Is sexual intercourse (Wati') permissible with an indentured servant (Mukataba) without a prior condition stipulated in the manumission contract?

General Chapter

Al-Mughni

Book of Mukātaba (Contractual Manumission)

Book 68 · Issue 2 · Bab 1

Open in Qurani

Primary text

Sexual intercourse with the indentured servant without a prior condition is forbidden (Haram) according to the majority of scholars, including Sa'id ibn al-Musayyib, Al-Hasan, Al-Zuhri, Malik, Al-Layth, Al-Thawri, Al-Awza'i, Al-Shafi'i, and the people of Ra'y (Hanafi scholars). The evidence supporting the prohibition is that the contract of indenture (Kitaba) removes the master's right to utilize her sexual services (Bida'), which is compensated for in cases of mistaken intercourse (Shubha). This is analogous to a sale contract, and the relevant Quranic verse regarding the dominion over private parts (Quran 58:29, referring to 'those whom your right hands possess') is understood to be specific to legally married women. Furthermore, the master's ownership over her is weak because ownership over her benefits has ceased entirely; hence, if she is violated by mistake, the Mahr (dower) belongs to her, distinguishing her from an Umm Walad (mother of the master's child), whose ownership remains until the master's death.

Supporting text

It is argued by some that the master may have intercourse with her during a time that does not interfere with her required work for manumission, based on the generality of the verse {or those whom their right hands possess} (Quran 70:30), as she remains his property.