Fatwa ID: 07016
Answered by: Maulana Ubaidur Rahman
Question:
I am scared of getting married because I think it would be Zina.
When I was 14 years old, I used to like a guy in my group. It was a group of 4. 3 males and I was the only female. We both used to like each other and everyone in the group knew. The other two boys used to tease us and one day, in that teasing, they joked about nikah. One of the guys asked the ijab o qabool and I remember both of us laughing. I’m think we said yes. We didn’t know that nikah takes place even if done as a joke. 6 years later when I found out about this hadith I couldn’t remember the exact scenario of what happened. But something in me was 100 percent sure something like this happened. So, I asked the two guys who were with us that time both of them denied saying nothing like this happened and they don’t remember. I asked the guy I used to like and he also said that he was 100 percent sure nothing like this happened. But I kept feeling restless, so, I asked him to text me a message saying “you are divorced”. He texted the message at first but then deleted it. And then for 4 months he didn’t reply to any of my messages. Then, I contacted him again asking him why he deleted the message. He said he didn’t send any such message to begin with and nothing like this happened. I was getting conflicted views. Some Hanafi scholars said you have to intend the divorce when given in writing. When I asked him to send me the text message again, he admitted to sending the previous one and also said that he meant it. But I didn’t know if he was telling the truth or not. So, I asked him to divorce me. At first he refused and kept saying nothing like this happened but when I insisted he said “Okay, fine I give you” I asked him do you mean it? He said yes. He said give you but didn’t use the word divorce.
It’s been 4 months again since I talked to him. My iddah is over (we met in privacy once but nothing happened between us). But I keep getting thoughts what if it doesn’t count? What if I am still under his nikah? What if he did ruju during the iddah? (Because I am getting conflicting views regarding this matter as well. Some scholars of the Hanafi fiqah say that iddah is necessary but ruju is not an option since the marriage was not consummated and the couple only met alone. It was an irrevocable divorce. Some are saying, it was revocable. I don’t know what to do.)
We grew out of our likeness for each other. I don’t see a future with him. I can bring myself to ask him whether he did ruju or not because he didn’t believe that anything like this happened to begin with. He already thinks I’m crazy. Whenever my parents talk to me about any marriage proposal, I get extremely emotional and anxious thinking it would be Zina. I don’t want to spend the rest of my life in doubt. I was 14, I didn’t know at that time. Now, I want to change but I am too scared. Please guide me as to what should I do.
Please note that all of this conversation with the guy took place on WhatsApp and All of us, we follow Hanafi fiqah.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
May Allah reward your quest for an answer. And May Allah alleviate you from distress as well as solving all your matters, for indeed he is the remover of all difficulties, the owner and causer of joy and may he fill your heart with contentment.
There are various factors to take into consideration relating to this scenario.
- Did the Nikaah take place even when it was carried out passively or as a joke/ not seriously
- Was there a clear line of communication to establish the message which was communicated across the chosen platform which was not face to face – i.e. via text message
- What was the intention and what is the significance of intention in this kind of sensitive matter
- Was the marriage consummated and if it was not can ruju (retraction of a divorce) take place after divorce occurs in this kind of setup/marriage
- What is the age of puberty for a woman for her then to conduct her own independent affairs without the need of a guardian because according to shariah she is of a marriageable age
Allah (swt) says regarding the occurrence of talaaq/divorce:
وَإِذَا طَلَّقْتُمُ ٱلنِّسَآءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍۢ ۚ وَلَا تُمْسِكُوهُنَّ ضِرَارًۭا لِّتَعْتَدُوا۟ ۚ وَمَن يَفْعَلْ ذَٰلِكَ فَقَدْ ظَلَمَ نَفْسَهُۥ ۚ وَلَا تَتَّخِذُوٓا۟ ءَايَـٰتِ ٱللَّهِ هُزُوًۭا ۚ وَٱذْكُرُوا۟ نِعْمَتَ ٱللَّهِ عَلَيْكُمْ وَمَآ أَنزَلَ عَلَيْكُم مِّنَ ٱلْكِتَـٰبِ وَٱلْحِكْمَةِ يَعِظُكُم بِهِۦ ۚ وَٱتَّقُوا۟ ٱللَّهَ وَٱعْلَمُوٓا۟ أَنَّ ٱللَّهَ بِكُلِّ شَىْءٍ عَلِيمٌۭ ٢٣١[1]
Translation: When you divorce your women and they have almost reached the end of their waiting period, either retain them honourably or let them go honourably. But do not retain them ‘only to harm them or to take advantage of them. Whoever does that surely wrongs his own soul. Do not take Allah’s revelations lightly. Remember Allah’s favours upon you as well as the book and the wisdom he has sent down for your guidance. Be mindful of Allah and know that Allah has perfect knowledge of things.
ويقع طلاق كل زوج إذا كان عاقلا بالغا ولا يقع طلاق الصبي[2]
Divorce will occur if the person is married and they have sound intellect (i.e. they know what the are saying and the consequences of their statements), when the person is mature (meaning they have reached the age of puberty) and divorce does not occur upon a child.
When a girl reaches the age of puberty, which is generally around the age of 8 and above, the rules of Islamic law apply to her. This is in relation to worship becoming incumbent on her, such as praying, fasting and performance of good actions where the deeds are attributed to her. In the same way, occurrences of penalties or notice of divorce after she has become married apply together also. Hence, the occurrence of divorce by the utterance of a single word would constitute as a divorce, as there is no physical procedure which is needed to be undergone in order for divorce to occur, according to shariah.
Decisions as serious as marriage need to be carefully considered and carried out in a safe manner with consultation from good and trusted people. It is not considered a light affair and definitely has a weight in shariah. It is a great blessing to get married and should not be made a mockery out of by joking regarding it because the rule and principle of being in marriage will still apply.
Because of the marriage occurring a amount of mahr will have to be fixed and given to the wife, even if she is divorced now, as a result of his statement , the mahr (dowry) will still have to be paid and abided by. The only way it can be overlooked if the wife at the time accepts that she is not to receive the money or waivers her right.
أَخْبَرَنَا مَحْمُودُ بْنُ غَيْلاَنَ، قَالَ حَدَّثَنَا زَيْدُ بْنُ الْحُبَابِ، قَالَ حَدَّثَنَا سُفْيَانُ، عَنْ مَنْصُورٍ، عَنْ إِبْرَاهِيمَ، عَنْ عَلْقَمَةَ، عَنِ ابْنِ مَسْعُودٍ، أَنَّهُ سُئِلَ عَنْ رَجُلٍ، تَزَوَّجَ امْرَأَةً وَلَمْ يَفْرِضْ لَهَا صَدَاقًا وَلَمْ يَدْخُلْ بِهَا حَتَّى مَاتَ قَالَ ابْنُ مَسْعُودٍ لَهَا مِثْلُ صَدَاقِ نِسَائِهَا لاَ وَكْسَ وَلاَ شَطَطَ وَعَلَيْهَا الْعِدَّةُ وَلَهَا الْمِيرَاثُ . فَقَامَ مَعْقِلُ بْنُ سِنَانٍ الأَشْجَعِيُّ فَقَالَ قَضَى فِينَا رَسُولُ اللَّهِ صلى الله عليه وسلم فِي بِرْوَعَ بِنْتِ وَاشِقٍ – امْرَأَةٍ مِنَّا – مِثْلَ مَا قَضَيْتَ . فَفَرِحَ ابْنُ مَسْعُودٍ رضى الله عنه[3]
It was narrated from Ibn Mas’ud, that he was asked about a man who married a woman, but did not name a Mahr or consummate the marriage before he died. Ibn Mas’ud said:
“She should have a Mahr like that of women like her, no less and no more; she has to observe the ‘Iddah, and she is entitled to inherit.” Ma’qil bin Sinan Al-Ashja’i stood up and said: “The Messenger of Allah passed a similar judgment among us concerning Birwa’ bint Washiq.” And Ibn Masud rejoiced at that.
(وَمَحَلُّهُ الْمَنْكُوحَةُ)
وَأَهْلُهُ زَوْجٌ عَاقِلٌ بَالِغٌ مُسْتَيْقِظٌ
وَرُكْنُهُ لَفْظٌ مَخْصُوصٌ[4]
The occurrence of divorce is stipulated with specific words which initiates its occurrence and the conditions for divorce to occur according to shariah are that the people involved in it are of sound intellect, reached the age of puberty and reliable.
In summary, the divorce form the original marriage with boy when you were 14 took place by him uttering the words initially, “you are divorced.” You did keep away from him during that iddah period of approximately four months, the words of divorce being issued by the boy did happen and come out of his mouth so the procedure and action of divorce has taken place[5]. You should do tawbah and seek forgiveness from Allah from being in this position, as well as ask Allah to grant you a righteous spouse who will help you Islamically and in every other way which is important to you. Build upon your foundations of religion and pray to be kept away from every difficulty in life. Also keep in the company of those who want what is best for you and are never to put you in harms way.
Only Allah (عز و جل) knows best
Written by Maulana Ubaidur Rahman
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
