Is intercourse and ejaculation required in halalah

1) Is preplanned Halaalah valid although it is haraam

2) The 2nd husband that she marries, during intercourse is it sufficient to just penetrate or does he have to ejaculate inside her for the halalah to be valid?

3) Will the Halalah still be valid if he wears a condom during intercourse?

4) how long is she required to be married to him before he can divorce her, for the halalah to be valid?

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

Answer

1) 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 Radiallahu  Anhu narrates that the Prophet of Allah Sallallahu Alahi Wasalam 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 women 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 (RA) and Imam Ahmad (RA) 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)

With regards to your question, according to the Hanafi Madhab the marriage will be valid and correct.

2) Intercourse is necessary for halalah to be valid but ejaculation is not necessary. (Hidayah p.400 v.2)

3) Halalah is still valid even if the husband is wearing condoms as it does not prevent one to experience the sweetness of the intercourse. (The Complete System of Divorce, Mufti Abdul Jaleel Qasmi, p.59)

4) Technically speaking there is no time limit. The second husband can divorce her straight away and the divorce will occur and after she passes her iddah she will be allowed to remarry the first husband.

However, it would be preferable if the second husband stays in the nikah and divorces her in the period after her next menstruation cycle. This is because it is more appropriate to issue a divorce to a woman in such a period where there has been no intercourse.

There are three types of talaq.

1.Ahsan is where a man divorces a woman with a single talaq during her period of purity from menstruation during which he has not had intercourse with her. He then leaves her alone (does not cohabit with her) until she completes her waiting period (Iddah).

2.Hasan is where a woman whose marriage has been consummated is divorced with three talaq in three periods of purity (one in each).

3.Bidah is where he divorces her with three talaqs in a single statement or three talaqs in a single period of purity. If he does this, the divorce takes effect, but he has sinned. (Extracted from Hidayah p.354 v.2)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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