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

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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

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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

Dought & clear, - If she accuses her husband of zina, does she have the right to separate from him by means of li’aan?

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I would like to know: what is the procedure in the case of a woman who accuses her husband of adultery. Does she take the oath of li-an (curse) upon herself as in surat an-Nur or is this only in the case of a husband who accuses his wife? I searched for the answer here but did not find it anywhere.
Praise be to Allaah.
Li’aan is prescribed for two reasons:
1 – If the husband accuses his wife of zina and cannot produce four witnesses, then he may get the hadd punishment for slander waived by engaging in li’aan.
2 – If he wants to deny that a child is his.
The basic principle concerning that is the passage in which Allaah says (interpretation of the meaning):
“And for those who accuse their wives, but have no witnesses except themselves, let the testimony of one of them be four testimonies (i.e. testifies four times) by Allaah that he is one of those who speak the truth.
7. And the fifth (testimony should be) the invoking of the Curse of Allaah on him if he be of those who tell a lie (against her).
8. But it shall avert the punishment (of stoning to death) from her, if she bears witness four times by Allaah, that he (her husband) is telling a lie.
9. And the fifth (testimony) should be that the Wrath of Allaah be upon her if he (her husband) speaks the truth”
[al-Noor 24:6-9]
Ibn Katheer (may Allaah have mercy on him) said in hisTafseer:
This verse offers a way out to husbands if a husband accuses his wife of zina but it is too difficult for him to establish proof; he may engage in li’aan against her as enjoined by Allaah, may He be glorified and exalted. This means bringing her before the judge and making his accusation against her, and the judge should make him swear four times by Allaah, instead of bringing four witnesses, that he is telling the truth i.e., about what he is accusing her of, namely zina. And the fifth time he should invoke the curse of Allaah upon himself if he is lying. If he says this, she becomes irrevocably divorced by virtue of this li’aan, according to al-Shaafa’i and many of the scholars, and she becomes permanently forbidden to him, and he should give her the mahr (dowry), and the hadd punishment for zina should be carried out on her. The punishment is not averted from her unless she also engages in li’aan and swears by Allaah four times that he is lying, i.e., with regard to what he has accused her of; and the fifth time she should invoke the wrath of Allaah upon herself if he is telling the truth. Hence Allaah says“But it shall avert the punishment (of stoning to death) from her, if she bears witness four times by Allaah, that he (her husband) is telling a lie.
9. And the fifth (testimony) should be that the Wrath of Allaah be upon her if he (her husband) speaks the truth.”End quote.
As for the wife, if she accuses her husband of zina, but she cannot produce four witnesses, then she should be given the hadd punishment for slander, because Allaah says (interpretation of the meaning):
“And those who accuse chaste women, and produce not four witnesses, flog them with eighty stripes, and reject their testimony forever. They indeed are the Faasiqoon (liars, rebellious, disobedient to Allaah)”
[al-Noor 24:4]
These verses apply equally to slander against both women and men.
Al-Qurtubi (may Allaah have mercy on him) said in his Tafseer: Allaah mentioned women in the verse because they are of greater concern and accusing them of immorality is more abhorrent and more hurtful, but slandering men is also included in the meaning of the verse, and the ummah is unanimously agreed on that. End quote.
Al-Maawardi said inAhkaam al-Sultaaniyyah(p. 287): If a woman slanders her husband, she should be given the hadd punishment, but she should not engage in li’aan. End quote.
If a woman knows that her husband has committed zina but she has no proof, namely four witnesses, then she should advise him and remind him, and tell him to fear Allaah. If he persists in his sin she may ask for a divorce from him or separate from him by means of khula’, because there is nothing good for her in staying with him, and because his having intercourse with her may be harmful for her.
And Allaah knows best.

- PUBLISHERNajimudeeN M