Fatwa ID: 02088

Answered by Mufti Mohammed Tosir Miah

Question:

My age is 30 and I got married 2 years before. I’ve a daughter who is 1 year old. 3 months before I had an issue with my in-laws. My wife was ready to come along with me on the day of quarrel; however, at the same time her uncle spoke to her something and said she’s not ready to come with me, so I left her over there. After one week when I had been to my in-laws house to bring back my wife and kid the house was locked. Immediately I called to her uncle but her uncle denied telling me where are they?
I spoke to her uncle once again and told me that my wife is angry with me and she’s not ready to live with me, hence, she has submitted the petition with local Jamat seeking Qula (Divorce).
I tried reaching my wife but her mobile is switched off from that day and her family is not allowing me to meet her. I tried reconciling with her uncle but they are not ready to talk anything except in front of Jamat. Jamat hasn’t called us yet and I’m not sure when are they going to have this discussion.
Now it more than 3 months, I desperately need of my wife (by emotionally and physically as well), in this case can I go for second marriage instead of waiting for her. As per Islamic law there is no approval required from first wife for second marriage. If I can get second marriage, what and all the procedure I need follow (like getting fatwa or other documents for second marriage).

Answer:

Your question will be looked at by discussing two issues. The first issue deals with who has the rights of divorce.  In Islam it is the right of the husband to divorce his wife. However, if the wife initiate a divorce and takes her case to the local court then the ruling of divorce will depend on whether the husband agrees or signs the divorce petition.

Below is a list of the different permutations on effecting a divorce through the civil courts.

1. If it is the case, where the man files a petition for divorce in the county court and demands separation, then in this, as the man has the right to divorce, he can use it or make someone else his representative.  So, it is as if he has made the judge his representative to divorce his wife.  It is not necessary that the representative be a Muslim, as is the case in the court of this country.  The divorce will take place issued by the judge and the woman can marry someone else after completing the waiting period (Iddah).  She does not need to take an Islamic divorce from her husband.
2. If it is the case where the woman files a petition for divorce and when the court case begin proceedings, the man gives permission to the judge to proceed in clear terms, then in this case also the divorce will take place.
3. The third issue is, if the man goes to his solicitors after having received the divorce petition to give a reply.  Generally, the solicitor advises clients of no benefit in defending the case except delay with financial implications, with the court issuing the divorce in any case.  Because of this, the solicitor writes that both husband and wife will separate or the husband signs and sends the divorce petition to the county court, willingly.  Therefore, in this case also the divorce will take place because of the willingness of the husband. 
4. The fourth issue is, if the woman files for a divorce and the judge sends the divorce petition to the husband, but the husband defends his case and is not willing to divorce her, but despite this the judge issues a divorce.
5. The fifth issue is, the husband acknowledges and accepts his mistake and is willing to fulfil her rights, but the judge issues a divorce.
6. The sixth issue is, the man receives the divorce petition but does not proceed with the case nor does he do anything to show his willingness to divorce her, but the judge issues a divorce.
7. The seventh issue is, if the woman files for divorce and the judge sends the divorce petition to the husband, but he refuses to defend his case and is not willing to divorce her, despite this the judge issues a divorce.

In the above four cases, according to Islamic law the husband and wife are still considered marred. The woman cannot marry another man. If she does, the marriage will be void and both will be considered living in sin. (Extracted from Asr Hadhir Ke Pechida Masaail p.25 – p.31 v.2)

The second issue is whether you require the consent of your first wife to get married to a second wife.

During the early period of Islam this custom continued without being limited.  As a result men initially took too many wives to satisfy their greed.  Later, they could not do justice to all of them and their wives lived like prisoners.  It was the Holy Quran that stopped this great injustice prevailing in the human society at large.  The Holy Quran restricted the plurality of wives by declaring that keeping more than four in marriage is unlawful.  Furthermore, to treat any of them unfairly will also be unlawful.  (Maariful Quran p.301 & p.302 v.2)

Allah in the Holy Quran has said:

‘Then marry the women you like, in two’s, in three’s and in four’s.  But if you fear that you will not maintain equality, then (keep to) one women, or a bond woman you own.  It will be closer to your not doing injustice.’   (Surah Nisaa v.3)

Saaiduna Abu Hurairah narrates that the Prophet of Allah said “A man who has two wives and he does not deal justly with them will be resurrected on the Day of Judgement with half his body paralysed.”   (Sunan Tirmizi)

With regards to your question, it is not necessary for the husband to seek permission from the first wife for his second marriage to be considered valid and correct.  However, it is preferable to consult her regarding the issue to avoid upsetting her. (Raddul Muhtar p.138 v.4)

Also there is no need for you to get any documents or fatwas to show your first wife that you are going ahead with a second marriage. 

If you are able to do justice between both the wives then there is no prohibition from the Shariah.  However, it will be advisable in these times to have one wife.  One will surely call upon himself worry and distress.  The rights of a number of wives are so delicate that not all can comprehend them.  Besides this, the rulings of the jurists in this regard are very difficult to abide by.  For instance, they say that if a man goes to one wife after Maghrib and to the other after Isha in their respective days then this is unjust.  (The Islamic Marriage – Mawlana Ashraf Ali Thanwi p.213)

Moreover, if you think you will be able to do justice between your wives then the following rulings must be adhered to:

1. It is wajib to be just and equitable to each wife in giving maintenance, allowance and in being friendly with them but not in sleeping together.
2. If he treats them equally in sleeping together, kissing etc. then it is mustahabb though not wajib.
3. As for the gifts which are not necessary, it is wajib to dispense justice in the view of Imam Abu Hanifah . 
4. When the man proceeds for a journey, he may take any of his wives along.  But it is better if he draws a lottery to choose one.
5. It is essential to give a separate home to each wife.  One is not allowed to compel both to stay in the same house.  However, if both are willing then it is allowed to keep them together for as long as they are willing.
6. It is not proper that while he begins one wife’s turn after Maghrib, he begins another’s after Isha. 
7. Similarly, it is not proper to stay at both places for some time during one night.
8. Equality is not wajib for visits during the day.  Rather, short visits are enough.
9. Or, if he goes to one wife for some purpose then too it is proper.
10. It is not proper to have sexual intercourse with a wife during the day if it not her turn that night.
11. It is the husband’s prerogative to determine the length of the time but it should not be prolonged to such an extent that the other has to endure the wait, for instance a year each.  
12. If a husband stays at one home during his illness then on recovery he must stay as many days at the others home. 
13. Also, if a wife is seriously ill then there is no harm in staying at her home to attend to her. However, these days too should be redeemed.
14. One wife may give her turn to another.  She can take it back when she likes.  

METHOD OF LIVING WITH TWO WIVES

Pattern for the husband

1. He should not disclose secret of one wife to another.
2. He should lodge them separately each having her meal at her own place. 
3. He should not complain to one wife about another.
4. He should not praise one before another.
5. In short, neither should be mentioned before another nor listen to one speak about the other.
6. He should politely decline to tell a wife about another if she asks him about something.
7. He should not let any of them doubt that he gives more to one than to the other.  Rather, he should declare it clearly.
8. He should not try to please any of themb y claiming to love her more than the other.
9. He should not look for an opportunity to say that the other wife praised her.

Pattern for the first wife

1. She should not be jealous of the new wife.
2. She should not taunt her.
3. She should bring herself to treat her with kind manners so that even if she has not love, she does not harbour hatred either.
4. She should not display such informality with her husband in the presence of the second wife as he might not like it lest the new wife also becomes rude with him.
5. She should not mention defects of the new wife to her husband, for no one likes his beloved to be criticized, particularly by her competitor, a co-wife. 
6. She should treat the new wife in such a way that she (the new wife) does not ever argue with her.
7. She should obey and serve her husband more than ever before so that she does not lose esteem in his eyes.
8. If her husband falls short of giving her rights to her and she can do without them then she should not speak of them.  But if she finds it difficult to do without them then she should tell him politely when he is in a happy mood.
9. She should deal with the relatives of the new wife cheerfully so that she respects her.
10. She should surrender her turn to the new wife once in a while so that her husband might esteem her.

Pattern for the new wife

1. She should deal with the first wife in a way one deals with one elder.
2. She should not take much pride in her husband or think that she is his dearest.  The first wife has an established relationship with him and the emotions for the new wife cannot displace them.
3. If her husband gives her a separate home, she must pay occasional visits to the first wife and invite her sometimes.
4. She should impress upon her husband not to neglect the first.
5. If the first wife is strict or taunts her, she should excuse her and not complain to her husband.
6. She should serve the relatives of the first wife.
7. She should keep excellent relations with the children of the first wife to the extent that the first wife has a soft corner for her.
8. She should seek the advice of the first wife in important matters for she has good experience and this will bring them closer to one another.

(Extracted from The Islamic Marriage – Mawlana Ashraf Ali Thanwi p.214- p.218)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham