Message No : 25Sr.No : 517/725
Question By : Muhamamd

Dear Mufti Sahib

Assalam o Alaikum

I need a detailed guidance from you based on authentic shar¡¯ee arguments for Halalah. Please read below.

1. Marriage for the purpose of making her permissible for her first husband then divorcing her (tahleel marriage) are haraam and invalid according to the vast majority of scholars, and it does not make the woman permissible for her first husband. See: al-Mughni (10/49-55).
2. There are saheeh ahaadeeth from the Prophet (peace and blessings of Allaah be upon him) which show that tahleel marriage is haraam.
a. Abu Dawood (2076) narrated that the Prophet (peace and blessings of Allaah be upon him) said: ¡°Allaah has cursed the muhallil and the muhallal lahu.¡± This was classed as saheeh by al-Albaani in Sunan Abi Dawood. The muhallil is the one who marries a woman and divorces her so that she can go back to her first husband, and the muhallal lahu is the first husband.
b. Ibn Majaah (1936) narrated from ¡®Uqbah ibn ¡®Aamir (may Allaah be pleased with him) that the Prophet (peace and blessings of Allaah be upon him) said: ¡°Shall I not tell you of a borrowed billy-goat.¡± They said, Yes, O Messenger of Allaah. He said, ¡°He is al-muhallil. May Allaah curse al-muhallil and al-muhallal lahu.¡± Classed as hasan by al-Albaani in Saheeh Sunan Ibn Maajah.
c. ¡®Abd al-Razzaaq (6/2650 narrated that ¡®Umar ibn al-Khattaab (may Allaah be pleased with him) said whilst addressing the people: ¡°By Allaah, no muhallil or muhallal lahu will be brought to me but I will stone them.¡±
d. Al-Haakim narrated from Naafi¡¯ that a man said to Ibn ¡®Umar: I married a woman and made her permissible for her first husband, and he did not tell me to do that and he did not know. He said: No, marriage should be based on genuine intentions; if you like her then keep her, and if you do not like her then leave her. He said: At the time of the Messenger of Allaah (peace and blessings of Allaah be upon him) we would regard that as zina. And he said: They will still be adulterers, even if they remain for twenty years.
3. Imam Ahmad was asked about a man who married a woman intending thereby in his heart to make her permissible for her first husband, but the woman did not know about that. He said: He is a muhallil, and if he intends thereby to make her permissible for her first husband, then he is cursed.
The above all hadees are general and applies whether he states his intention clearly when doing the marriage contract and they stipulate that when he has made her permissible for her first husband he will divorce her, or they do not stipulate that and he intends it to himself only. If you have any taaweel to negate them or to specify the with any exception (istasna) please describe and base your taweel on some shar¡¯ee evidence rather than your own opinion only to legitimize the saying of Imam-Azam Abu-Hanifa Al-Nouman bin Sabit (may Allah please with him).
For instance, taweel of hadees in Sahih Bukhari (O son of Yasir you will killed by a group of rebels who will calling the people towards hell) done by Ameer Muwiya (ra) and Amr bin Aas (ra) while killing Amar bin Yasir (ra) in Jang-e-Siffin was based on absolutely misguided perception. (see comments of Hafiz ibne hajr in Fatul bari and ibne kathir in Albidaya wa Nihaya).
So every tahweel is not valid, there are principles stipulated on the books and I expected you to detail them if you have any taweel of above hadeess for halalah.

So my second question is, fatawa of ahnaaf said, in Halaha all things are done thru understanding, no writing, no commitments, no conditions, no obligation on second husband to release the wife.
Well, if I go to a prostitute and by understanding we agree that I will do nikah with her in presence of two pimps (dalals) and do sex with her and then divorce her after sex. In this way all the things are exactly same as done in halalah. no writing, no commitments, no conditions. But I entered in nikah with an intention of doing sex and divorce. And 99.9% chances are I will keep my intention. However,
I may keep her forever or as long as I wish or I may divorce her also after sex.

The above is a mutual understanding only which can be developed easily. Next night I bring another girl and do the same and so on and so far.

Is this nikah valid ???? if yes then all the prostitution and adultery can be legitimized (only by understanding, no conditions) and if not valid then why halalah nikah is valid ? what is the difference between this nikah and that nikah

Note the common things in both

1. Divorced couple search a trustable person who understand the situation and agree to help the couple. I Search for a girl for the same
2. Only understanding, no conditions in both cases
3. Wife and second husband enters in nikah with intension of doing sex and then divorce, no time frame stipulated but understood to be ranging from 10 min to a night practically. Same here with the prostitute case.
4. Both cases have Two witnesses and maher money.
5. In both cases, husbands have the power not to divorce but if they do so will be against understanding but legally they can do so but practically only one in ten thousand cases will end up in continuity of relation.
6. Most practically, wife is divorced after sex in both cases but not compulsory.


Now please tell us, is this nikah valid with prostitute and no zina counted and if not why nikah in halah is valid? What is the difference between both. Please note I need a detailed and to the point answer.

Regards and Jazakallah.


Abdullah bin Abdullah
Qatar




<

 

Reply By : Mohammad Asad Qasmi
Designation : Mufti, ODI, MMERC, Mumbai 

In the name of Allah the most Gracious the most merciful

The answer to your question is as follows:

The concept of halalah, where the divorcee of three times (Talaq-e-Mugallazah) is required to marry another man and have the marriage consummated as a precondition for her to revert to her husband is expressly mentioned in the Quran (Baqarah: 230) and many Ahadith (Bukhari, vol. 2 - pg. 731 H.M. Saeed). Allah Ta'ala is Al-Hakeem (The All-Wise). Every decree of Allah is filled with wisdom. The full depth of the wisdom of Allah Ta'ala can never be fathomed by all the most intelligent people of the world. We as the slaves of Allah Ta'ala are duty bound to express submission to Allah. He is our Master and we are His slaves. We have to simply obey the orders of Allah whether we understand them or not. Allah out of infinite mercy has also granted the understanding of deen to the Ulama. That understanding creates a sense of fulfillment in expressing servitude to Allah. The practice of halalah is the express order of Allah. This was also advised by Rasulullah (sallallahu alayhi wasallam) to the wife of Rifa'ah Al-Qurazi who was previously married to Abdul Rahman Ibn Zabeer. This incident is recorded in almost every book of Hadith and several places in Bukhari. Let us briefly discuss the wisdom of this decree of Allah. Shariah has granted a lofty position to a woman as a daughter, as a wife, as a sister and as a mother. She ascends on the throne of nobility as she passes the different phases of a woman. My focus here is only on her position as a wife and maintaining the marriage bond.

It is mentioned in Bukhari that at the time of Jaahiliyah a man could divorce his wife for any number of times and take her back as he wished to. Any noble woman would understand the trauma of this practice. She can never be focused in life. There is absolutely no dignity or honor for her if she is repeatedly divorced. Her position as a wife is always in suspense. She was no more than a cheap commodity, in fact worse. The reasons for that are clear as she is a human being with feelings equal to a man. Shariah has restored her with a right of dignity and restricted the unlimited number of divorces. If a man wants her as a wife, he must understand the commitment of marriage and the respect of his wife. He knows ahead of time that the limit of divorce is three. Shariah has advised him that divorce is the most abhorred thing. Rasulullah (sallallahu alayhi wasallam) said, Verily the most abhorred among permissible things is divorce. The husband must exercise restraint and tolerate his wife just as she too, tolerates him.

If he divorces her expressly one or two times (Talaq-e-Raji) in one sitting or in different sittings then he can unilaterally take her back within the period of iddat. He cannot take her back thereafter without her consent. This is also the ruling if an indicative divorce (Talaq-e-Ba'in) was issued. It is now her independent right. She must decide whether she wants to live with the man that divorced her and abused her. Once he gives her three divorces, he just cannot have her back. Now it is not even her right to decide to go back to her ex-husband. Shariah steps in to protect her dignity and honor and stop abuse against her. A woman by nature gives in more often and easily than a man. It is possible she may simply subject herself to her abusive husband. Shariah considers her nature and now throws a strong armour around her. She now is the sole right of the Shariah. Now nobody owns her. Her abusive husband needs to be treated with contempt. Any noble man who knows the consequences of three divorces and the process to have his wife back will never divorce his wife. He will respect her and tolerate her. The purpose of halalah is clearly misunderstood. It is incorrectly regarded as an unjust punishment to the divorcee. In fact, the institution of halalah is to protect a woman against the abuse of divorce. If a man cannot respect his wife, he is not worthy of respect. He must be taught the hard way. This does not mean that halalah is a punishment to the woman. Shariah does not impose on her to remarry. It is her right. She can choose not to re-marry. If she does marry, it should not be to merely fulfill a prerequisite to revert to her ex-husband. It is to be a marriage of honor and dignity, a permanent and normal marriage with all its rights. If this marriage happens to be unsuccessful, then again she has the right to marry her ex-husband. She does not have to do if she chooses not to remarry him. It is clear from the above explanation that the concept of halalah is:

1. To protect the wife from the abuse of her husband.

2. The husband should understand the implications of three divorces and exercise restraint.

3. If he does not contain himself, he cannot be given an unlimited right of divorce.
(And Allah knows best)

To view complete list of questions posted on the topic Click Here

To post your Question Click Here.




Eastern Cresent

http://www.markazulmaarif.org/img/ec/2012/October/ecOctober_cover2012_200.JPG
Current Issue October 2012
Click here to join markazulmaarif E-Groups on Yahoo!