What is the ruling regarding sexual intercourse (wet') performed with a wife in an invalid marriage to a close relative?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The majority opinion among scholars holds that sexual intercourse mandates the prescribed legal punishment (hadd). This view is supported by Al-Hasan, Jabir ibn Zayd, Malik, Al-Shafi'i, Abu Yusuf, Muhammad, Ishaq, Abu Ayyub, and Ibn Abi Khaythamah. The basis for this ruling is that the act constitutes intercourse in a prohibited private part without legitimate ownership or a semblance of ownership, while the perpetrator is knowledgeable of the prohibition, thus necessitating the hadd, similar to fornication without the presence of a marriage contract. Furthermore, the apparent validity of the contract (the semblance of permissibility) is considered void because the marriage contract itself is null and void, meaning the necessary condition for permissibility is absent.
Supporting text
Abu Hanifa and Al-Thawri hold that no hadd is obligatory because the act is based on a semblance of doubt (*shubha*), stemming from the apparent existence of a marriage contract, which is normally a cause for permissibility. They argue that since the apparent cause exists, the hadd is averted, similar to one who buys his suckling-brother sister and has intercourse with her.