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Marriage to second wife and divorce

Answered according to Hanafi Fiqh by DarulUloomTT.net

Question

Assalaamu Alaikum

I have a question concerning marriage and mainly that of being a second wife.

So a woman gave her husband permission to marry again and have a second wife. Now after 5 years of marriage to the second wife, the woman (first wife) forced the husband to divorce the second wife although there were not any grounds for divorce. In an effort to remarry the man, the second wife marries another man for a couple of hours and divorced the man without having any sexual relations with the man. So the man whose wife gave permission to marry again remarried the second wife.

Is this permissible in Islam and is this marriage between the second wife and the man valid?

Answer:

Wa Alaikum Assalaam,

الجواب و بالله التوفيق

The marriage between the second wife and the man is not valid for two main reasons:

  1. From what you have written, I presume that the second wife was divorced with three divorces. this is why she was requested to marry a man and then be divorced, after which she will re-marry the first husband. This being the case, it was essential for her to have sexual relations with the husband in the second marriage in order for her to be halal (lawful) for the first husband. This did not occur. Hence, her returning to the first husband through marriage is not valid.
  1. You have mentioned that ‘she divorced the man’. In Islam, a woman cannot give a divorce to a man. If a woman is having a difficult marriage with her husband and the husband does not want to divorce her, then the wife can go through the process of Khul’a or Faskh of the Nikkah in order to end the marriage. The Shariah has given these avenues for a wife to come out of a marriage when she has valid reasons to do so, but has not allowed a wife to divorce the husband.

In what you have written, it is mentioned that ‘the woman divorced the man.’ This is totally wrong, and a divorce did not occur through this. What was required was that the man gives the divorce. When this happens, then the woman is required to go through her iddah of three monthly courses (menses). After this, she will be allowed to remarry the first husband.

Since this did not occur, her marriage with the first husband is invalid. There is no marriage between them. Both are required to separate from each other and follow the guidelines of the Shariah in this matter so that their marriage with each other can be halal and they will be saved from living in sin.

And Allah Knows Best.

Mufti Waseem Khan.

7/10/16.

Assalaamu Alaikum,

In light of your response to my question, several additional questions have arisen in which I need to ask:

1) I know Islam is big on intentions so with the scenario presented, was it haram to intend to marry someone just to divorce them in order to remarry someone else?

2) Why is it so important to have sexual relations with a man after marriage; referring to the second marriage before the woman returned to the first marriage? In general, is it a sin not to want to have relations with a man you just married since you don’t know him as yet and is not comfortable being around him. This is the case of many arranged marriages. Please explain.

3) If the man gave the divorce in the marriage would that have made the marriage valid?

4) You mentioned a process of Khul’a or Faskh of the Nikkah in order to end a marriage. Can you please explain what this is and how it is done?

Wa Alaikum Assalaam,

الجواب و بالله التوفيق

  1. Yes it is haram to intend to marry someone just to divorce that person in order to remarry someone else.

This sort of intention comes about when a woman has been divorced from her husband with 3 divorces, and in order to remarry her, the husband gets her to marry another man so that the second husband can divorce the woman to become halal for the first husband. This, in the term of the Quran is called ‘Tahleel’ and is commonly referred to as ‘Halalah’ which means to make someone halal (lawful).

This practice of conveniently marrying a person with the sole intention of the woman becoming divorced to remarry the first husband is a grave sin, and those who are involved in setting up such marriages are sinful in Allah’s sight.

It is about such people, the Prophet (S.A.S) said, ‘The curse of Allah be upon the man who does Halalah (i.e the man who marries a woman solely to divorce her so that she remarries the first husband), and the curse of Allah be upon the one for whom ‘halalah’ is done (i.e. the first husband with whom the woman is going to remarry after being divorced by the second husband). (Tirmidhi).

From this tradition, it shows that all those who are involved in such pre-arranged schemes are all cursed by Allah. It is for this reason some Scholars have stated that such an arrangement is an unlawful one and such a marriage shall be no marriage at all but adultery.

  1. It is very important that the second marriage be consummated so that after being divorced the woman can return to the first husband. If it is not consummated, then she will not be lawful for the first husband and if they become married, the marriage will be null and void.

Consummating the marriage by having sexual relations with the second husband is clearly evident and established from the hadith of the Prophet (S.A.S). In this regard, it is narrated that the wife of a certain companion was divorced with three divorces and the marriage had ended. After some time, she got married to another person. After being married, she was not pleased and happy in this marriage, and wanted to be divorced from this person and remarry her former husband. She then came to the Prophet (S.A.S) and expressed her intention. Upon this, the Prophet (S.A.S) said to her that it was not possible for her to return and remarry her first husband, unless and until she has sexual relations with the second husband. (Sahih Bukhari, Bk. 73, Hadith 107).

In another tradition, Aisha (R.A) narrated, ‘A man divorced his wife thrice, then she married another man who also divorced her. The Prophet (S.A.S) was asked if she could legally marry the first husband (or not). The Prophet (S.A.S) replied, ‘No, she cannot marry the first husband unless the second husband consummated his marriage with her, just as the first husband had done.’ (Sahih Bukhari, Bk. 63, Hadith 187).

These traditions make it abundantly clear that when a man marries a divorced woman (who was divorced with three divorces), and wishes to divorce her to enable her to marry the first husband, then the second marriage must be consummated before the man can divorce her.

With respect to what you have mentioned that when a woman marries a man she may not want to have sexual relations with him immediately and may wait a little. This is understandable, and in cases like these, the husband will also understand how his wife feels, and when they are comfortable with each other, they will have sexual relations. This however, is not the case in question. The issue under discussion is where a woman who was divorced with three divorces entered a second marriage with the sole intention of getting a divorce only to return to the first husband.

The woman in this case had absolutely no intention of marrying the man or consummating the marriage. It was only a pre-arranged scheme that was planned in order that she returns to the first husband. Such schemes are totally haram and sinful.

  1. In the second marriage, if the man had given a divorce after having sexual relations with the woman, and he did not revoke the divorce, but allowed it to take effect, then if the woman had remarried the first husband after she had fully completed her iddah (waiting period of the divorce of the second marriage), then this marriage will be valid even though the entire planned arrangement was sinful.
  2. Khul’a is the name of an arrangement which is initiated by the wife to be released from a marriage (for valid reasons) when the husband does not want to divorce her. The manner of this is that the wife proposes to the husband that she will return the Mahr (dowry) or part of it to him in exchange for a divorce/separation. When the husband agrees to this, then an irreversible divorce will take place and the woman will go through her Iddah like the Iddah of divorce.

Faskh means ‘to annul’ and it refers to annulment of the marriage’. When Faskh occurs, the marriage comes to an end.

Faskh comes about where there are problems in the marriage which make it difficult for the spouses to continue to live in goodness. In such cases where the wife feels that she has valid grounds for a divorce and her husband does not want to release her from the marriage, she can take her case to a Qadhi (Islamic Judge) and seek a ‘separation’ or an annulment of the marriage. The Qadhi, after investigating the case and listening to both parties, will then make a judgement of Faskh when he sees that the wife has valid reasons for a separation.

And Allah Knows Best.

Mufti Waseem Khan.

13/10/2016.

This answer was collected from DarulUloomTT.net, which is operated under the supervision of Mufti Waseem Khan from Darul Uloom Trinidad and Tobago.

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