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Sunday, November 12, 2017

Invalid Marriages, - * Reconciling between the hadeeths which forbid tahleel and the hadeeth about the wife of Rifaa‘ah

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Prophet peace be upon him said.
Abu Dawud narrated that the Prophet (peace and blessings be upon him) said: “Allah has cursed the muhallil and the muhallallahu".
The muhallilis the one who marries a woman and divorces her so that she can return to her first husband, and the muhallallahuis the first husband.
IbnMajah narrated from `Uqbah ibn `Aamir that the Prophet (peace and blessings be upon him) said: “Shall I not tell you of a borrowed billy-goat?” They said, Yes, O Messenger of Allah. He said, “He is al-muhallil. May Allah curse al-muhalliland al-muhallal lahu.”
Which means that Doing Halala is harram in Islam but on the other hand when i found this hadith,
Dawud :: Book 12 : Hadith 2302 Narrated Aisha, Ummul Muminin:
The Apostle of Allah (peace_be_upon_him) was asked about a man who divorced his wife three times, and she married another who entered upon her, but divorced her before having intercourse with her, whether she was lawful for the former husband. She said: The Prophet (peace_be_upon_him) replied: She is not lawful for the first (husband) until she tastes the honey of the other husband and he tastes her honey.
Doesnt it mean these are contradictory that at one side prophet is cursing and other side he is allowing to do marriage for the purpose of Divorce so she can consume marriage with the previous husband.
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Praise be to Allaah.
There is no contradiction between these hadeeths. If a man marries a woman who has been divorced three times with the intention of making her permissible for the first husband (tahleel marriage), this marriage is haraam and is that which the Messenger of Allah (blessings and peace of Allah be upon him) cursed the one who does it.
As for the hadeeth about the wife of Rifaa‘ah, it does not say that ‘Abd al-Rahmaan ibn al-Zubayr married her with the intention of tahleel. Rather the reports of the hadeeth indicate that he married her and wanted to keep her, and he did not divorce her just because she asked for a divorce. Rather she wanted to go back to her first husband, but the Prophet (blessings and peace of Allah be upon him) explained to her that that would not be permissible for her until the second husband consummated the marriage with her; she had said that he had not consummated the marriage with her.
There follow some of the versions of the hadeeth about the wife of Rifaa‘ah.
It was narrated by al-Bukhaari (2639) and Muslim (1433) from ‘Aa’ishah (may Allah be pleased with her) that: The wife of Rifaa‘ah al-Qurazi came to the Prophet (blessings and peace of Allah be upon him) and said: I was married to Rifaa‘ah, then he divorced me and made the divorce irrevocable. Then I married ‘Abd al-Rahmaan ibn al-Zubayr. He said: “Do you want to go back to Rifaa‘ah? No, not until you taste his (‘Abd al-Rahmaan’s) sweetness and he tastes your sweetness.”
Muslim (1433) narrated that ‘Aa’ishah (may Allah be pleased with her) said: A man divorced his wife three times, then another man married her and divorced her before consummating the marriage with her. Her first husband wanted to remarry her, and the Prophet (blessings and peace of Allah be upon him) was asked about that. He said: “No, not until the second husband tastes of her sweetness what the first one tasted.”
So it does not say in the hadeeth that ‘Abd al-Rahmaan married her with the intention of tahleel (making her permissible for her first husband). Rather she is the one who wanted to go back to her first husband, and the fact that this intention was present on her part does not make the marriage a tahleel marriage, because the power of divorce was not in her hand.
Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) said:
Because the Prophet (blessings and peace of Allah be upon him) permitted her to go back to her first husband if the second husband had intercourse with her, after it became clear to him that she wanted to go back to the first husband, and it made no difference whether this desire arose after the marriage contract was done or was present before that, this indicates that it was permissible for her to go back to (the first husband) in either case. Usually if a woman is comfortable with her husband then he divorces her, she may still feel something for him in many cases; women usually dislike divorce and would like to go back to the first husband more than they would like to live with someone else… End quote.
Al-Fataawa al-Kubra, 6/301
Ibn ‘Abd al-Barr (may Allah have mercy on him) said:
In the words of the Prophet (blessings and peace of Allah be upon him) to the wife of Rifaa‘ah, “Do you want to go back to Rifaa‘ah?” There is an indication that the woman's desire to go back to her (first) husband does not affect the one who has done the marriage contract with her, and that does not come under the same heading as tahleel, in the case of which the one who does it deserves to be cursed. End quote.
Al-Tamheed, 13/227
Ibn al-Qayyim (may Allah have mercy on him) said:
The intention of the wife or her guardian does not have any effect; rather what counts is the intention of the second husband. If he intends to make it permissible for her to go back to her first husband (tahleel), then he is muhallil and deserves to be cursed, as does the husband who divorced her, if she goes back to him by means of this invalid marriage. But if neither the second husband nor the first husband was aware of what was in the mind of the woman or her guardian of the intention of tahleel, that does not affect the marriage contract at all. The Prophet (blessings and peace of Allah be upon him) was aware that the wife of Rifaa‘ah wanted to go back to him and he did not make that the reason to prevent her going back to him; rather what prevented her going back to him was the fact that the second husband had not had intercourse with her, so he said, “not until you taste his sweetness and he tastes your sweetness.”
And Allah knows best.

Saturday, November 11, 2017

Comedy

வாழை மரம் 'தார்' போடும் : ஆனால் அதை வச்சு நம்மால 'ரோடு' போட முடியாதே!

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வாழை மரம் 'தார்' போடும்
:
ஆனால் அதை வச்சு நம்மால 'ரோடு' போட முடியாதே!

Invalid Marriages, - * She separated from her first husband by means of khul‘ without his consent and married another man, then she went back to her first husband

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- I was married to my husband islamically and civilly for 27 years and he had a substance abuse problem. We have two grown sons and one grand-daughter. One day I met a knowledgeable Muslim man on the internet as I was inquiring advice about my situation.. This person had written books and I came to trust him. I explained to him my plight and various spiritual experiences that I had. Thats when he told me about "heart softeners" a term I had not heard before. To make a long story short, he took to me emotionally and I him. He wanted me to leave (divorce) my husband and marry him. I went to my husband and honestly explained what had happened in detail and asked him for a divorce. He refused. The learned brother told me because my husband has a substance abuse problem and he (the learned brother) is a practicing muslim, he had more right for me to be his wife. To make a long story short again, at the behest of the new brother, I wrote my husband a letter releasing myself from him (khula) on the grounds of his intoxications. I did iddat and married the new brother. It did not work out with this new brother and we both agreed for divorce after two months. My ex-husband (so I thought) became aware of this and ardently pleaded for me to take him back. Explaining that he was in a long term live in program from the veterans administration and doing well. I told him I would consider. I eventually told him yes. He convinced me that we didn't have to go through an islamic ceremony because my divorce from him was not valid because I didn't give him anything for my freedom. He said he forgave me for my indescretion and hoped that Allah would forgive me also. At the time it sounded reasonable and we resumed married life without a ceremony. Now I find myself at unrest wondering am I in fact really married. Please advise me so that I can have no doubts and if there is anything that I need to do.
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Praise be to Allaah.
The khul‘ that you did yourself is invalid and has no effect, because the woman does not have the right to annul the marriage contract, either by means of khul‘ or talaaq (divorce), just as she does not have the right to do the marriage contract. Rather the woman may ask to separate from her husband by means of khul‘ if there is good reason to do so, and if he accepts then he is the one who separates from her by means of khul‘ or talaaq. If he does not agree then she should refer the case to the shar‘i judge (qaadi) who will either force him to give a khul‘ or talaaq, or not.
If the woman marries someone other than her first husband before having separated from him in a valid manner, either through talaaq or annulment of the marriage, or the husband’s death, then that (second) marriage contract is invalid, according to scholarly consensus. If she was aware that it was invalid then she is a zaaniyah (adulteress) who is subject to the hadd punishment, and so is he (the second husband). If she was not aware of that because she thought that she had the right to end the first marriage herself by means of khul‘, and that that could be valid, then she is excused because of her ignorance and the hadd punishment is not to be carried out on her, but her second marriage is also invalid and she has to leave him and observe ‘iddah, then go back to the first husband.
Ibn Qudaamah (may Allah have mercy on him) said:
With regard to invalid marriages, such as the marriage of a married woman or one who is observing ‘iddah and the like, if they were aware of what is halaal and what is haraam, then they are both guilty of zina and are thus subject to the hadd punishment, and any child born as a result is not to be attributed to the man. … and ‘iddah becomes obligatory once she has been alone with him; if he dies, she must ‘iddah and mourning. All of that is required as a precautionary measure for her sake.
End quote fromal-Mughni, 7/13
It says inal-Mawsoo‘ah al-Fiqhiyyah, 8/123-124
The fuqaha’ are unanimously agreed that it is obligatory to observe ‘iddah and any child born should be attributed to the man in the case of a marriage concerning which the madhhabs differ, once the marriage has been consummated, such as a marriage without witnesses or without a guardian, or marriage of a pilgrim in ihram during Hajj, or shighaar (quid-pro-quo marriage). The Hanbalis added that the same applies once it is proven that they have been alone together.
They are also agreed that ‘iddah is required and the child is to be attributed to the man in the case of a marriage concerning which there is consensus that it is invalid once the marriage has been consummated, such as the marriage of any woman during her ‘iddah, the wife of another man and mahrams, if there is some doubt which would cause the hadd punishment to be waived, such as if the parties involved did not know that it is haraam, and because the basic principle according to the fuqaha’ is that in any case of marriage where the hadd punishment is to be waived, the child is to be attributed to the man.
But if there is no doubt that would cause the hadd punishment to be waived, such as if the parties involved were aware that it is haraam, then the child is not to be attributed to the man according to the majority and also according to some of the Hanafi shaykhs, because when the hadd punishment becomes obligatory, attribution of the child to the man is not proven. And according to Abu Haneefah and some of the Hanafi shaykhs, attribution is proven because there is some doubt about the invalidity of the marriage contract.
See alsoal-Mawsoo‘ah al-Fiqhiyyah, 29/339
See also the answer to question no. 171791
To sum up:
In all cases the woman does not have the right to separate from her husband by means of khul‘ by herself, as happened in your case.
Based on that, your second marriage to this liar and cheater is invalid and does not count. You have to observe ‘iddah following your separation from him, as in the case of a woman who is divorced by talaaq.
Some of the scholars are of the view that in this case to prove that you are not pregnant from him, one menstrual cycle is sufficient.
Seeash-Sharh al-Mumti‘, 13/381-383
And Allah knows best.