This page is also available in Urdu language.
یہ صفحہ اردو میں بھی موجود ہے۔ زبان کی تبدیلی کے لیے نیچے بٹن دبائیں۔
Question:
I am writing for a friend of mine. I have recently married a woman. At the time of the nikah, two imams were present as witnesses and they performed the nikah.
However, the woman I married, her first husband is seriously ill and has been suffering from paralysis for the last ten years. There has been no marital relationship between them for the last ten years. That woman remained patient for a long time. Due to the husband’s severe illness, the husband is not willing to give divorce.
However, once the husband himself told her that she could divorce him and marry another man. Now that woman wants to take khula/divorce because there has been no relationship between them for ten years.
Can she inform her first husband about khula? Since the husband is seriously ill, considering his mental and physical condition, legal proceedings also do not seem appropriate.
My question is, is our current marriage valid? Or will we have to perform the nikah again in some other way? If the nikah has to be performed again, what is the correct method?
That woman wants to obtain separation from her first husband so that she can formally take divorce from him and remarry.
Furthermore, when her first marriage took place at a young age, she liked a fair-skinned man while her husband was not like that, so she was not willing for the marriage but her parents forced her and got her married. Later, she spent about a decade with him as husband and wife, then that husband fell ill.
So, was the first marriage also valid?
Answer:
بِاسْمِ اللہِ سُبْحَانَہٗ وَتَعَالٰی، الَّذِیْ عَلَّمَ الْإِنْسَانَ مَعَالِمَ الدِّیْنِ، وَأَنْعَمَ عَلَیْہِ بِحَقَائِقِ الشَّرِیْعَةِ وَالتَّمْکِیْنِ
If a woman’s first husband is alive, has not given divorce, a khula contract has not taken place by mutual consent, and a valid Shariah-based faskh-e-nikah (annulment) is also not proven, then merely living apart for a long time or the marital relationship ending does not automatically terminate the nikah. On this basis, this question arises whether such a woman’s second marriage will be valid according to Shariah or not, and if the first husband ever said, “You marry elsewhere,” what is the Shariah ruling on this statement. In light of the fatwas of the Ahl-e-Sunnat Hanafi Darul Ifta, a step-by-step explanation of this issue is presented below.
The Basic Principle of the Continuation or Termination of Nikah
According to Hanafi jurisprudence, nikah is an established contract, which does not terminate merely because there have been no relations between husband and wife for years, or they are living apart, or the husband is unable to fulfill marital rights due to illness. For the termination of nikah, the existence of divorce, or khula by mutual consent, or a valid Shariah-based reason for faskh-e-nikah is necessary according to Shariah.
Can Khula Occur Without the Husband’s Consent?
In Hanafi jurisprudence, khula is a mutual matter, and the basic principle is that the consent of both husband and wife is necessary for it. If a woman unilaterally takes khula on her own, or obtains a court decision that does not include the husband’s consent, it does not automatically become a Shariah-compliant khula. Eminent Muftis have clearly written that a unilateral judicial khula will neither be considered khula in the view of the pure Shariah nor necessarily considered faskh-e-nikah, unless its Shariah conditions are fulfilled.
Difference Between Khula and Faskh-e-Nikah
A major mistake common people make is that they consider khula and faskh-e-nikah to be the same thing, whereas according to the pure Shariah, there is a difference between the two. Khula generally occurs by mutual consent of the husband and wife, while faskh-e-nikah can occur through a specific Shariah forum or a judge (Qazi) with specific Shariah reasons and valid evidence. Therefore, if the husband is seriously ill, unable to fulfill rights, and is also not giving divorce, then this matter will not be considered unilateral khula but potentially viewed within the scope of faskh-e-nikah, and it will have separate conditions.
If the Husband Said “You Marry Wherever You Want,” Does Divorce Occur?
This point is the actual basis of this issue. If the first husband actually said these words, “You marry wherever you want” or “You marry elsewhere,” then according to Hanafi jurisprudence, these are words of kinayah talaq (allusive divorce), provided the husband said them with the intention of divorce. But if he did not have the intention of divorce, then with kinayah (words indicating divorce) words, without intention, divorce does not occur absolutely. Scholars have clearly written that if the husband said this sentence with the intention of divorce, then one revocable divorce (talaq-e-bain) occurs, and if the intention was not for divorce, then the nikah remains. Similarly, in another fatwa, “She can marry wherever she wants” has also been declared as kinayah words, making it conditional upon intention.
See the original fatwa: Husband saying to wife: Marry wherever you want
From this, it is known that merely saying “he once gave permission” is not enough; rather, the actual decision will depend on what words he said, on what occasion he said them, and what his intention was. If the intention of divorce is proven, the nikah can be terminated, and if the intention is not proven, the nikah will be considered to remain.
If the First Nikah is Established, What Will Be the Status of the Second Nikah?
If a woman is in the nikah of her first husband, and until now neither divorce is proven, nor khula, nor faskh-e-nikah, then in such a case, nikah with another man is not valid according to Shariah. Therefore, it is not sufficient that two witnesses were present at the time of the second nikah or that some imam performed the nikah, because one basic condition for the validity of nikah is also that the woman is not in the nikah of another. If the first nikah is established, the second nikah does not take place.
Was the First Marriage Invalid Due to Coercion?
The question also mentions that the woman was not heartily willing for this marriage in her youth because she did not like the husband and her parents got her married under pressure. This point requires Shariah detail. Merely that the woman was not happy at heart, or did not like the husband’s appearance or complexion, does not automatically invalidate the nikah. The Shariah consideration is essentially whether offer and acceptance (Ijab-o-Qubool) took place at the time of nikah, and whether permission or acceptance from the woman’s side existed in some valid form or not. If she accepted at the time of nikah, even if it was in an environment of family pressure, the nikah will be considered valid. Therefore, it is not correct to declare the first marriage invalid solely on the basis of dislike.
Shariah Ruling for the Concerned Woman
Looking at this entire incident collectively, the Shariah ruling is that the first nikah has not terminated merely due to the absence of marital relations for ten years. If the woman considered herself free by understanding it as khula without the husband’s consent, this is not sufficient. If those words of the first husband in which he gave permission for a second marriage were indeed said with the intention of divorce, then one revocable divorce (talaq-e-bain) has occurred; and if the intention was not for divorce, then the nikah will remain. The consideration of the intention of divorce or its absence will be based on the husband’s sworn statement, meaning if he swears and says that he did not have the intention of divorce, then the nikah will remain. In such a case, until Shariah release from the first nikah is conclusively proven, the second nikah cannot be declared valid.
What is the Correct Shariah Path Now?
The correct path for this woman is to clarify the Shariah status of the first nikah. First of all, it should be seen whether any explicit divorce, written divorce, or kinayah talaq with intention is proven from the first husband or not. If this is not proven, then recourse should be made to khula by mutual consent or faskh-e-nikah under a valid Shariah cause. If actual release from the first nikah is obtained, then after completing the iddah (waiting period), a new, correct Shariah nikah should be performed. Relying on the current doubtful nikah will not be correct until Shariah evidence of the termination of the first marriage is clear.
Summary
The summary of this issue is that nikah does not terminate merely due to the husband’s severe illness, paralysis, or the absence of marital relations for a long time. Unilateral khula without the husband’s consent is not valid according to the original Hanafi position. Words like “You marry elsewhere” can be kinayah talaq, but their ruling depends on intention. If the first nikah was established, the second nikah will not be valid. And if offer and acceptance took place in the first marriage, it will not be declared invalid merely due to dislike or pressure. Therefore, in such a matter, the primary need is to determine the Shariah basis for the termination of the first nikah, only then can a correct decision be made regarding the new nikah.
وَاللہُ بِالصَّوَابِ أَعْلَمُ، وَعِلْمُہُ أَصْوَبُ وَأَتَمُّ
