Ruling on a person who has sexual intercourse with his daughter while mistakenly thinking that she was his wife
2-4-2023 | IslamWeb
Question:
My question is that if a person have sexual intercourse with his daughter while thinking mistakenly thinking that she was his wife, and then realised that she was his daughter, will his wife be prohibited for the person according to the Shafi'i and the Maliki Madhhab?
Answer:
All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad, sallallaahu`alayhi wa sallam, is His slave and Messenger.
If a man has intercourse with his daughter while mistakenly thinking that she was his wife, then her mother is prohibited to him as stipulated by the Shafi’is, as well as the Malikis according to their most preponderant opinion.
As for Shafi’is, it was stated in Sharh Al-Minhaaj: “Marriage shall be nullified by committing a permanent prohibition such as having intercourse with son’s wife)and having intercourse with his wife’s mother or the wife’s daughter, while mistakenly thinking that she was his wife, then the marriage becomes nullified by this act, it is also an impediment to executing the marriage contract from the beginning, whether the woman whom he has intercourse with her was prohibited for him before the marriage contract such his niece or not.”
Al-Jamal said while commenting in (Al-Hashiah): his saying “or her daughter” apparently means if it was his daughter also, thus her mother shall be prohibited for him.
As for the Malikis, it was stated in (As-Sharh Al-Kabir) by Ad-Dardir: (If he enjoyed her daughter) whether this daughter was from him or another father, by having intercourse or foreplay while he wrongly thinks she was his wife, he was hesitated to rule on the prohibition of his wife for him, and this is the approved opinion.
It was stated in (Sharh Al-Kharshi): Whoever wants to enjoy his wife in darkness, for example, and his hand touched her daughter, then he enjoyed her by intercourse or foreplay, whether this daughter is from him or from another father, and he did not realize that, then the scholars were hesitated to rule on the prohibition of her mother for the husband, and the separation between them.
It was stated in “Minah Al-Jalil”: Ibn Shaban and a group of scholars were of the view that he must divorce her, while Al-Qabesi and Abu At-Tayyib Abdel-Mun'em were of the view that it is desirable to divorce her, and this view was adopted by Ibn Mahrez who wrote about it.
However, if it was by intercourse, then the most preponderate view is that the wife becomes prohibited to him, she should also be prohibited from enjoying another also.
Allah Knows best.