Religion & Belief (Alor Pothay) > Islam
Divorce
Badshah Mamun:
DIVORCE : WHEN DAUGHTER OR SISTER RAPED
Question :
If a man commits zina with his daughter or wife�s sister. Does this nullify the marriage automatically? If not -how can the mother nullify this marriage?
Answer : Praise be to Allah.
Firstly:
The Muslims should be careful with regard to marriage, and should be caution and be careful about letting female relatives of the wife be alone with people who are weak in faith, even if they are small.
Secondly:
It is well known that it is not permissible for a man to marry two sisters at the same time, and it is nor permissible for him to marry his wife�s mother � after doing the marriage contract with her � or her daughter � after consummating the marriage with the mother. So if the husband commits zina with the wife�s sister, mother or daughter, does his wife become haraam for him and must he divorce her? And if he was not married to her, is it permissible for him to marry her? These are issues concerning which the scholars differed, and there are three opinions:
1. The view of the majority is that his wife does not become haraam for him. This is the view of Ibn �Abbaas (may Allah be pleased with him), �Urwah, Sa�eed ibn al-Musayyab and al-Zuhri, and it is the view of the majority of scholars. Some of them narrated that Ibn �Abbaas said that his wife becomes haraam for him, but this is da�eef (weak); the correct view is that which we have mentioned above.
Their evidence is that marriage in sharee�ah applies only to the woman with whom the marriage contract is done, not just to intercourse. Moreover, there is no dowry, �iddah or inheritance in the case of zina. Ibn �Abd al-Barr said: The scholars of different regions who issue fatwas are unanimously agreed that it is not haraam for the zaani to marry the woman with whom he committed zina, so it is more permissible for him to marry her mother or daughter.
2. Ibraaheem al-Nakha�i, al-Sha�bi, Abu Haneefah and his companions, Ahmad and Ishaaq said, and it was also narrated from Maalik, that if he commits zina with a woman, her mother and daughter become haraam for him.
3. The view of the Hanafis � which is also the view of al-Shaafa�i � is that touching with desire for a permissible reason comes under the same ruling as intercourse, because it is intimacy. But if it is done for a haraam reason, it has no effect, like zina. They said: His wife become haraam for him if he merely touches her mother or looks at her private part.
Ibraaheem al-Nakha�i said: They used to say: If a man looks at a woman and at that which is not permissible for him, or touches her with desire, then they both become haraam to him.
Al-Musannaf (3/303).
The most correct view is the view of the majority, that his doing haraam actions with his wife�s mother, daughter or sister does not make his wife haraam for him, whether he is married or after the marriage has ended. Hence it is known that if a husband molests his wife�s daughter and even it is proven that he raped her, this reprehensible act does not mean that his wife becomes haraam for him.
Al-Bukhaari (may Allah have mercy on him) narrated (5/1963) that Ibn �Abbaas (may Allah be pleased with him) said: If a man commits zina with his wife�s sister, his wife does not become haraam for him.
Al-Bayhaqi narrated � in a report classed as saheeh by al-Haafiz Ibn Hajar (7/168) � that Ibn �Abbaas said concerning a man who committed zina with his wife�s mother: He has transgressed two sacred limits, but the wife does not become haraam for him.
Shaykh Ibn �Uthaymeen (may Allah have mercy on him) said:
Question: If a man commits zina with a woman, do his ascendants and descendents become haraam for her, and do her ascendants and descendents become haraam for him?
Answer: They do not become haraam, because that is not included in the verse (interpretation of the meaning): �Forbidden to you (for marriage) are: � your wives� mothers, your stepdaughters under your guardianship, born of your wives to whom you have gone in � but there is no sin on you if you have not gone in them (to marry their daughters), � the wives of your sons �.� (An-Nisa� 4:23).
The zaaniyah (woman who commits zina) is not included in this, so if a person commits zina with a woman, we do not say that this woman is one of his wives, and we do not say that this woman with whom he committed zina is one of �your wives� mothers� and thus it remains permissible (to marry her), because she is included in the verse (interpretation of the meaning): �All others are lawful�� (An-Nisa� 4:24).
Al-Sharh al-Mumti� (5/179).
Thirdly:
Wife can ask for the marriage to be annulled by the sharee�ah judge (qaadi) for two legitimate reasons, the first of which is his evildoing and immorality by committing this revolting crime � if it is proven; the second is his being away from the home. Both of these reasons make it permissible for woman to seek an annulment of the marriage from the sharee�ah judge and to demand erh rights in full. This is called al-talaaq li�l-darar (divorce on the grounds of harm).
Imam Maalik and Imam Ahmad (may Allah have mercy on them) said concerning it: The harm which justifies seeking a separation of the couple includes everything that harms the wife or involves mistreatment of her, physically, mentally or psychologically. That varies from one woman to another, and according to circumstances and customs. Examples of harm for which a wife may ask for divorce include hitting her for no legitimate reason, forcing her to do something haraam or not to do something obligatory, and evil deeds, immorality and misconduct on his part.
And Allah knows best.
Badshah Mamun:
DIVORCE : WHEN HUSBAND IS ADDICTED TO DRUGS
Question :
Is it permissible for a woman to ask for divorce from her husband who is addicted to taking drugs?
Answer: Praise be to Allah.
The basic principle is that it is not permissible for a woman to ask for divorce unless there is a reason for that. The Messenger of Allah (peace and blessings of Allah be upon him) said: �Any woman who asks her husband for a divorce with no reason, the fragrance of Paradise will be forbidden to her.� Narrated by Ahmad (21874), Abu Dawood (2226) and al-Tirmidhi (1187); classed as saheeh by al-Albaani in Irwa� al-Ghaleel (2035).
And the words �with no reason� mean without there being any hardship that compels her to ask for a divorce.
Al-Haafiz Ibn Hajar (may Allah have mercy on him) said in Fath al-Baari:
The reports which warn women against asking for divorce from their husbands are to be understood as applying to cases where there is no reason for that, because of the hadeeth of Thawbaan, then he mentioned the hadeeth quoted above. End quote.
Undoubtedly addiction to drugs is a serious shortcoming, which harms a woman in both religious and worldly terms, because there is no guarantee that her husband will not enter upon her when he is intoxicated and beat her or revile her, or ask her to do something at that time which it is not permissible for her to do.
Such a thing is regarded as an excuse which makes it permissible for a woman to ask for divorce, but what the woman should do is be patient with her husband, and try to set him straight as much as she can. If she is not able to do that, and she finds that staying with him will cause her harm, then there is nothing wrong with asking for divorce in that case.
Shaykh Muhammad ibn �Uthaymeen (may Allah have mercy on him) was asked:
What is the ruling on a woman seeking divorce from her husband who uses drugs? What is the ruling on her staying with him? Please note that there is no one who will provide for her and her children except him.
He replied:
It is permissible for a woman to ask for a divorce from her husband who is addicted to drugs, because her husband�s condition is not acceptable. In this case, if she asks for a divorce from him, then the children should stay with her, if they are younger than seven years, and the father must spend on them. If she can stay with him to set him straight by advising him, then that is better. End quote.
Fataawa al-Mar�ah al-Muslimah (2/745, 746).
Our advice to her is that she should weigh up what is in her best interests, and consult her family and relatives, who know her situation best. Then she should ask Allah �s guidance (by praying Istikhaarah), for Allah will never let her down. As the report says: No one loses by praying Istikhaarah and no one regrets consulting others. Whether she chooses to annul the marriage or to stay, let her accept what Allah has decreed for her and be patient and seek reward. Allah says (interpretation of the meaning):
�And certainly, We shall test you with something of fear, hunger, loss of wealth, lives and fruits, but give glad tidings to As-S�birin (the patient ones, etc.)� (Al-Baqarah 2:155)
And Allah knows best.
Badshah Mamun:
DIVORCE FROM A HUSBAND WHO IS ADDICTED TO SMOKING
Question :
My husband is addicted to smoking and he suffers from asthma. There have been many problems between us concerning his giving up smoking. Five months ago my husband prayed two rak�ahs to Allah and swore that he would never smoke again, but he started smoking again one week after making that vow, and the problems between us started again. I asked him for a divorce but he promised me that he would not start smoking again and that he would give it up forever, but I am not confident that he will be able to keep his word. What is your opinion, what is the expiation for his broken vow and what do you advise me to do?
Answer: Praise be to Allah.
Smoking is one of the evil things that are forbidden, and it causes a great deal of harm. Allah says in His Holy Book, in Soorat al-Maa�idah (interpretation of the meaning):
�They ask you (O Muhammad) what is lawful for them (as food ). Say: �Lawful unto you are At‑Tayyibaat [all kinds of Halaal (lawful‑good) foods which Allah has made lawful (meat of slaughtered eatable animals, milk products, fats, vegetables and fruits)]�.�� (Al-Maa'idah 5:4)
And He says in Soorat al-A�raaf, describing the Prophet Muhammad (peace and blessings of Allah be upon him):
��.. he allows them as lawful At‑Tayyibaat (i.e. all good and lawful as regards things, deeds, beliefs, persons and foods), and prohibits them as unlawful Al‑Khabaa�ith (i.e. all evil and unlawful as regards things, deeds, beliefs, persons and foods)�.� (Al-A�raaf 7:157)
Undoubtedly smoking is an evil and unlawful thing, so your husband must give it up and keep away from it, in obedience to Allah and His Messenger (peace and blessings of Allah be upon him) and so as to avoid that which incurs the wrath of Allah, and to protect his religious commitment and health, and to maintain good relations with you. As expiation for his broken oath he must offer kafaarat yameen, as well as repenting to Allah for starting to smoke again. This expiation means feeding or clothing ten poor persons, or freeing a believing slave; it is sufficient to give them dinner or lunch, or to give each of them half a saa� of the staple food of the country which is equivalent to a kilo and a half.
We advise you not to ask him for a divorce if he prays and he is a man of good conduct, and if he gives up smoking. But if he persists in this sin there is nothing to prevent you from asking him for a divorce.
Shaykh Ibn Baaz, al-Fataawa al-Jaami�ah li�l-Mar�ah al-Muslimah, part 2, p
Badshah Mamun:
IDDAH : STAYING DUE TO SYMPATHY
Question :
Can a man live with his divorced wife in one house in order to look after the children?
Answer : Praise be to Allah.
If a man has given his wife the last of three divorces (talaaq), or he has divorced her once or twice and her �iddah has ended, then she becomes a �stranger� to him (non-mahram) and it is not permissible for him to be alone with her or to touch her or look at her.
Undoubtedly if they stay in the same house, it will be difficult for him to adhere to these shar�i guidelines such as not being alone with her and her having to observe hijab before him as with all other non-mahram men, unless the house is large and it is possible to section off a part of it for him, with separate facilities and a separate entrance for him. But if they are both in one house, with the same entrance and the same facilities, then it will be very difficult to avoid the haraam things mentioned above.
Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) said: The woman who has been thrice divorced is a stranger to the man like all other non-mahram women, so the man cannot be alone with her, just as he cannot be alone with any other non-mahram woman, and he cannot look at her, just as he cannot look at any other non-mahram woman. End quote from al-Fataawa al-Kubra (3/349)
The Standing Committee for Issuing Fatwas was asked: My father got sick and went into hospital. After he came out, he got sick again and had his lower leg amputated. Praise be to Allah for the decree of Allah. Then he became paralyzed and cannot sit up. He is with me in my house � he asked my mother who is married to him, he said: You are divorced. Then he said: Forgive me and I will forgive you. My mother is still in the house and she cleans him because he is unable to go to the toilet, and she feeds him, because we are all at school and at work.
They replied:
If this divorce was a third divorce, then it is not permissible for your mother to stay with him and uncover him and touch him, because she is a stranger (non-mahram) to him. But if the divorce mentioned was a first or second divorce, then your mother is regarded as recoverably divorced, and he may take her back so long as her �iddah has not ended, and she has the same rights as any other wife. She may serve your father and touch him. But if her �iddah has ended and he did not take her back by saying words to that effect or having intercourse with her during the �iddah period, then she is a stranger to him, and it is not permissible for her to stay with him and for him to be alone with her, unless a new marriage contract is done. End quote.
Fataawa al-Lajnah al-Daa�imah (20/226)
And Allah knows best.
Badshah Mamun:
IDDAH: DIVORCED WOMEN DAYS PASSING
Question :
1- A woman who has been divorced three times has sons and daughters. Where should she spent her 'iddah? In her family's house or in the marital home with her sons and daughters? Please note that she wants to spend her 'iddah with her sons and daughters.
2- There was a wife who was divorced three times, and during her 'iddah she became sad, and when she met her husband (during the �iddah), she embraced him and things happened, but no kissing or intercourse took place.
What is the way to expiate for this sin by both parties? Please note that no kissing or intercourse took place.
Answer: Praise be to Allah.
Firstly:
If a man has divorced his wife irrevocably, she is not entitled to any maintenance or accommodation during the �iddah, unless she is pregnant. Irrevocable divorce is of two types:
1. Minor irrevocable divorce, which is when the woman is divorced before consummation of the marriage, and divorce in return for compensation (meaning: in return for money taken by the husband).
2. Major irrevocable divorce, which means completion of three divorces (talaqaat).
Ibn Qudaamah (may Allah have mercy on him) said: If a man divorces his wife in such a way that has no right to take her back, then she is not entitled to accommodation or maintenance, unless she is pregnant.
In general, if a man divorces his wife irrevocably, either by a third divorce (talaaq), or khula�, or an annulment, and she is pregnant, then she is entitled to maintenance and accommodation, according to scholarly consensus, because Allah says (interpretation of the meaning):
�Lodge them (the divorced women) where you dwell, according to your means, and do not harm them so as to straiten them (that they be obliged to leave your house). And if they are pregnant, then spend on them till they lay down their burden �.� (At-Talaaq 65:6)
According to some reports of Faatimah bint Qays, �You are not entitled to any maintenance unless you are pregnant.� and because the pregnancy is his child, so he is obliged to spend on it, and he cannot spend on him (the fetus) except by spending on her, so it is obligatory, just as it is obligatory to pay for the costs of breastfeeding.
But if she is not pregnant, then there is no maintenance for her.
With regard to accommodation, there are two reports, one of which is that she is entitled to that. This is the view of �Umar and his son, and Ibn Mas�ood, 'Aa'ishah, the seven fuqaha� of Madeenah, Maalik and al-Shaafa�i, because of the verse quoted above.
The second report says that she is not entitled to accommodation or maintenance, and this is the prevalent view of the madhhab, and it is the view of �Ali, Ibn �Abbaas, Jaabir, �Ata�, Tawoos, al-Hasan, Ikrimah, Maymoon ibn Mahraan, Ishaaq, Abu Thawr and Dawood.
Most of the Iraqi fuqaha� said that she has the right to accommodation and maintenance. This is the view of Ibn Shubrumah, Ibn Abi Layla, al-Thawri, al-Hasan ibn Saalih, Abu Haneefah and his companions, al-Batti and al-�Anbari. End quote from al-Mughni (8/185).
The evidence that the irrevocably divorced woman is not entitled to maintenance or accommodation is the report narrated by Muslim (1480) from al-Sha�bi who said: I entered upon Faatimah bint Qays and asked her about the judgment that the Messenger of Allah (blessings and peace of Allah be upon him) passed concerning her, and she said that her husband divorced her irrevocably, and she said: I referred my dispute with him concerning accommodation and maintenance to the Messenger of Allah (blessings and peace of Allah be upon him), and he did not give me any accommodation or maintenance, and he told me to observe my 'iddah in the house of Ibn Umm Maktoom.
According to another report also narrated by Muslim, she said: I mentioned that to the Messenger of Allah (blessings and peace of Allah be upon him) and he said: �There is no maintenance or accommodation for you.�
According to a report narrated by Abu Dawood, �There is no maintenance for you unless you are pregnant.�
Ibn �Abd al-Barr (may Allah have mercy on him) said: But with regard to evidence and what is binding thereof, the view of Ahmad bin Hanbal and those who followed him is more sound and more correct, because if it were obligatory for her to stay in her husband�s house and was something ordained by Allah, then Messenger of Allah (blessings and peace of Allah be upon him) would have obliged her to do that and would not have made her leave her husband's house to go to the house of Umm Shareek, or to the house of Ibn Umm Maktoom. As it is proven that the Prophet (blessings and peace of Allah be upon him) said to Faatimah bint Qays, who had been irrevocably divorced: �There is no accommodation or maintenance for you; rather accommodation and maintenance are for the one who may be taken back,� then what can contradict that? Can it be contradicted except by a similar report from the Prophet (blessings and peace of Allah be upon him), who was the one who explained what Allah meant in His Book? And nothing of that nature has been reported from him (blessings and peace of Allah be upon him). It is well known that he knew better than anyone else about the interpretation of the words of Allah (interpretation of the meaning): �Lodge them (the divorced women) where you dwell ��. End quote from al-Tamheed (19/151).
If the husband allows her to stay in his house during the �iddah, then there is nothing wrong with her staying there, on condition that she observe hijab before him, because by virtue of the irrevocable divorce he has become a stranger to her. But it is better for her to observe the �iddah in her family's house, so as to close the door to fitnah, as mentioned in the question, because the shaytaan may make her appear attractive to him, and make him appear attractive to her, until they do a haraam action, when before that the shaytaan strove hard to make them unattractive to one another until the threefold divorce took place: ��Then take admonition, O you with eyes (to see)� (Al-Hashr 59:2).
Secondly:
For an irrevocably divorced woman to embrace her former husband is a haraam action, as was what happened after that of touching him and so on. What they must do is repent to Allah and regret this evil action. It is no secret that with the third divorce, they became strangers (non-mahrams) to one another, so it is not permissible to look or touch, let alone the embracing and what you mentioned. It is not permissible for him to go back to her until she has married another husband, in a genuine marriage, and not a marriage of convenience aimed at making her permissible for the first husband, then he (the second husband) dies or leaves her.
And Allah knows best.
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