I am a revert and about 3 years ago, my husband gave me a Talaq. We
have always been living separately during our marriage . Four weeks
after he had given me a divorce, I found out that I was 5 weeks
pregnant. I went the following day to the hospital because I started
bleeding. They found out that it was an Ectopic pregnancy ( pregnancy
in the tube) and a few hours later, they removed the pregnancy. I was
told that the iddah period of a pregnant woman terminates once she
delivers the baby and that it was apparently the case for me too as I
had lost the baby. But browsing on your website, I understood that I
should still have had a 3 month iddah period because it wasnt a foetus
with human features. My point here is 2 months and one week after my
husband had divorced me, I remarried another brother. Our marriage got
organised by the brother'sisters who are followers of the Naqshbandi
tariqa. At that time, neither me and the brother were aware of the
deviant beliefs of this group. We certainly would have not conducted
our nikkah there but at an Alhus sunnah wal jamaah masjid. The other
issue is that I didn't have a wali at this wedding.Is this marriage
valid
Praise be to Allah.
If a woman with whom her husband has consummated the marriage is
divorced by talaaq, then she is obliged to observe the 'iddah (waiting
period). If she is a woman who menstruates, then she must observe
'iddah for three complete menstrual cycles after the divorce (talaaq),
meaning that one period comes and goes, then another comes and goes,
then another comes and goes (and she purifies herself after each
period). That is three complete menstrual cycles, whether the timing
between them is long or not. This has been discussed previously in
fatwa no. 12667.
This applies if she is not pregnant. However if she is pregnant, then
her 'iddah lasts until the pregnancy ends, as explained in the fatwa
referred to above. It should be noted that the pregnancy for which
delivery (of the foetus) signals the end of the 'iddah is that in
which human features can clearly be seen in the foetus - according to
the more correct view. The minimum period at which human features
appear clearly in the foetus is eighty days from the beginning of the
pregnancy, but the usual period is ninety days. If the woman
miscarries and no human features can be seen in the embryo, the 'iddah
does not end at that point - according to the more correct opinion;
rather in that case she must still observe 'iddah for three menstrual
cycles, as explained previously in fatwa no. 107051.
The Maalikis have a different view; they are of the view that if a
woman miscarries and passes congealed blood, then her 'iddah ends at
that point, even if no features could be seen in it. It says
inMukhtasarKhaleel(1/130): The 'iddah of a pregnant woman in the case
of divorce (talaaq) or the death of her husband is when her pregnancy
ends completely, even if that is by passing congealed blood. End
quote. The Maaliki scholars interpreted "congealed blood" which
signals the end of 'iddah in their view as that which does not
dissolve if hot water is poured on it. It says inSharhMukhtasar
Khaleelby al-Kharashi (4/143):
What is meant by congealed blood is that which does not dissolve if
hot water is poured on it. End quote.
Inash-Sharh al-Kabeerby Shaykh ad-Dardeer (2/474) it says: The sign of
it having been a pregnancy is that if hot water is poured on it, it
does not dissolve. End quote.
You state that there were no human features in what was passed. As
that was the case, your 'iddah did not end when you passed it -
according to the more correct opinion; rather what you should have
done was to observe 'iddah for three menstrual cycles.
But so long as the second marriage has indeed taken place on the basis
that you thought that your 'iddah had ended, and this idea is in
accordance with a school of thought (madhhab) that is recognised by
the scholars, which is the madhhab of the Maaliki fuqaha' who say that
the 'iddah ends when congealed blood is passed, then it is permissible
for you to forego the view of the majority and follow the Maalikis in
their view that the 'iddah ended when this blood was passed. Hence the
verdict is that the second marriage is valid.
This - i.e., following a less correct opinion after the fact - is the
view favoured by a number of scholars, especially if adhering to the
more correct view would cause hardship or difficulty. In that case
ash-Shaatibi - may Allah have mercy on him - said
inal-Muwaafaqaat(5/190): If a person has done something that is not
allowed, but the rulings concerning the situation may lead to more
than is appropriate - in terms of consequences , not in terms of the
rulings themselves - or rectifying it may lead to greater hardship
than the reason why it was prohibited in the first place, then he may
be left as he is, without efforts being made to undo what has been
done. In other words, we may overlook whatever bad things have
occurred, in a manner befitting justice, on the basis that what has
been done was in harmony with some (scholarly) view, even if that view
is less correct, because it is the correct view in this case which
requires us not to undo what has happened, because leaving it is more
appropriate thing than undoing it; that is because trying to undo it
may cause more harm than the harm the Lawgiver sought to protect him
from when it told him not to do it. End quote.
The point is that it may be the case that the evidence for prohibition
is stronger before it happens, and the evidence for overlooking it is
stronger after it has happened, because of contingent circumstances
that weigh more heavily on the side of overlooking it, as was pointed
out in the hadeeth about rebuilding the Ka'bah on the foundations laid
by Ibraaheem (peace be upon him) [the Prophet (blessings and peace of
Allah be upon him) thought of rebuilding the Ka'bah on the foundations
of Ibraaheem, but because Quraysh were so new in Islam and would be
shocked by the change, he decided to refrain]; and the hadeeth in
which the Prophet (blessings and peace of Allah be upon him) stated
why he did not execute the hypocrites [despite it being permissible
for him to do so because of their treachery; he did not want people to
say that Muhammad killed his companions]; and the hadeeth about the
man who urinated in the mosque - the Prophet (blessings and peace of
Allah be upon him) ordered that he be left alone until he was done,
because if he had interrupted him whilst he was urinating, that could
have led to his clothes becoming contaminated and could have caused
him some physical harm. So the issue of allowing him to carry on with
a forbidden action was more appropriate than interrupting him, which
would have caused him harm and would have led to contamination of two
places (the ground and his clothes), whereas if he was left alone,
only one place would be contaminated.
In the hadeeth it says: "Any woman who gets married without the
permission of her guardian, her marriage is invalid, invalid,
invalid." Then he said: "But if he has consummated the marriage with
her, then she is entitled to the mahr because he has been intimate
with her." This is correcting the situation (marriage of a woman
without her guardian's permission) in one way, hence the couple
inherit from one another if one of them dies, and any child who is
born as a result is to be attributed to the man. By applying these
rulings to an invalid marriage as if it were a valid marriage, and by
ruling that in-laws become mahrams and so on, the scholars indicated
that the marriage is basically valid, otherwise it would come under
the rulings on zina, but it does not come under the rulings on zina at
all, according to scholarly consensus.
Therefore with regard to a marriage concerning which there is a
difference of scholarly opinion, all views may be taken into
consideration, so that no separation should take place after the
marriage has been consummated, based on the new situation after
consummation which makes the view that it is valid stronger.
Based on that, what appears to be the case - and Allah knows best - is
that the second marriage is to be regarded as valid, based on the
opinion of the Maalikis who say that the 'iddah ends when the
pregnancy is miscarried, even if human features are not visible in it.
But there remains another issue, which is what you said about the
marriage having been organised by followers of the Naqshbandi tareeqah
(Sufi order). You did not explain to us the nature of these
arrangements. If what you mean is that the marriage contract - only -
was done in their mosque, and nothing else, then this does not matter,
if a Muslim guardian and two witnesses of good character were present.
But if what you mean is that the marriage contract was done without
the presence of a guardian at all, or that it was done under the
guardianship of a person who follows this misguided and innovated
tareeqah, then in this case the marriage contract was done in an
invalid manner, because the marriage contract done without a guardian
is invalid, as we have explained in fatwa no. 144712
The followers of the Naqshbandi tareeqah are in grave danger and there
are many serious innovations (bid'ahs) in their beliefs and practices.
Hence in order to be on the safe side you should repeat your marriage
contract; if you now have a Muslim guardian among your family and
relatives, then he may do the marriage contract for you; if you do not
have a Muslim guardian, then your marriage contract may be done by the
Muslim qaadi (judge), if there is one, or by the director of the
Islamic Centre, the imam of the mosque or a Muslim man of good
character.
For more information on the Naqshbandis and their deviation.
And Allah knows best.
'' Our Lord ! grant us good in this world and good in the hereafter and save us from the torment of the Fire '' [Ameen]
-
{in Arab} :->
Rabbanaa aatinaa fid-dunyaa hasanatan wafil aakhirati hasanatan waqinaa 'athaaban-naar/-
(Surah Al-Baqarah ,verse 201)
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