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Question
My original Question was about Nikah of a divorcee girl. The situation
is that the boy sat in his room along with two witnesses and the girl
sat in her house. Then, though skype they did ijaab and qubool andthe
two witnesses heard the girl's voice as video chat was not used. 1.
Fatwa no. 2378938 2.
http://www.islamweb.net/emainpage/index.php?page=showfatwa&Id=2387246&Option=QuestionIdFrom
previous two answers it is clear to me that this Nikah is not valid as
bride and groom were not at same place. Condition of guardian is not
applicable as it was the second marriage of the Girl. From the answers
it looks like that girl do not need a divorce as it is an invalid
nikah .But girl has to spend a 3 months iddah as marriage was
consummated. As iddah of a woman in an invalid nikah is the same as a
divorcee woman.My Questions are: 1. Does Boy has to give the girl
divorce or not to be free from this invalid Marriage as per two
contrasting saying: Ibn Qudaamah (may Allaah have mercy on him) said:
If a woman gets married in an invalid manner, it isnot permissible for
someone else to marry her until she is divorced or the marriage is
annulled. End quote fromal-Mughni (7/9). If the marriage was corrupt
(fasid), the judge (qadhi) will separate the couple. If he separates
them before consummation of marriage, no waiting period will be
necessary, even (if the separation was) after the couple remained in
seclusion (khalwa). However, if he separates them after consummation
of marriage, the woman will have to observe the waiting period (idda)
from the time of separation. The ruling is the same in the case of
separation taking place without the Qadhi�s judgment (i.e. the couple
separate themselves).� (al-Fatawa al-Hindiyya, 1/526 2. If Boy does
not get ready to give divorce,can girl take Khula? How to nullify this
nikah as there is no written documentation of nikah. They lived for
just one month.Noone is aware ofit. Jazak Allah
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify
that there is none worthy of worship except Allaah, and that Muhammad,
sallallaahu 'alayhi wa sallam, is His Slave and Messenger.
A marriage that lacks the condition of Wali is Faasid (incorrect)
according to the opinion of the majority of scholars. It is the
opinion that we adopt here in Islamweb and it is substantiated by
Sharee'ah evidence.
Being a divorced woman has no effect in this regard because there is
no difference in stipulating the Wali in the case of a virgin and a
previously-married woman. The previously-married woman differs from
the virgin only in that when she is asked about her marriage, she can
express her opinion verbally that she accepts that suitor or not. As
to the virgin, her silence is sufficient to indicate her acceptance.
The Prophet, sallallaahu 'alayhi wa sallam, said: " The
previously-married woman expresses herself,while the virgin's
acceptance is by keeping silent. " [Ahmad]
In another narration, he, sallallaahu 'alayhi wa sallam, said: " The
previously-married woman expresses herself with her tongue. "
As for the issue you have stated, there is also a disagreement of
scholars about it. However, the opinion we adopt here inIslamweb is
what Ibn Qudaamah stated in Al-Mughni that separation in a Faasid
marriage necessitates divorce or annulling the marriage. Accordingly,
it is not necessary that the young man divorces that woman; as there
is nothing wrong with her trying to convince him to give her Khul'
(divorce at the request of the wife who pays a compensation). If he
refuses to divorce or accept Khul', then she may refer the case to the
Islamic judge or whoeveris acting on his behalf such as the Islamic
centers in the western countries to annul the marriage. This marriage,
even if it is not officially documented, is established by the
testimony of the witnesses. For more benefit, please refer to Fataawa
143529 and 196797 .
What you have stated regarding Ibn Qudaamah 's quote in Al-Mughni and
Nizaam 's quote in Al-Fataawa Al-Hindiyyah imply no contradiction;
rather, they agree with each other. To prove this,it was stated in
Al-Fataawa Al-Hindiyyah:" If the marriage is Faasid, the judge is to
separate between the man and the woman… " Thus, the author only wanted
to explain the effect of that separation on the 'Iddah (waiting
period) and that meaning is clear in his words. - - ▓███▓
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