What is the ruling if the husband mistakenly believed his ownership persisted or was unaware of the prohibition of intercourse?
General Chapter
Al-Mughni
Book of Dowry (Mahr)
Primary text
If the husband believed his ownership had not ceased over the entire woman, as narrated from Malik, or if he was unaware that intercourse was forbidden to him, no legal punishment (Hadd) is imposed due to this doubt (*shubhah*). The dower remains due, and any resulting child is free, with no lineage established to him, and the husband owes the value of the child on the day of its birth. The woman does not become an *umm walad* (a concubine by virtue of bearing a child to her master) to him, even if he subsequently gains ownership of her, because there was no legal foundation for ownership resulting from that act.
Supporting text
The mistress of the concubine has the choice between taking the concubine while pregnant or taking her monetary value, because the husband diminished her value by causing pregnancy. It is argued that she is also entitled to compensation for the defect (*arsh*) because the diminution occurred through his wrongful act, making him like a usurper, or similar to when a claimant demands restitution and the possessor prevents its return.