The legal justification for accepting the claim of consummation by the Muli (one whose wife is in captivity) or the Mute ('Inni) but rejecting the claim in a simple divorce dispute?
General Chapter
Al-Mughni
Book of Reconciliation (Return During 'Iddah)
Primary text
The claim of consummation made by the Muli or the Mute is accepted because they are claiming something that maintains the validity of the marriage and prevents its dissolution, which aligns with the original principle (Asl) of the contract's soundness. In the current case, the issue concerns something that removes the marriage bond, such as divorce followed by a period of separation; the dispute is over what establishes the right of revocation, and the principle is the absence of that right. Therefore, the claimant's statement contradicts the original principle and is not accepted without evidence.
Supporting text
Furthermore, the Muli and Mute claim consummation in a situation where seclusion (Khulwa) and opportunity for intercourse were established, as otherwise they would not be entitled to dissolution due to lack of intercourse. In the present matter, neither seclusion nor opportunity was established, as establishing them would necessitate the full dower, making the dispute over a general matter not exclusive to the claimant, hence the denial is accepted without evidence.