Fatwa ID: 01741
Answered by Mufti Mohammed Tosir Miah
Question:
I married a Lady in Pakistan, and after three months her former husband to whom she had done a court marriage called me from Dubai that how come I married his wife when the lady is still in his Nikah. The court marriage took place before 7 years, and for the last 4 years he had no contact with her neither he provided her maintenance. I was never informed that she is still under the nikah of her former husband. I am now in Qatar. I tried to talk to my wife but she refused to talk to me. Her relatives confirmed that they know that man and my wife had a relation with him but never knew that she had done court marriage. My question: Is my Nikha with my wife is nullified and that man is still her legal husband. Do I need to offer Kaffarah as I am totally unaware of her former court mariage. He had threatened me to drag me to Sharia court about marrying with his wife. Now the lady is living alone and not with her former husband in Karachi. I am totally confused. The problem is my wife does not want to talk to me and asking me to give her a divorce. Should I give her a divorce?
Answer:
Insha Allah I will look at your question under the following points.
Firstly, whether your wife is still married to her first husband will be based on whether there was a valid nikah between the two. You mentioned there was a court marriage, but where the conditions of a valid Islamic Nikah found?
The conditions for a nikah to be valid according to Shariah are that there should be offer and acceptance (from the couple or a proxy) in one session, which should take place in the presence of two adult male witnesses or one adult male and two adult female witnesses. (Hidayah, Vol 2, P305-306)
If the conditions of a Nikah not found then she is still regarded your wife.
Secondly, if it is ascertained that she was still married to another man when she got married to you then your marriage with her would be considered invalid. There are now two situations which will apply:
- If you have had sexual intercourse. In this situation iddah and mahr will be obligatory.
- If you did not then no mahr and iddah will be obligatory. (Fatawa Hindiyyah P.280 & P.330 V.1)
Thirdly, if she does not want to talk about this past relationship and on top of that she is asking for divorce, then it may be best in particular if you do not trust her to give her a talaq.
Saaiduna Ibn Abbas 
narrates that a man came to the Prophet of Allah 
and said that his wife “does not move anyone’s hand from her” (indicating to that whenever someone wants to commit adultery with her she commits it). The Prophet of Allah replied, “Divorce her.” Then the man said, “I love her”, upon which the Prophet of Allah Sallallahu Alahi Wasalam said, “Then keep her”. (Mishkatul Masabeeh p.287 v.2)
The scholars of hadith have said that it is preferable to divorce an adulterous woman. However, if the husband loves her and she has repented from her actions and is willing to change then it is permissible to keep her. (Mazahirul Haq p.179 v.4)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham
