Ruling on marrying a man who is intersex or impotent, and the difference between them

Firstly: 

-1-

The
word khuntha (translated here as “intersex”) applies to a person who cannot
be easily characterized as male or female, or the one who has both male and
female anatomy. The word is derived from a root referring to softness,
gentleness and tenderness. 

In
shar‘i terminology it refers to one who has the anatomy of both male and
female, or one who has neither, and has a hole through which he urinates. 

-2-

The
word mukhannath (“effeminate”) refers to a person who behaves like a woman
in gentleness, speech, appearance, movements and so on. 

Effeminate people are of two types.

(i)Those who are created that way; there is no sin on them.

(ii)Those who were not created that way; rather they choose to imitate
women in their movements and speech. This is the type which is cursed in the
saheeh hadeeths.

The
mukhannath or effeminate man is one who is obviously male, unlike the
khuntha (intersex). 

-3-

Intersex people may be divided into two categories, ambiguous and
unambiguous. 

(a)

The
unambiguous intersex individual is one who shows clear indications of being
either male or female, so it is known that this person is a man or a woman.
There is no ambiguity involved here; rather this is a man who has something
extra that was created in him, or a woman who has something extra that was
created in her. With regard to matters of inheritance and other shar‘i
rulings, such an individual is treated in accordance with what he or she
appears to be. 

(b)

The
ambiguous intersex individual is one who shows no clear indications of being
either male or female, and does not know whether he is a man or a woman, or
he has characteristics of both genders. 

This
ambiguity is of two types: one that has the anatomy of both genders, where
other defining characteristics are present in equal measure, and one who
does not have the anatomy of either; rather he has a hole (through which he
urinates). 

-4-

The
majority of fuqaha’ are of the view that with regard to the intersex
individual before puberty, if he urinates from a penis, then he is a boy; if
he urinates like a girl, then this person is female. 

After
puberty, the matter is to be decided by one of the following signs: 

If he
grows a beard, ejaculates, impregnates a woman or has intercourse with a
woman, then he is a man. The same applies if he demonstrates courage and
fighting skills, and stands up to the enemy; this is proof of his
masculinity, as was mentioned by as-Suyooti, quoting from al-Isnawi. 

If
this individual grows breasts that produce milk, or menstruates, or it is
possible to have intercourse with them, then this person is a woman. If this
individual gives birth, then she is definitely female, and this factor is to
be given precedence over all indications to the contrary. 

With
regard to sexual orientation, it is to be taken into consideration when the
characteristics discussed above are unclear. If this person is sexually
attracted to men, then she is a woman; if he is sexually attracted to women,
then he is a man. If he says that he is sexually attracted to both or
neither, then the matter is ambiguous. As-Suyooti said: When the word
khuntha (intersex) is used in fiqh, what is meant is the ambiguous intersex
individual. 

End
quote from al-Mawsoo‘ah al-Fiqhiyyah, 20/21-23 

Secondly: 

The
khuntha or ambiguous intersex individual has both male and female anatomy.
Such individuals are of two types: those in which there is no certainty as
to his gender, and those in which the gender is known. One of the factors to
be taken into consideration is sexual orientation. If he is sexually
attracted to females, then he is a man; if sexually attracted to men, then
she is female. 

The
one who is sexually impotent is the man who possesses male genitalia but for
some reason – whether connected to illness or some psychological, physical
or other reason – is not able to have sex, in which case he will never have
intercourse or pleasure, or produce children. 

Thus
it is clear that not everyone who is impotent is intersex. He may be
impotent because of sickness that has nothing to do with effeminacy. Or a
person may be intersex but is able to have sex and so on. 

(a)

With
regard to marriage of one who is intersex, if it is an unambiguous case,
then according to how he or she is classified, he or she may marry someone
of the opposite gender. If it is an ambiguous case, then the marriage of
such a person cannot be valid, the reason being that he may be male, in
which case how can he marry another male, or may be female, in which case
how can she marry another female like her? If this individual is sexually
attracted to females and claims to be a man, this is a sign that he is most
likely male, and vice versa. 

Ibn
Qudaamah (may Allah have mercy on him) said: 

One
who is intersex must be either ambiguous or unambiguous. If he is not
ambiguous, in the sense that he has male characteristics, then he is a man
and comes under the rulings on men; if this person has female
characteristics, then she is a woman and comes under the rulings on women.
If he is ambiguous, with no signs of being either male or female, then in
this case there is a difference of opinion among our companions as to
whether he can get married. Al-Khuraqi said that it depends on what he
himself says; if he says that he is a man and is naturally sexually
attracted to women, then he may marry a woman; if he says that he is a woman
and is naturally sexually attracted to men, then she may marry a man,
because this is something that we cannot know except on the basis of what
the individual says. It is not a claim that affects the rights of another
person, so he is to be taken at his word, just as a woman is to be taken at
her word with regard to menses and ‘iddah. He may find that he is naturally
attracted to one gender or the other; the way that Allah has created living
beings is that the male is usually attracted to the female and vice versa.
This sexual orientation is a matter that is very private and may not be
known to others. As it may be difficult for us (in the case of ambiguity) to
see any clear external signs, reference should be made to his hidden
feelings and what he himself says about them. 

Al-Mughni,
7/619 

The
view that marriage of an ambiguously intersex individual is not valid is the
view of the majority of scholars. But in that case what should he do if he
has sexual desire? The answer is that we should tell him: Be patient until
Allah changes your condition to something better. 

Shaykh
Muhammad ibn Saalih al-‘Uthaymeen (may Allah have mercy on him) said: 

With
regard to marriage of an ambiguously intersex individual who has both male
and female anatomy – that is, he has a penis like a male and a vulva like a
female, and it is not clear whether he is male or female, such as if he can
urinate both like a man and like a woman, and there is no other sign to
determine whether he is male or female – in this case marriage is not valid
for him, and he should not marry either a woman or a man. He should not
marry a female because of the possibility that he may be female, and a
female cannot marry another female; nor should he marry a male because of
the possibility that he may be male, and a male cannot marry another male.
In this case he should remain unmarried until the matter becomes clear; when
it becomes clear, if he is male then he may marry a female, and if he is
female then she may marry a male. The ruling is that marriage is temporarily
forbidden, until the matter becomes clear. 

ash-Sharh al-Mumti‘,
12/160 

The
shaykh (may Allah have mercy on him) also said: 

If he
has sexual desire and is currently disallowed to marry according to
sharee‘ah, then what should he do? We would tell him that the Messenger
(blessings and peace of Allah be upon him) said: “Whoever among you can
afford it, let him get married, for it is more effective in lowering one’s
gaze and guarding one’s chastity. Whoever is not able to do that must fast.”
So we would tell him to fast. If he says that he cannot fast, then he can be
given some medicine to make things easier for him. This is better than
telling him to extract semen in ways that are not permissible. 

ash-Sharh al-Mumti‘,
12/161 

(b)

With
regard to marriage to a man who is impotent, there is no shar‘i impediment
to doing so, but it is essential to tell the truth to the one whom he wants
to marry, otherwise he is sinning and she has theright to annul the
marriage, because sexual pleasure and producing offspring are two of the
most important purposes of marriage, and the right to them belongs to both
spouses. 

In
al-Mawsoo‘ah al-Fiqhiyyah (31/16) it says: 

Impotence is a problem that could give the wife the right to demand
separation from her husband, after giving the husband one year (to see if
things change) according to the majority of fuqaha’. 

Some
of the Hanbalis, including Abu Bakr and al-Majd (the grandfather of Ibn
Taymiyyah) favoured the view that she has a right to immediate annulment of
the marriage. 

The
majority quoted as evidence for their opinion the report narrated from ‘Umar
(may Allah be pleased with him) who gave an impotent man one year (to see if
things changed). A further reason is that what is important for the wife is
seeking to be chaste by getting married, and she wants to attain that
quality. Missing out on the purpose of a contract gives the right to cancel
it, and the scholars are unanimously agreed that there should be the choice
of cancelling when selling something in which there is a defect because it
may cause financial loss, even if that loss is small. Hence it is more
appropriate to have the option of cancelling in the event of missing out on
one of the purposes of marriage. End quote. 

A
woman may agree (to marry a man who is impotent) if she has no sexual desire
because of sickness or old age. What is wrong with him marrying her so that
she can take care of him and keep him company, and he can give her
maintenance and protection, and other things that are also purposes of
marriage? 

Shaykh
Ibraaheem ibn Muhammad ibn Saalim Dawyaan al-Hanbali (may Allah have mercy
on him) said: 

Marriage is permissible for one who has no desire, such as one who is
impotent or old, because there is no shar‘i impediment to doing so. 

Manaar as-Sabeel,
2/91 

The
one who is impotent is the one who is incapable of having intercourse; he
may desire it but he is unable to do it. 

The
wife loses the right of annulment if she knew about her husband’s sexual
weakness, but she decided to stay with him. 

Shaykh
Muhammad ibn Saalih al-‘Uthaymeen (may Allah have mercy on him) said:

If at
any time she said, “I accept him even if he is impotent”, then the option of
annulment is permanently waived; such a case is that of a woman who agreed
to marry an impotent man, then she felt desire as other women do and wanted
to annul the marriage. In this case we say: you do not have that option. If
she says at that time, “I liked him and was happy with him, but it is been
so long and now I don’t want him,” we say to her: you have no option in this
matter, because you were too hasty. 

Ash-Sharh al-Mumti‘,
12/211 

See
also the answer to questions no. 102553 and
10620

To sum
up: in the case of an intersex individual, if it is not known whether he is
male or female, it is not permissible for him to get married; if it becomes
clear that he is male, then marriage to him is valid, so long as you seek
advice in such a case from a trustworthy doctor who specializes in
hereditary matters and the like, in order to confirm his gender and the
possibility of marrying him. 

As for
one who has weak desire or is even impotent, marriage to him is valid, but
he must disclose his condition before marriage. If he discloses it, marriage
to him is valid for a woman who thinks that she can live with him on that
basis, such as if she also has no desire for men. But in the case of the
young woman who wants to get married and have a sexual relationship, as
other women like her do, we do not advise her to go ahead with it, because
she may think that she can be patient in this situation, then find out that
she cannot be patient, and she may think of doing something haraam – Allah
forbid – to make up for what she has missed out on. 

Whatever the case, what we advise you to do is not to go ahead with this
risk and cause trouble for yourself by accepting marriage to someone like
this. 

And
Allah knows best.