her children. Indeed, they are her children by the consensus (ijma`) of the people of knowledge. It is unlawful to separate them. It is related from Abû Ayyûb al-Ansârî that Allah’s Messenger (peace be upon him) said: “Whoever separates between a woman and her child will be separated by Allah from those he loves on the Day of Judgment. [Mustadrak al-Hâkim (2/63)]

Al-Hâkim said about this hadîth: This is an authentic hadîth according to the conditions of authenticity set forth by Muslim, though he did not include it in his compilation.”

And Allah knows best.

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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)

[3] al-Mabsût (9/117), Badâ’i` al-Sanâ’i` (7/41), Tabyîn al-Haqâ’iq (6/106), Fath al-Qadîr (3/216), and al-Bahr al-Râ’iq (3/105)

* Note form the editors: Such a situation may seem far-fetched, but it is conceivable where a man and his father have both recently married women through arranged marriages and the father mistakenly goes to the wife of the son or vice-versa.

[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)

* [Due to its technical nature, this debate has been moved to the endnotes.] The debate was as follows:

Al-Shâfi`î said: “Fornication does not make what is lawful unlawful. This is what Ibn `Abbâs said. This is because the unlawful is the opposite of what is lawful and something is not to be compared by way of analogy with its opposite.”

Someone said: “What do you say about a man’s wife who kisses his son with lust? Does she become unlawful to her husband forever?”

Al-Shâfi`î said: “Why do you say this? Since Allah has only forbidden the mothers of your wives and the like by way of marriage. It is therefore not permissible to compare the unlawful with the lawful.

Someone said: “I merely see one sexual act and another.”

Al-Shâfi`î responded: “One is a sexual act that is praiseworthy and consecrates a marital relationship while the other is a sexual act that a person gets stoned for. One is a calumny while the other is a blessing by which Allah establishes lineage and in-law relationships and people’s rights, and by which He makes you a mahram to your wife’s mother and daughter so you can be their escort on a journey. Allah has made fornication a calumny by prescribing a capital punishment for it in this world – and the Hellfire for it in the Hereafter, except if He forgives it. So you would compare by way of analogy the unlawful calumny to the lawful blessing?”

Al-Shâfi`î then posed the question: “Consider a woman who was divorced thrice irrevocably who can only be made lawful again to her former husband if she marries another man who consummates the marriage with her (and then divorces her). Would you say that she could be made lawful to her former husband by committing adultery with somebody else because it is ‘one sexual act and another’?”

He replied: “This is a mistake, because Allah has only made marriage lawful (for the former husband) by way of another husband.”

Al-Shâfi`î said: “Likewise is what Allah has prohibited in His Book by way of marriage with a spouse and by way of consummation of that marriage.”

He said: “Is there anything that becomes unlawful through the practice of what is lawful but does not become unlawful through the practice of what is unlawful?”

Al-Shâfi`î replied: “Yes, when a man has married four women, it becomes unlawful for him to marry a fifth. Would you claim that anything would become unlawful for him had he fornicated with four women?”

He conceded: “No, the unlawful act does not prohibit for him what the lawful act prohibits him.” Then he introduced the argument: “If a woman became an apostate, she would consequently become unlawful to her husband.”

Al-Shâfî`î observed: ‘Indeed, and to the rest of creation as well. Moreover, she would be executed and her wealth would be repossessed.”

He said: “(The point is) that here we have an unlawful act making a lawful relationship unlawful.”

Al-Shâfî`î said: “As for matters like the ones we are discussing with respect to women, that is not the case.”

[9] Tafsîr al-Qurtubî (13/59)

[10] al-Sharh al-Mumti` `alâ Zâd al-Mustaqni` (10/200)

From IslamToday.com