Are puberty (Bulugh) and sanity (Aql) necessary conditions for Ihsan at the time of intercourse?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
Puberty and sanity are required conditions. If one commits intercourse while a child or insane, and only later reaches puberty or sanity, one is not considered married (Muhsan). This is the position of the majority, including the Madhhab of Al-Shafi'i.
Supporting text
Some companions of Al-Shafi'i argue that the person does become married (Muhsan), similar to a slave who commits intercourse while enslaved and then is freed. The primary argument against this view is the Prophet's specification, 'The previously married woman for the previously married woman,' implying that the status of being previously married (Thuyubah) is specifically considered. If it were established earlier, stoning would be required before puberty and sanity, which contradicts consensus. The ruling on the divorced man regaining his wife after three divorces is distinguished because that is considered a penalty, whereas Ihsan is established upon the perfection of grace (Kamal al-Ni'mah) in one's case, which is more complete in the sane and mature person.