Ruling on a Nikah in Which the Name of the Elder, Married Daughter Was Given by Mistake

Question

Zayd has two daughters. The elder daughter had already been married (‘aqd) earlier, but because of the husband’s unworthiness the elder daughter too has been living with her parents for about eight years. Now Zayd has married his younger daughter to Bakr, but through an oversight, at the time of the nikah the name given to the agent and the witnesses was that of the elder daughter instead of the younger, and the one conducting the nikah had the groom make the offer and acceptance using that same name.

Answer

If at the time of the nikah the acceptance was conducted naming the elder daughter, who had already been married earlier and is now at her father’s house, then this nikah did not take place with anyone: not with the elder one, because she is not a subject (mahall)

Source: Fatawa Mahmudiyya

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