الأحكام الفقهية المتعلقة بنكاح أم الزوجة دراسة فقهية مقارنة الباحث الأول: د. خالد مصطفى إسماعيل السليماني الباحث الثاني: د. عيسى مبارك سالـم عجرة

Abstract This study is aimed at examining the jurisprudential rulings related to a man marrying his wife’s mother, whether she is a mother by lineage or by breastfeeding. It also seeks to clarify the various forms of this issue and the ruling for each case. The study adopts the inductive, analytical, and comparative approaches by collecting the relevant juristic issues, analyzing them, presenting the opinions of jurists, comparing them, and explaining the foundations of their views as well as the reasons for their disagreement. The study is divided into an introduction, a preliminary discussion, two main sections, and a conclusion. The first section discusses the categories of women prohibited for marriage, the wisdom behind such prohibitions, and the concept of marriage (nikah). The second section addresses the different forms of marrying the wife’s mother and their legal rulings. The most significant findings of the study include the following: - Islamic law differentiates between the prohibition of marrying a woman’s mother through merely contracting marriage with the daughter, and the prohibition of the daughter which requires consummation with the mother. Mere marriage contract with the mother does not render the daughter prohibited. - Some scholars claimed consensus (ijmaʿ) that contracting marriage with daughters makes their mothers prohibited; however, the correct view is that there is scholarly disagreement on this issue. - The forms of marrying the wife’s mother fall into three main cases: the first case refers to a valid marriage contract without sexual intercourse. In this case, the contract has no effect on the validity of the marriage with the daughter (the wife). However, the prohibition of such a marriage is firmly established, since the wife’s mother is unanimously considered among the women permanently prohibited for marriage. The second case refers to sexual intercourse only without a valid contract. It has two conditions: first, if the sexual intercourse occurred due to a mistaken belief (shubha), it entails the same prohibitions as a valid marriage and establishes permanent prohibition of marital affinity (ḥurmat al-muṣāharah); second, if the sexual intercourse was unlawful (zina), adultery (zina) does not establish the prohibitions that a valid marriage establishes. The third case refers to the combination of contract and sexual intercourse. In this case, the ruling for each aspect follows what has been explained in the previous two cases. - The stronger opinion is that marriage (nikah) literally refers to the contract and only metaphorically to sexual intercourse; therefore, adultery does not produce the same prohibitions as a valid marriage. - Jurists unanimously agree that a valid marriage contract with the daughter followed by consummation permanently prohibits her mother. They differ, however, on whether the prohibition is established by the mere contract without sexual intercourse, and the stronger opinion affirms that it is. - Scholars also agree that the daughter becomes prohibited through sexual intercourse with her mother, though they differ on whether prohibition is established by acts that are less than sexual intercourse. Keywords: Rulings, Prohibited Women, Wife’s Mother, Marriage, Sexual Intercourse under a Mistaken Belief (shubha), Jurisprudential, Comparative.

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