Fatwa ID: 02591
Answered by: Moulana Muhammad Imad Ali
Question
After 5 years of marriage, I in a fit of anger divorced my wife 3 times we follow Hanafi fiqh. We decided to get a pre-planned halala because it was a mistake and shouldn't have happened.
We know that a preplanned halala is a big sin, however, we had a son and didn't want to destroy our family because we still love each other very much.
1. The preplanned halalaa marriage took place without her vali (she is 28 years old) is the nikkah still valid in Islam?
2. Can we get married now its been 12months since halala marriage now? And if yes will the marriage be valid just like our first nikkah?
3. My ex-wife feels if we get married again that the marriage will not be blessed and that the sin will follow us forever.
4. We are very embarrassed about this and want to seek forgiveness
Answer
The jurists have categorised anger into three stages:
- The initial stage of anger where one’s mind is sound and fully in control of what one is saying. In such a case talaq will occur without any doubt.
- Extreme anger to the point of insanity, where one is unaware of where he is or what he is saying. In such a case talaq will not occur.
- Finally, that stage which is between the above two stages in that one was extremely angry but not to the point of insanity and was aware of what one was saying. In this case, also, talaq will also occur.
(Raddul Muhtar p.452 v. 4)
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 (PBUH) 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)
Regarding your question, if it’s been 12 months since she received a divorce then it will be permitted for you to marry her. However, if it’s been 12 months since the nikah has happened but there’s no divorce then the man has to divorce her, after that she needs to sit her iddah (waiting period), and only then you are free to marry her.
Only Allah knows best.
Written by Moulana Muhammad Imad Ali
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
