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Friday, March 21, 2014

Fathwa, - Some issues about divorce and 'Eelaa'












Question
I have two questions related to Divorce: 1. The Hanafi school's opinion is that if a divorce is executed via an indirect or implied statement then the nikkah terminates immediately even if this is the first or second divorce. Is this opinion correct? Are scholar's of other school approve this opinion? Why Hanafi's do not allow to unite without a new nikkah if this was the first or second divorce )in case when an implied or indirect statement was used to issue divorce(? 2. If a husband takes an oath to not have sexual relations with his wife and the period of 4 months elapses then does this cause automatic divorce between them? I believe this is the stance of the Hanafi school. Can you please clarify if other scholars hold this view as well. I was under the impression that the husband is asked to divorce his wife after four months )no automatic divorce( and if he refuses then a judge can annull the marriage. Secondly, if the husband does have sexual relations before the four month time limit expire )like within the first 1-2 months( then is the nikkah intact and valid? and what kaffarah husband has to offer, if any? Lastly, if wife forces the husband to make such a promise to not have sexual relation with her )due to personal marriage related problems( but husband stays quite )does not make a promise( and later in the same conversation he says that "Yes I will be careful and will watch out to not have sexual activity" )he did not intend to make an oath or promise( then will such situation/statement falls under the ruling of oath of sexual abstinance? Jazzak 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, is His Slave and Messenger.
The Hanafi scholars divide the metaphors of divorce into two categories:
1- Metaphors with which divorce occurs once in a revocable manner. Words of this category are like, "Observe your ‘Iddah", "Make sure that you are not pregnant" or the like which implies divorce.
2- Words with which divorce occurs irrevocably one time, such as "It is irrevocable", "It is absolute", "She is forbidden to me", or the like which implies strong intention of irrevocable divorce.
We drew this conclusion from “Al-Bahr Ar-Raa’iq”byIbn Nujaymand this shows that the Hanafi scholars detailed the issue of divorce by indirect words. In fact, we did not find any school of jurisprudence having the same details of the Hanafi scholars.
As for renewing the marriage contract, it depends on the type of divorce which occurred by indirect words. If the divorce is revocable, it does not need a new contract unless the woman's ‘Iddah expired. If the divorce is irrevocable or revocable but the woman's ‘Iddah expired, it needs a new contract. This is the answer to the first question.
With regard to the second question, the scholars differed about Eelaa’ )a husband swearing not to have sexual intercourse with his wife and refusing to approach her( when its period elapses. The majority of scholars held the opinion that when the period of Eelaa’ elapses, the husband has to choose to return to sexual activity with his wife or to divorce her. The Hanafi scholars said that the woman is automatically divorced after this period elapses. The preponderant opinion is the opinion of the majority of scholars. Allaah The Almighty Says )what means(: }For those who swear not to have sexual relations with their wives is a waiting time of four months, but if they return ]to normal relations[ - then indeed, Allaah Is Forgiving and Merciful.{]Quran 2:226[ The verse apparently signifies that the period of return is after four months. The verses continue )what means(: }And if they decide on divorce - then indeed, Allaah Is Hearing and Merciful.{]Quran 2:227[ Had divorce occurred automatically after the elapse of this period, there would have been no need for deciding on divorce, asIbn Qudaamahsaid in “Al-Mughni”.
However, if the man, who swore not to have sexual intercourse with his wife, had intercourse with her, he would be no longer doing Eelaa’, but he is required to make expiation, according to the majority of scholars, because he broke his oath. Allaah The Almighty Says )what means(: }He Will Impose blame upon you for ]breaking[ what you intended of oaths. So its expiation is the feeding of ten needy people.{]Quran 5:89[ So, marriage remains valid and Eelaa’ alone does not affect the marriage bond. For further information, see Fataawa 89737and 88228.
On the other hand, the Muslim jurists differed about if the husband stopped having intercourse with his wife without swearing. The majority of scholars held that he the ruling of Eelaa’ does not apply to him unless he swears not to have intercourse even if he intends to harm his wife. ImaamMaalikconsidered it Eelaa’ if the husband intended to harm his wife by avoiding intercourse with her, otherwise there will be no Eelaa’, according to him, if the husband does not intend harm. Thus, the majority of scholars based their ruling on the apparent meaning of Eelaa’, whereas ImaamMaalikconsidered the purpose behind it, asIbn Rushdstated in “Bidaayat Al-Mujtahid”. The opinion of the majority of scholars is the preponderant one.Ibn ‘Abbaassaid: "There is no Eelaa’ until it is accompanied by an oath."‘Ataa’said, "Eelaa’ occurs only by swearing not to have intercourse ]with the wife[." It was narrated on the authority ofAbu Hurrahthat he askedAl-Hasanabout a man who deserted his wife for seven months, he said, "This a long desertion." I asked him if this would be considered Eelaa’, he asked, "Did he swear ]to avoid intercourse with her[?" I said, "No." He replied, "There is no Eelaa’ until he swears."Allaah Knows best.





















- PUBLISHERNajimudeeN M

Fathwa, - Swore not to have intercourse with his wife whom he was forced to marry










Question
what is the status of this marriage now according to islam? 1-marriage was not based on the free will of a boy but he did take her in the nikah 2-boy and girl do not have any sexual relationship after the six months of marriage 3- boy swor By Allah infront of family members ,that he will not have any relation with the girl my question is after Swearing , is the girl divorced? if not then what is the current status of the marriage?
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 Muhammadis His slave and Messenger.
If this marriage contract took place fulfilling the conditions of a correct marriage contract, then the marriage is valid. The most important of these conditions is the presence of the guardian and two witnesses; for more benefit in this regard, please refer to Fatwa 83629.
The bond of marriage does not become void unless the husband initiates a divorce. If the husband refrains from having sexual intercourse with his wife or swears not to have sexual intercourse with her, then all this does not affect the bond of marriage between them; for more benefit, please refer to Fataawa 89825and 82732.
However, it is not permissible for a husband to refrain from having sexual intercourse with his wife without a sound reason for a period that harms her; he should either keep her in kindness or divorce her in kindness.
As regards a husband swearing not to have sexual intercourse at all with his wife, then this is Eelaa’ because he used a wording that necessitates eternity; so such a husband has a choice to do one of the two following matters:
1- To have sexual intercourse with his wife and expiate for his oath, in which case his Eelaa’ becomes void.
2- To insist on not having sexual intercourse with his wife, in which case his wife is allowed to take the matter to a Muslim judge or his deputy, and the latter gives him a respite of 4 months and then if the husband refuses to take his wife back, the judge would oblige him to divorce her. If the husband refuses, the judge divorces his wife from him; in this case the husband is not obliged to expiate.
It should be noted that in case the husband refrains from having sexual intercourse with his wife without swearing to do so, whether or not this is an Eelaa’, then the majority of the scholarsare of the view that there is no Eelaa’ except by making an oath, and this is the preponderant opinion.
Finally, it should also be noted that a father is not permitted to force his son to marry a girl whom he does not like.Allaah Knows best.























- PUBLISHERNajimudeeN M

Fathwa, - Wife seeks separation from husband










Question
I thank Allah who has created Fatwa center for us Muslims. I have a big problem in my life. I have my own opinion about this matter but I consider you to be knowledgeable enough to give proper advice.
I converted a few years ago and am very glad I am a Muslim. Islam has changed me to a much better and wiser person. This is the most incredible thing that has happened in my life.
I love Allah more than anything else, there are very few words for expressing what I feel towards Allah.
In 1992 I married a young Palestinian doctor. I accepted him as my husband because he was very religious. We lived a happy family life till 1998. In Palestine my husband committed a terrible sin.
The man I had given my heart to and who I loved changed and took the Haram path. The man who was supposed to provide a peaceful family life has ignored even providing food, clothes, medication to his wife and his girls. More over he didn't even give us respect! My children were a witness to all this.
My girls and I were treated very rudely and it didn't end there. We had to even witness his act of "adultery!"
I tried my best to control the conflict in a peaceful way. He and the Palestinian authorities lied to us continuously. In august 1999 after a long discussion my husband, through his lies- which I believed-convinced me that I needed to go back to my country to get a peace of mind there.
According to his behavior I got the impression that he was very sorry, if he really did or not Allah knows best. I forgave him, thought we made up and left for my country. My daughters )7, 6, and 4 years of age( were left behind without their will or my consent on the matter.
I tried to return to Palestine but the Israeli border police stamped on my passport "entry denied".
I don't know what has happened to my girls, and my husband has not written to me for a year now and his behaviour gives me the impression that he is not interested in my life any more. I regret his changed this way and am sorry for him.
I have decided to ask for a separation )khul( I want to know if I have the right to take custody of my three children and if I can ask for separation after 1 year and 7 months of absence of my husband!
Answer
Praise be to Allah, the Lord of the Worlds; and blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions.
The conjugal life is built on cordiality, friendliness, blessing, living together happily and mutual confidence. So, each one of the spouses should do his/her duties towards his/her partner. If these conditions can not be met, and if the conjugal life becomes unbearable and impossible to mend, Islam allows a last cure for either spouse who feels humiliated to be rid of this relation through divorce. So, if this relation can not be continued and if it does not fulfill its initial objectives, it should be ended in the way prescribed by the Sharia.
A wife who feels a weakness or an unability to fulfill her husband’s rights and if she fears that she might commit some sin or cause some harm to her husband – who has bad behaviour, who does not abide by his religious duties or who does not fulfill his wife’s duties – Sharia, in this case, gives her the right to redeem herself from him with something that pleases him and frees her. Allah Says )interpretation of meaning(: }Then if you fear that they would not be able to keep the limits ordained by Allâh, then there is no sin on either of them if she gives back )the Mahr or a part of it( for her Al-Khul' )divorce(. ]2:229[
So, we think that the situation you described is a sound reason for you to ask for Khula. For more details about Khul’a refer to Fatwa 89039.
Some scholars even believe that if the husband is causing much harm to his wife and if this harm can not be removed except by divorce, in this case, the husband should divorce her and he does not deserve to be given anything against this divorce. Allah Says )interpretation of meaning(: }O you who believe! You are forbidden to inherit women against their will, and you should not treat them with harshness, that you may take away part of the Mahr you have given them, unless they commit open illegal sexual intercourse.{]4:19[. Allah knows best.























- PUBLISHERNajimudeeN M