What is the ruling on the marriage contract when both the husband and wife are captured as prisoners of war (spies) from the non-believers?
General Chapter
Al-Mughni
Book of Jihad
Primary text
The marriage contract is not dissolved. This is the position held by Abu Hanifa and Al-Awza'i. The opposing view, held by Malik, Al-Thawri, Al-Layth, Al-Shafi'i, and Abu Thawr, is that the marriage is dissolved based on the verse: {And [prohibited to you are] the married women except those whom your right hands possess} (Quran 4:24). Evidence cited is the saying of Abu Sa'id al-Khudri that this verse was revealed concerning the captives of Awtas, and Ibn Abbas’s interpretation that it refers to married women captured. The argument against dissolution is that servitude (slavery) does not prevent the initiation of marriage, thus it should not prevent its continuation, similar to manumission. Furthermore, the verse concerning Awtas captives relates to women whose husbands were not captured with them, and the generality of the verse is specified for married women owned within the Muslim territory, thus the point of contention is specified by analogy.
Supporting text
Scholars differentiated based on who captured the couple. If the husband and wife are captured by two different men, the wife belongs solely to the captor of the woman, and the marriage is dissolved based on Quran 4:24. Al-Awza'i stated that if the couple is captured, they remain married during the division (qasmah), and the ultimate purchaser may choose to separate them or affirm their marriage.