halaala

Question:

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 Allah, the Most Gracious, the Most Merciful.

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 former 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 Allah knows best.

Mufti Faizal Riza
Darul Ifta Australia
www.mufti-online.net

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