Marriage during iddah

http://islamqa.org/hanafi/daruliftaa/8532

I married a woman last year who was divorced 3 times by her husband. After 10 months of our marriage, she has suddenly informed me that the 3 divorces were given just a month before our marriage (nikah). This means that I married her in her waiting period (idda)!

My questions are: Was our marriage valid and what do we do now? Do we have to renew our marriage, and if she wants, can she marry someone else?

ANSWER

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

The post-marriage waiting period (idda) for a woman who is divorced, provided she is not pregnant, is for the duration of three complete menstrual cycles (haydh). It is absolutely and emphatically forbidden (haram) and a major sin to knowingly marry a woman observing her Idda. Even explicitly proposing to her for marriage is unlawful. Allah Most High says:

‘There is no sin on you if you hint a proposal to the women, or conceal it in your hearts. Allah knows that you will make mention of them. But do not make a promise to them secretly, except that you speak in a recognized manner. Nor resolve upon a contract of marriage until the prescribed time is reached.’ (Surah al-Baqarah/235)

Sayyiduna Abdullah ibn Abbas (Allah be pleased with him) states in the explanation of this verse that ‘hint a proposal’ is to say things like, ‘I want to marry’ and ‘I wish that a righteous woman would be made available for me’ and ‘until the prescribed time is reached’ is the termination of the Idda. (See: Sahih al-Bukhari 5/1969)

As such, despite your marriage during the Idda period being contracted mistakenly, both of you should first repent and seek forgiveness from Allah Most High. You also need to separate from one another instantly, as your marriage to her did not count.

As for the waiting period (idda), once you have separated, she will need to complete the Idda of the previous marriage, and thereafter, observe a new Idda due to separation from you. The renowned classical Hanafi Jurist, Imam Ibn Abidin (Allah have mercy on him) states:

‘As for marrying a married woman or one observing her Idda, if consummation takes place, it does not necessitate a [new] Idda if one was aware that she was connected to another [i.e. married to someone else or observing the Idda].’ (Radd al-Muhtar 3/516)

The above text implies that if a man marries a woman in her Idda knowing that she is observing her Idda, then that marriage is considered totally invalid (batil), and thus, sexual relations thereafter will be deemed as fornication (zina), and as such, no further Idda is required upon separation. However, if he marries her in her Idda mistakenly (i.e. not knowing that she is observing her Idda), then upon separation, she is required to observe a new Idda of separation.

Thus, it is further stated:

‘If consummation (sexual relations) takes place with a woman in her Idda mistakenly…, then a new Idda becomes necessary due to a new cause, but both these Idda periods will run simultaneously. As such, whatever menstruation is observed, it will be considered for both Idda periods…’ (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/518-519)

This means that the two Idda periods will run simultaneously. For example, if she has only completed one menstrual cycle from her first Idda, that would leave her to complete a further two menstrual cycles. These two menstrual cycles, however, will also count for the new second Idda, which means that after only one further cycle, her second Idda will also be complete.

Furthermore, when both these Idda periods are completed in the manner explained above, she will be free to marry whosoever she wants. However, if she would like to marry you [again], then she can do so during her second Idda, meaning the completion of the first Idda is sufficient for the permissibility of marriage with you. The reason for this, as explained in Al-Fatawa al-Hindiyya and Radd al-Muhtar, is that the second Idda is being observed upon separation from you, and as such, if you are the one who is going to marry her, it does not have to be completed similar to a man who pronounces one divorce to his wife and then marries her within the Idda. (See: Al-Fatawa al-Hindiyya 1/532 and Radd al-Muhtar 3/507)

In conclusion, your marriage to this woman was not valid, hence you need to separate instantly and seek Allah’s forgiveness for marrying her in her Idda. Upon separation from you, she will need to complete her Idda and also observe a new Idda caused by your invalid marriage and subsequent separation. However, both these Idda periods will run simultaneously. Both must be completed if she is to marry someone else, but if you wish to re-marry her, then you can do so upon the completion of only her first Idda.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK