Ruling when the second husband (after two simultaneous marriage contracts) has intercourse without knowing the first marriage preceded his.
General Chapter
Al-Mughni
Book of Marriage
Primary text
If the second husband has intercourse without knowing the wife is already married to the first, they are separated. The wife is entitled to the customary dower (mahr al-mithl) from the second husband, and the first husband must not approach her until three menstrual cycles have passed after the last time the second husband had intercourse with her. This position is stated by Ahmad, Qatadah, Al-Shafi'i, and Ibn al-Mundhir. Ahmad also stated that she is entitled to the dower for the consummation by the second husband, and the dower paid by the second husband is not returned to the first husband, as the dower is compensation for the enjoyment of her person, which accrues to her, similar to unlawful intercourse (shubha) or coercion.
Supporting text
If the situation is known before the second husband has intercourse, she is returned to the first husband, and the second husband has no claim as his contract is void. If the second husband had intercourse without knowledge, it is considered intercourse under a misconception (shubha), obligating the customary dower, and she returns to the first husband. This second marriage requires no formal dissolution as it is void. The dower is only due upon penetration (watu'), not mere entry or non-genital intercourse, because the marriage is void. The customary dower is obligatory because it is due upon sexual contact, not merely the stipulated amount. Abu Bakr suggested the stipulated dower is due, which Al-Qadi considered consistent with the school's framework, but the former view is deemed correct based on the principle that dower is due for the utilization of the sexual faculty.