What is the legal consequence (punishment, Mahr) if the master has intercourse with the indentured servant when stipulated or when not stipulated?
General Chapter
Al-Mughni
Book of Mukātaba (Contractual Manumission)
Primary text
If the master has intercourse with her while it was stipulated, there is no Hadd punishment, no punitive admonishment (Ta'zir), and no Mahr owed, as this is intercourse that he legally possesses and is permissible for him, resembling intercourse before the indenture contract began. If he has intercourse without a stipulation, he has committed a wrong, and he owes Ta'zir because it is forbidden intercourse. However, general consensus among jurists is that no Hadd is due. The evidence for no Hadd is that she remains his property, and Hadd is not imposed for intercourse with one's owned slave, such as a rented or mortgaged slave girl. This differs from sale because sale removes ownership, whereas indenture does not, as proven by the statement: 'The indentured servant is a slave as long as he owes even a single Dirham.' Furthermore, he owes her the Mahr because he has utilized a benefit of her body that he was legally prevented from utilizing, requiring compensation for that benefit, similar to the benefits of her body.
Supporting text
There is a reported differing opinion from Al-Hasan and Al-Zuhri, who stated that Hadd is required because the contract of compensation (Kitaba) inherently forbids intercourse, thus necessitating Hadd upon violation, similar to a sale.