Ruling on sexual intercourse with one's polytheistic slave-woman
14-11-2014 | IslamWeb
Question:
Aslamu Alaikum, thank you for looking into my question. I have a question which regards slavery, as I was doing some little research on the topic. In Islam, I know that Muslim men can only marry a Muslim, Christian, and Jew. According to a page which talk about Islam and slavery, it was written that a Muslim man can only be intimate with someone from the People of the Book. I always thought that a slave owner can sleep with their slaves, regardless of their religion. One thing is that slaves captured during the wars in Arabia are likely to be polythiests and yet you have hadiths which claim that as soon as the idda period ends, the slave woman is lawful for you. It does not tell you for any religious requirement (http://www.sunnah.com/search/polythiest-husband-captive-intercourse"). However the writer of one particular page says that it's a strong view that pagan slave woman are unlawful for their master. In the comment section, he mentioned that there are different views in this topic. My question is that do you believe that is permissible to sleep with pagan slave woman for if slavery was to return and is this the prevalent view? Jazakallah.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
The slave owner has the right to be intimate with his female slave (who is a Muslim, Christian, or a Jew) because she is his “milk yameen” (that which his right hand possesses) but he cannot marry her. If he wishes to marry her, he has to set her free and then marry her like the Prophet, sallallaahu ‘alayhi wa sallam, did with Safiyyah bint Huyayy 
. He, sallallaahu ‘alayhi wa sallam, set her free and then married her.
Al-Mawsoo‘ah Al-Fiqhiyyah (Fiqh Encyclopedia) reads: “The slave owner is not allowed to marry his slave woman. The author of Al-Hidaayah says: ‘This is because the marriage contract in Islam is established on a basis of partnership and exchange of matrimonial rights and obligations among the spouses and this is incompatible with ownership in case of a slave owner and his slave woman; so there will be no matrimonial rights and obligations in this case.’ Ibn Qudaamah said: ‘This is because the master-slave bond entails deeming it lawful for the slave owner to benefit from the service of his slave woman and to be intimate with her; it cannot be combined with a weaker contract, i.e. marriage…. Therefore, if the man was given the ownership of his wife as a slave (like if he married her as a slave woman, then he bought her from her master), their marriage contract is annulled.’ Ibn Qudaamah asserted that there is no disagreement among scholars concerning this.”
That said, you should know that there is no disagreement among the scholars regarding the following:
1) It is permissible for the Muslim man to marry a free woman from the People of the Book (Christian or Jew), as underlined by Ibn Qudaamah: “There is no disagreement among scholars regarding the permissibility of marrying the free women from the People of the Book.” [Al-Mughni]
2) There is no disagreement among scholars regarding the impermissibility of the Muslim man’s marriage to a disbelieving woman who is not Christian or Jewish. Al-Mawsoo‘ah Al-Fiqhiyyah reads: “It is impermissible for the Muslim man to marry a disbelieving woman who is not from the People of the Book; Allaah, The Exalted, says (what means): {And do not marry polytheistic women until they believe…} [Quran 2:221] This is according to the scholarly consensus. Ibn Qudaamah said: ‘There is no disagreement among scholars that it is impermissible for the Muslim to marry their women or eat their slaughtered animals.’”
As for having lawful intercourse with one’s idolatrous/pagan slave woman (i.e. a non-Muslim slave woman who is not from the People of the Book), jurists held different opinions about this. Most of them maintained that it is forbidden; however, some were of the view that it is allowable given the fact - which you mentioned - that the Companions had slaves from among the women of polytheistic Arabs. The scholars who held that it is forbidden say that this ruling was abrogated by the verse (that means): {And do not marry polytheistic women until they believe.}.
Since you are an Islamic knowledge seeker, as it seems from your question, and you are conducting research on the subject, we will briefly cite the statements of scholars from Ibn Qudaamah’s book Al-Mughni (summarized and restricted to the major points only):
He, may Allaah have mercy upon you, wrote,
As for the people whose free women are impermissible for Muslims to marry of Magians and all other disbelievers save Christians and Jews, it is also impermissible to have sexual intercourse with the slave-women who are from among such people according to the majority of the scholars…. Ibn ‘Abd Al-Barr said, “A group of renowned jurists around the (early) Islamic world (Fuqahaa' Al-Amsaar) and the majority of scholars maintained this opinion. The opposing opinion is held only by few scholars and it is not even regarded as disagreement. In fact, we do not know of any other scholar but Taawoos who maintained this opinion. Anyway, he supported his view with the following evidence:
1) The general meaning of the verse (that means): {And [also prohibited to you are all] married women except those your right hands possess.} [Quran 4:24]
2) Abu Sa‘eed Al-Khudri narrated that: “The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, sent a military expedition to Awtaas tribe on the day of the battle of Hunayn. They took female captives from them. Some of the Companions of the Messenger of Allaah, sallallaahu ‘alayhi wa sallam, were reluctant to have intercourse with the female captives because of them having pagan husbands. So, Allaah, The Exalted, revealed the verse that reads (what means): {And [also prohibited to you are all] married women except those your right hands possess.} He said: They are lawful for them as soon as their waiting period is completed.”
3) Abu Sa‘eed Al Khudri narrated that the Prophet, sallallaahu ‘alayhi wa sallam, said regarding the female captives taken at Awtaas: "There must be no intercourse with a pregnant woman until she gives birth to her child or with the one who is not pregnant until she has had one menstrual period.” [Abu Daawood] It is known that they were idol-worshippers; this is clear evidence indicating the permissibility of being intimate with them.
4) Most of the slave women owned by the Companions were from the polytheist Arabs and it is known that they were idol-worshippers; they did not hold that it was impermissible for them to be intimate with them. It has not been reported that the Prophet, sallallaahu ‘alayhi wa sallam, deemed it unlawful and he, sallallaahu ‘alayhi wa sallam, never forbade any of the Companions from being intimate with their polytheistic slave women.
5) Abu Bakr gave a slave woman to Salamah ibn Al-Akwa‘ from the captives. ‘Umar ibn Al-Khattaab and his son had slave women from the captives of Hawaazin, and so did some of the Companions. Al-Hanafiyyah, the mother of Muhammad ibn Al-Hanafiyyah, was from the captives of the Banu Haneefah tribe. Also, it has been reported that the Companions had Persian female captives as slave women although they were Magians. It has not been reported that the Companions abstained from being intimate with them. This is strong evidence for the permissibility of being intimate with one's polytheistic slave girl if it were not for the scholarly consensus on its impermissibility.
The Hadeeth narrated by Abu Sa‘eed was met with response from the following statements: It is probable that these women had embraced Islam. It was reported about Imaam Ahmad that he was asked by Muhammad ibn Al-Hakam the following question: “From the Hawaazin tribe; were they not polytheists?” He answered that he did not know whether they had embraced Islam or not. Ibn ‘Abd Al-Barr wrote: “It should be noted that the permissibility of having intercourse with one’s polytheist captive was abrogated by the verse (that means): {And do not marry polytheistic women until they Believe.} [Quran 2:221]” [End of quote from Al-Mughni]
Al-Qurtubi 
wrote: “In classical Arabic, ‘nikaah’ refers to both the marriage contract and sexual intercourse. Since Allaah, The Exalted, uses the word ‘nikaah’ in the verse (that means): {And do not make nikaah with polytheistic women until they believe}, it is deemed unlawful for a Muslim man to marry a non-Muslim woman or to have intercourse with her by virtue of ownership.” [End of quote]
Allaah Knows best.