Intention in the heart for separation in Halalah
In the name of Allah, the most Beneficent, the most Merciful.
Answer
When a woman is divorced three times, this divorce is irrevocable and means that the husband cannot take her back unless she marries then divorces 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 it, 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 is valid and correct therefore it is not right to categorize Halalah with zina and adultery.
- The Prophet of Allah Sallallahu Alahi Wasalam has said that whomsoever commits illegal sexual intercourse or consumes alcohol Allah shall extract from him the Iman (faith) just as how a person removes his clothes from his head. (Kanzul Ummal)
- The Prophet of Allah Sallallahu Alahi Wasalam has said, “Abstain from Zina for indeed it has four traits, it eradicates beauty from the face, it restricts sustenance, it angers Allah and entry into hell. (Kanzul Ummal)
- The Prophet of Allah Sallallahu Alahi Wasalam has said that Allah’s anger becomes intense upon the fornicators. (Kanzul Ummal)
There are two conditions for an Islamic marriage to be valid. Firstly, the man or his representative or the woman or her representative or her custodian (i.e. her father, brother, uncle etc.) say the statement of offer and acceptance. These statements should be said in the past tense, or one of them expressing the past and the other the future, such as one saying, "Marry (your daughter) to me" and the other saying, "I have married (her) to you". Secondly, the physical presence of two free, adult, sane, Muslim male witnesses, or one man and two women, whether they be morally upright (adil) or non-upright. (Mukhtasar Quduuri p.140)
Therefore, if a person in front of a prostitute says the statement of offer and she agrees in the physical presence of two free, adult, sane, Muslim male witnesses, or one man and two women, the marriage will be done even though one may have had an intention to divorce her later in his heart. However, such a marriage is not considered appropriate according to the Shariah, since it goes against the spirit and objectives of marriage, which is to establish a long-term relationship as a family, and raise righteous Muslim children.
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham
