Performing nikah with ex husband without halalah

CategoriesMarriage [604]

Fatwa ID: 01323

Answered by Mufti Mohammed Tosir Miah

Question:

I am in desperate need of answers. I had my civil marriage with my husband in November 2007. We planned on having nikaah and me living with him the following august. Although we didn't live together, we have spent alot of time together as husband and wife and have had sexual relations. Things went wrong between us, we tried to fix them but they continued, in April I confided in my family and told them of the problems we'd been having. My family and his had a blazing row which ended in him ringing my brother and pronouncing divorce, he said ''I divorce her, I divorce her, I divorce her.'' The mufti at the time advised that I did not have to complete iddat as I hadn't received a mahar and I had't lived with him. Since then we have had contact and wish to get married again, he has contacted a mufti who states we can marry again, without aving to perform halala. But from what I have read, I wouldn't be able to marry him, unless I marry someone else, consumate my marriage, then that doesn't work out and he divorces me. I am in a desperate situation, my family have found a good Man for me to marry, I know that he is good, but I don't feel I can be happy with him. I am supposed to get married immediately after Ramadhan, but I don't think it will be fair on the man, if I marry him with the hope that he will divorce me and I can re-marry my first husband. Also I will not be able to consummate my marriage with him, because I don't feel physically attracted to him in any way.

Answer:

Bismillah

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

Iddah is a right of the Shariah and is something, which is obligatory for all Muslim sisters. There are many rules which are attached with the iddah; some are connected with the husband such as he has to provide his divorced wife with food and living accommodations which during the period and some are connected with the wife such as she is not allowed to leave the house during this period unless there is a valid Islamic need. The rules of iddah have to be followed by both the husband and wife otherwise they will be considered sinful for discarding a command of Allah subḥānahu wa ta'āla (glorified and exalted be He).

If the husband divorces his wife before there was sexual intercourse or before khalwah (seclusion) with his wife, then upon the divorce the wife is not required to observe the iddah. However, if the husband and have have had sexual intercourse or there has been khalwah then upon the divorce, it is obligatory for the wife to observe the iddah. (Fatawa Hindiyyah p.526 v.1)

From the above we can derive that as long as the couple have had sexual intercourse or the very least there has been khalwah after marriage, the wife is obliged to observe the iddah upon divorce even if she had been separated from her husband for many years.

With regards to your second question, if the husband issued three divorces or three ambiguous divorces then it will be necessary for the wife to do halalah, only then she will be lawful for the first husband. (Fatawa Hindiyah p.469 v.1)

Allah subḥānahu wa ta'āla (glorified and exalted be He) in the Holy Qur’an has said:

“Thereafter, if he divorces her, she shall no longer remain lawful for him unless she marries a man other than him.” (Surah Baraqah v.230)

Saaidah Aaisha raḍyAllāhu 'anha (may Allāh be pleased with her) reports that; A man pronounced three divorces to his wife. She (after her iddah) married another man. The Prophet of Allah Sallallahu Alahi Wasalam was asked whether it was lawful for her to return to her first husband. He said, “Not until they have sexual intercourse.” (Sahih Bukhari)

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 raḍyAllāhu 'anhu (may Allāh be pleased with him) narrates that the Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) 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)

The conclusion we can come to is that it will not be permissible for you to re marry your ex husband unless you marry another man and after consummating the marriage he divorces you.

One final advice is that if you feel that you would not be able to fulfil the rights of the new husband then it will be best for the interest of both parties not to go ahead with the marriage.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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