44. Women who come as captives of war, leaving their husbands behind in Dar al-Harb (Domain of War), are not prohibited, for their marriage is nullified by virtue of their entry into Dar al-Islam (Domain of Islam). A man may marry such women and, if they happen to be his slave-girls, he may have sexual relations with them. There is disagreement, however, among jurists as to what should be done if both husband and wife have been taken captive together. Abu Hanifah and the jurists of his school are of the opinion that their marriage should remain intact. Malik and Shafi'i, on the other hand, argue that their matrimonial contract should be rendered void.

Many misunderstandings seem to persist about the right to have sexual relations with one's slave-girls. It is pertinent to call attention to the following regulations of Islam:

(1) Islam does not permit soldiers of the Islamic army to have sexual relations with women they capture in war. Islamic Law requires that such women should first be handed over to the government, which then has the right to decide what should be done with them. It may either set them free unconditionally, release them on payment of ransom, exchange them for Muslim prisoners of war held by the enemy or distribute them among the soldiers. A soldier may have sexual relations only with that woman who has been entrusted to him by the government.

(2) Even then, he may not have sexual relations with her until at least one menstrual period has expired; this is in order to establish that she is not already pregnant. If the woman concerned is pregnant one may not have sexual relations with her until after the birth of her child.

(3) It is not necessary for female captives of war to be People of the Book in order that sexual relations with them be permitted. The man to whom such a woman is entrusted has the right to have sexual relations with her regardless of her religious affiliations.

(4) Only that person to whom a female captive has been entrusted has the right to have sexual relations with her. Any child born to her will be regarded as the legitimate child of her master, and will be entitled to all the rights laid down by the Law for one's issue. Moreover, once such a woman has given birth to a child she may not be sold to anyone, and on the death of her master she automatically becomes a free person.

(5) If the master allows the woman to marry someone else he ceases to have the right to sexual relations with her but retains the right to have her serve him in other ways.

(6) Although the Law has fixed the maximum number of wives at four, it has set no limit with regard to slave-girls. The Law does not lay down a limit in order to encourage people to accumulate huge armies of slave-girls, and thereby turn their homes into dens of sexual enjoyment. Rather the Law does not define the limit because the effects of war and the total number of female captives that would have to be disposed of after a certain war are unpredictable.

(7) In the same way as other rights of property are transferable, so are the proprietary rights regarding the captives of war that have been legally entrusted to a man by the state.

(8) Since the regular conferment of property rights is as legal an act as that of marriage, there is no basis for a person who feels no revulsion towards the idea of marriage to feel revulsion towards the idea of having sexual relations with a slave-girl duly entrusted to him.

(9) If a government confers proprietary rights to a man over a female captive of war it forfeits the right to withdraw those rights in the same way as the guardian (wali) of a woman ceases to have the right to withdraw his agreement to the marriage proposal after the marriage has been contracted.

(10) If a military commander permitted his soldiers to temporarily use the female captives as objects of sexual desire and distributed them among the soldiers for that purpose, such an act would be considered unlawful by Islamic Law. Such an act is not essentially different from fornication or adultery. For details see my book Tafhimat, vol. 2, pp. 366-84, and Rasai'il wa Masa'il, 6th edition, Lahore, 1976, vol. 3, pp. 102-4.