Fatwa ID: 01452

Answered by Mufti Mohammed Tosir Miah

Question:

I have question if above is the ruling about Halalah then why The second Caliph Hazrat Umar ruled during his reign that he will punish those who commit it, those who perform a pre-planned Halala is he not the one we have to do taqleed off rather then Imam abu hanifa  or what was the point hazrat umer banned this in his era, though there are hadith in Bukhari allowing this even sahaba did this and asked Prophet SAW about this, did Hazrat Umer had the authority to do so as it was allowed during Khilafa of Abu bakr?   Question No2: Is below rulling of Imam Sufian or this is Hadith from trimizi as it says trimizi in the end? if this is true hadith then it contradicts with hadith from Bukhari? (This information i have found from internet)   Imam Sufian Sauri says: ? If someone marries a woman to make her Halala (for her ex-husband) and then wants to keep her as wife, he is not permitted to do so unless he solemnises a Nikah afresh, as the previous Nikah was unlawful.? (Trimizi)  

according to following hadith Allah has cursed on some one who does Halalah but it doesnot debar Nikah nikah is still valid as per fatwa from deoband:   The Messenger of Allah said: "Allah curses the one who marries to make a woman Halal for her husband, and the one for whom this is done (i.e. the first husband and the woman)" (Ahmad, Nasai, Tirmidhi)

Answer:

In the name of Allah, the most Beneficent, the most Merciful.

When a woman is divorced three times, this divorce is irrevocable which means that the husband cannot take her back unless she marries another man first.

The general misconception is that marrying another is a solution provided by Shariah in order for the husband and wife to get back together. This is not correct. The meaning of Halalah is that if the woman after being divorced and after observing her iddah (waiting period) wished to marry another man, she can do so. This second husband on his own accord divorces her after having sexual intercourse with her then after observing the iddah, she can remarry her first husband. (The Complete system of Divorce p.53)

It should be borne in mind that this is not a solution provided by the Shariah. Once three divorces are pronounced, the marriage is over and there is no getting together again.

Saaiduna Abdullah Ibn Masud narrates that the Prophet of Allah cursed the Muhill (the one who makes halal) and the muhall lahu (for the one it is made halal.) (Sunan Tirimizi p.231 v.1)

According to the Hanafi Madhab if a woman enters into marriage with another man on the condition made verbally that he divorces her after consummating, the marriage is valid but severely disliked because of the aforementioned hadith. The woman will be free to marry the first husband.

If a person marries without placing a verbal condition but had an intention in his heart to divorce her after consummating the marriage so that she can become lawful for the first husband, this marriage will be considered permissible (Bahur Raaiq p.58 v.4, Fathul Qadir p.34 v.4 & Dars Tirmizi p.399 v.3)

However, the view of Imam Shafi and Imam Ahmad is that whether a person places a condition or conceals it the marriage is not done. He is still a Muhill (the one who makes halal) and if he thereby intends to make her permissible for the first husband, then he is cursed. (Dars Tirimzi p.400 v.3)

Regarding your question on Saaiduna Umar punishing those who pre-planned halalah, there are two ways look at it:

1. He punished those who made a verbal condition for a pre planned halalah.

2. Saaiduna Umar gave such a ruling to make it a deterrent for other people not to consider the issue of halalah after they had divorced their wives three times. It is similar to Saaiduna Umar considering three talaqs to be three and not one to make it a deterrent so that people don’t take the issue of talaq lightly. It has been reported from Saaidina Ibn-Abbas that during the times of The Prophet of Allah (Allah bless him & give him peace), Saaidina Abu Bakr and during the first two years of the caliphate of Saaidina Umar said three talaqs were taken as one. So Saaidina Umar said “people are becoming haste prone in a matter in which there was a room for deferment for them. Therefore it would be appropriate if we enforce it on them.” Then he enforced it on them.” (Sahih Muslim p.447 v. 1)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham