This was a problem for me but the Moulana who advised us on the nikah (marriage) told us that our Islamic marriage can go ahead as it would not be registered with the authorities. Of course I was concerned about the legal issues involved but in the end I accepted the Moulana’s assurances as well as her undertaking that she will get the divorce done.
To make a long story short, after a year she had still not divorced the non Muslims and has made absolutely no attempt to do so. 8 weeks ago I pronounced talaq (divorce), as I am unable to even touch her knowing that she is married to someone else.
My questions are these:
1. Are we actually married Islamically?
2. Is her dowry valid and is she entitled to it, given that she still chose to remain married to someone else?
A:According to the Law of Islam when a woman embraces Islam her nikah with a non-Muslim husband automatically breaks, even without the kaafir (non Muslim) husband issuing a talaaq. However, before she can remarry a Muslim this woman has to separate from her kaafir husband and spend an iddat (waiting period) of three haidh after which she will be free to marry. Therefore, if you married her after this iddat period then your nikah to her was valid and binding. There was no need to issue a talaaq.
As for the court divorce, that is of no consequence in Islam. Assuming this woman was still living with her kaafir husband then even if a court divorce was processed, you would still not be allowed to marry her Islamically since she had not passed the mandatory iddat.
We therefore advise not to worry about the court divorce. Your nikah to her was valid if it took place after three menses. If you still wish to keep her in your nikah, you can revoke the talaaq and take her back into your nikah.
The dowry you agreed upon for her was valid and binding because your nikah was valid. She is, therefore, still entitled to it. I reiterate, your wife is out of the nikah of the kaafir. She is not married to him any more.
And Allah knows best
Mufti Siraj Desai