Is sexual intercourse permissible with female slaves captured from polytheistic idolaters (Magians and others besides People of the Book) whose free women are forbidden for marriage?
Chapter on What is Prohibited to Marry and Combining Between Them and Other Matters
Al-Mughni
Book of Marriage
Primary text
Sexual intercourse with female slaves captured from polytheistic idolaters, other than the People of the Book, is permissible by right of ownership (milk al-yameen). This is the position held by the majority of scholars, including Murrah al-Hamdani, Al-Zuhri, Sa'id ibn Jubayr, Al-Awza'i, Al-Thawri, Abu Hanifa, Malik, and Al-Shafi'i. Ibn Abd al-Barr stated that the jurists of the great cities and the majority of scholars hold this view, and any deviation is an anomaly not considered a disagreement. Evidence for this is the general meaning of the verse: "And lawful to you are all others besides those mentioned, provided that you seek them in marriage with your property..." (Quran 4:24). Furthermore, a Hadith narrated by Abu Sa'id recounts that the Prophet (peace be upon him) sent an expedition after Hunayn to Awtas, and they captured slaves. Some companions hesitated to approach the captive women due to their idolater husbands, whereupon Allah revealed: "And lawful to you are all others besides those mentioned, except for those whom your right hands possess" (Quran 4:24), making them lawful upon the completion of their waiting period. Another sound Hadith from Abu Sa'id states that the Prophet (peace be upon him) decreed regarding the captives of Awtas that a pregnant woman is not to be approached until she gives birth, and a non-pregnant woman is not to be approached until she menstruates once. The practice of the Companions, whose majority captives from the Arabs were idolaters, demonstrates permissibility, as no prohibition was transmitted from the Prophet (peace be upon him) or commanded to the Companions.
Supporting text
The permissibility is challenged based on the interpretation of the previous Hadith, suggesting that perhaps those women converted to Islam. Ibn Abd al-Barr argued that the permissibility implied by the general verse (Quran 4:24) is abrogated by the specific verse: "And do not marry polytheistic women until they believe" (Quran 2:221).