Does physical contact below the private parts with lust upon a female slave establish the prohibition of marriage affinity?
Chapter on What is Prohibited to Marry and Combining Between Them and Other Matters
Al-Mughni
Book of Marriage
Primary text
There are two narrations regarding whether physical contact below the private parts with lust upon a female slave establishes the prohibition of affinity. The first narration affirms it, related from Ibn 'Umar, 'Abdullah bin 'Amr, Masruq, Al-Qasim bin Muhammad, Al-Hasan, Makhul, Al-Nakha'i, Al-Sha'bi, Malik, Al-Awza'i, Abu Hanifa, and 'Ali bin Al-Madini, and it is one opinion of Al-Shafi'i. This is because it is a form of enjoyment, thus incurring the prohibition of affinity, similar to sexual intercourse, and because it is sensual touching, it necessitates the prohibition like coitus.
Supporting text
The second narration states that it does not establish the prohibition because it is a mere touching that does not necessitate ritual bathing (ghusl), just as contact without lust does not establish the prohibition. Furthermore, establishing the prohibition must be by explicit text or analogy to a text with established rulings. Sexual intercourse entails obligations like the deferred dower (mahr), establishment of marital status (ihsan), obligatory ghusl, waiting period ('iddah), nullification of Ihram, and invalidation of the fast, which touching does not share.