Is sexual intercourse with a mortgaged female slave permitted for the pledgee?
General Chapter
Al-Mughni
Book of Pledges (Collateral)
Primary text
Sexual intercourse with a mortgaged female slave is forbidden by consensus (*Ijma*). This is established by the verse concerning marital relations or lawful ownership, Quran 24:6, as the mortgaged slave is neither a wife nor a true property held by the right hand in this context. If the pledgee engages in intercourse while fully aware of the prohibition, the prescribed legal punishment (*hadd*) must be administered, as there is no legal ambiguity. The pledge serves as security for a debt, which does not permit intercourse, similar to how renting a slave for use does not permit intercourse without incurring punishment.
Supporting text
If the pledgee claims ignorance of the prohibition, and this claim is plausible (e.g., due to rural upbringing or recent conversion to Islam), the *hadd* is waived. In this case, the resulting child is free, as the act was performed under the mistaken belief of permissibility, analogous to one who mistakes a non-slave for a slave. The pledgee must pay the value of the child on the day of birth because the belief in permissibility prevented the child from being born into slavery, thus depriving the owner of the child's potential servitude.