Is it permissible for a man who purchases a female slave and frees her before completing her waiting period (istibra') to marry her immediately?
General Chapter
Al-Mughni
Book of Waiting Periods ('Iddah)
Primary text
It is not permissible for a man who purchases a female slave and frees her before her required period of abstinence (istibra') to marry her until this waiting period is completed. This is the view held by Al-Shafi'i. The prohibition stems from the necessity of establishing that the womb is empty (not pregnant), which is the purpose of the istibra'. The Prophet, peace and blessings be upon him, established the requirement of one menstrual cycle (hayda) for the istibra' of a slave woman due to pregnancy concerns, mirroring the mandatory waiting period for free women after divorce or the death of a husband, which is for the same reason concerning potential pregnancy. To free her and marry her immediately risks the immediate cohabitation of a potentially pregnant woman, which violates the established legal principles derived from the Sunnah: "A pregnant woman shall not be sexually approached until she delivers, and a non-pregnant woman until she menstruates." Since her pregnant status is unknown, this action is prohibited as it contravenes the Book and the Sunnah.
Supporting text
The scholars of the opinion of Al-Ra'y (Hanafi school) permit the master to marry her immediately after freeing her without waiting for the istibra'. Imam Abu Yusuf allegedly permitted this in the case of Caliph Harun al-Rashid. Furthermore, Al-Shafi'i holds that if the seller of the slave woman was one who was not permitted to have sexual intercourse with her (e.g., a minor, a woman, or one who was castrated), then the purchaser may marry her immediately upon freeing her, whether he had sexual intercourse with her or not, because she was not considered 'frash' (a state of being sexually available to her previous owner).