Halala after divorce

http://www.askimam.org/public/question_detail/19174

I would like to ask a question pertaining to talaq. My husband gave me three talaqs two years ago and we have not resided together since that time.

He would now like to reconcile but the only option is for me to make nikah with another man and be intimate. What I would like to know is that if I do agree to do this, I would knowingly be entering into a nikah with another person just for the purpose of him giving me a talaq after we have been intimate for that night. Is this acceptable according to Islam? Because a part of me feels that Allah knows everything and that He will know that my intention for making the nikah is only to reconcile with my first husband. Is it acceptable according to the Shariah for me to reconcile with my first husband?

Answer

In the Name of Allāh, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

When a man gives three talaqs to his wife, she becomes totally forbidden for him. Thereafter, she can only become permissible for him after the following things take place:

1)     She goes through the iddat (waiting period) of the talaaq that she just received.

2)     She then marries another man with a valid nikah.

3)     She consummates the marriage with her new husband.

4)     Thereafter, the second husband divorces her or he dies.

5)     She then goes through the iddat of talaaq or of her husband’s death.

This process is called ‘halaala’. After halaala, she may get married to her first husband.

When the woman gets married to her second husband, they should get married with the intention of a normal, permanent marriage. Thereafter, if the husband coincidentally divorces her or he dies, she may marry her first husband.

However, if the marriage takes place in such a way that the man and/or woman intends to get divorced after consummating the marriage so that the woman may marry her first husband, then there are a few scenarios in this. They are mentioned below:

1) If at the time of marriage, the condition of halaala is mentioned (for example, the man says to the woman that I marry you with the condition of halaala or he says that I marry you with the condition that I will divorce you after consummating the marriage so that you become halaal for the first husband or the woman says to the man that I marry you with the condition that you will divorce me after consummation of the marriage so that I become halaal for my former husband), then the ruling is that such an act is impermissible. In the hadith, it is mentioned that Allah Ta’ala curses the man who marries a woman so that she can become halaal for her former husband, the husband who arranges such a marriage so that his former wife can become halaal for him and the woman who does such a marriage. Although doing this type of marriage (i.e. wherein the condition of halaala is mentioned) is impermissible, if someone does it, the marriage will be valid and she will become halaal for her first husband when her second husband divorces her.  The condition of divorce or halaala mentioned in the nikah is not valid, and she will not be divorced until the second husband chooses to actually issue a divorce. In other words, although the people doing and arranging such a marriage will be sinful and cursed by Allah, the marriage itself will be valid and the woman will become halaal for the first husband once the second husband divorces her.

2) If, on the other hand, a man sees that the woman and her former husband really want to get back together, therefore with the intention of helping them out, he marries her then divorces her after consummating the marriage, then this will be permissible with the condition that no one knows of his intention.

3) Similarly, if the woman gets married to a man with the intention that after the marriage and its consummation, she will ask for divorce and thereafter get married to her first husband, it will be permissible with the condition that no one knows of her intention.

4) If both the man and the woman marrying each other know of each others intention (i.e. that they are getting married for halaala), but at the time of marriage, the condition of halaala is not mentioned, then in this case some ulama (scholars) say that it is not permissible (although, just like in the first scenario, if someone does it, the marriage itself will be valid and the woman will become halaal for her first husband). Other ulama say that such a marriage is permissible. It is therefore better to avoid this.

To conclude, you should see which scenario applies in your case and act accordingly. If you really want to go back to your first husband, you may act upon the third scenario mentioned above provided that the condition mentioned therein is fulfilled i.e. that no one knows of your intention. In such a case, you will not be sinful, as the scholars have explicitly mentioned.

(Ahsanul Fataawa: 5/154, Saeed)

(Fataawa Usmani: 2/278, Maktaba Ma’ariful Quran)

(Qaamoosul Fiqh: 2/426, Zamzam Publishers)

(Raddul Muhtaar: 5/51, Darul Ma’rifa)

And Allāh knows best.

Ml. Faizal Riza
Melbourne, Australia

Concurred by:

Muftī Abrar Mirza
Chicago, IL (USA)

Under the Supervision of Muftī Ebrahim Desai (South Africa)

Divorce, Waiting Period (idda) & Marrying another Man (halala) 

Question #: 5707 

Date Posted: 29-03-2004 

<QUESTION>

My husband gave me three divorces. He himself did not know so well that saying 'divorce' (verbally) takes such serious effect. He thought of it as a way to put pressure on me. He said it thrice as is seen in movie. Is this enough to decide about our marital status? 

I told him about possible nullification of our marriage. At this point, I reiterated that I cannot live with him as Haram woman. He had the impression that i am still his wife.

Then again I told him that we have to redo the process if I know that we have to. He was taken aback and was speechless. We are sleeping apart. 

Can you please also tell me about Iddah. I am not pregnant. Do I still have to observe it, and also do I have to get married to another man?

<ANSWER>

In the name of Allah, Most Compassionate, Most Merciful,

Your question will be answered in three parts. The first deals with divorce, the second with the waiting period (Iddah) and the third looks at the issue of marrying another man (Halala).

1) As far as the divorce is concerned, you mention that your husband pronounced the word “divorce” three times and therefore three divorces have come into effect. Whether your husband had the intention of divorcing you or otherwise and whether he took it seriously or otherwise and whether he said it to only put pressure on you, three divorces have been affected.

When three divorces are given then, this is known as an irrevocable divorce (Talaq al-Mugallazah) and you can not return to him unless after marrying another man (as it will be mentioned in detail in the third part).

Allah Most High says:

“Divorce is twice, thereafter either retaining her honourably or releasing her kindly....... If he divorces her third time, she is unlawful for him unless she marries another husband (and he also divorces her).” (Surah al-Baqarah, V: 229/230)

Therefore, in your case, three divorces have come into effect and you can not live as husband and wife.

2) As far as the waiting period (Iddah) is concerned, it is obligatory upon the woman to fully observe it. The time limit for this period differs from one woman to another. If the woman is pregnant then, she will have to wait until she gives birth. If she is not pregnant, then the period for a woman whose husband passes away is, four months ten days and for a divorcee, the period is three complete menstrual cycles.

There are many wisdoms and reasons for the Iddah being obligatory. For instance, to ensure that the sperm of two men do not gather and get mixed up in the womb of one woman. Also, another reason is to express grief over a sad incident, etc.

Therefore, in your case, you must observe the waiting period, which is three complete menstrual cycles, even if you are not pregnant. If the divorce was given whilst you were in your menstruation, then this period of menstruation will not be counted. Your calculation will commence from the next menstrual period.

The waiting period should be observed in the house you were living in at the time of divorce. Therefore, you may observe the Iddah in your former husband’s house. However, you must ensure that you observe Hijab from him.

3) When a woman is divorced three times, this divorce is non-revocable, which means that the husband can not take her back unless after she marries another man.

Many people with regards to this are mistaken. The general misconception is that marrying another man (Halala) is a solution provided by Shariah in order for the husband and wife to get back together.

This is, however, not the case. The meaning of Halala is that, if the woman after being divorced and after observing her waiting period wished to marry another man, she can do so. This second husband by total coincidence and on his own accord also divorced her after having sexual intercourse with her, then after observing the full waiting period, she can remarry her first husband.

It should be remembered that, this is not a solution provided by Shariah. Once three divorces are pronounced, the marriage is over and there is no getting together again. But if by coincidence, she married another man and he to by coincidence (after having sexual intercourse with her) divorced her, then she, after the Iddah is over, can remarry her first husband.

If Nikah was performed on the condition of Halala or by fixing a fee to be paid to the second man, then this is a grave sin and unlawful. The Prophet (Allah bless him and give him peace) said:

“Allah’s curse is on the one who makes a contract or agreement for Halala (Both the one who carries out Halala and the one who it is done for.” (Sunan al Darami / Mishkat al Masabih)

However, if there is only an intention of Halala in the heart and no verbal agreement was made, then according to the majority of Fuqaha, this is permissible and valid (Radd al-Muhtar)

I hope I have been able to answer all your queries.

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK