Question:

The relationship between husband and wife is not going very well. Domestic disputes mainly caused by husband's parents. The wife was satying over her parents for a few nights (as a custom). During that stay the husband sent two text messages to his wife (exact text is sent to u seperately). On reciept of the sms the wife's family, mainly her father, came to the husbands house and took all her belongings without any notice or saying anything to them. After this for several months there was no contact between the husband and wife or their family. The husband assuemed that the two family members will sit down to come to a resolution. However, after approx 4months and 3weeks the wife's father married her off to someone else. The 1st husband or his family had no knowledge of this. Recently the 1st husband, after returning from Hajj, learnt about what had happened. The wife's family based everything on those two sms claiming that was a divorce. 1st husband claims he never divorsed her nor did he have any intention of divorce when he sent those sms.

Q: looking at the sms was that a divorce?
Q: was the second marriage ligitimate, when the 1st husband claims not to have divorced her?
Q: what should be done now? How can this issue be resolved?

Please answer according to hanafi fiqh. Jazakallah.

1st husband's sms is included bellow...

SMS begins:

Text 1:
Salaam. I've been thinking a lot and your right. I don't do anything for u or be romantic to u. I don't put u on top of the list. Im not brave enough Im too scared of things . I always break your heart n upset u n make u cry. That's y i think it'll b better if we don't get back together. Plz don't call me coz i don't like hearing u cry. U won't believe me it hurts me a lot. I take a lot of the blame for this relationship not working out. Plz forgive me.
(Sent on 21st May 2012 @ 07:17)

Text 2:
Im sorry i didn't return your calls or call u. Its not gonna b the same after all that's happened. Its not gonna work out. Its better for both of us. Like u said your young and u will get someone who.takes care of u. Don't worry about me. Whatever Allah has written will hapen. Once more Im sori 4evrythng
(Sent on 22nd May 2012 @ 08:13)

Wife's clothes was taken on 22nd May 2012 from the 1st husband's house.

wife got remarried on 11th october 2012.

Answer:

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

There is no statement of divorce in those two text messages that the first husband sent to his wife and, therefore, no divorce took place. Hence, the woman's marriage with the second 'husband' was illegitimate and invalid; and she remains the wife of the first husband. However, after the illegitimate marriage if the second 'husband' has had sexual intercourse with her, then he must pay her either the stipulated mahr or the mahr al-mithl, whichever of the two is lesser. If he has not had sexual intercourse with her then he does not have to pay her any mahr.

 

Regarding whether iddah is compulsory on the woman, the ruling is as follows:

 

At the time of the illegitimate marriage, if the second 'husband' did not know that she is still married to her first husband, it will be compulsory on her to undergo iddah provided that the second 'husband' has had sexual intercourse with her. The iddah will start from the time the second 'husband' or the 'wife' says to the other (as the case may be): "I have left you". If, on the other hand, the second 'husband' did know at the time of the illegitimate marriage that she is still married to the first husband (regardless of whether or not he has had sexual intercourse with her) or he did not know this but he has not had sexual intercourse with her, then she will not have to undergo iddah.

 

في الدر المختار: (ويجب مهر المثل في نكاح فاسد) ... (بالوطء) ... (ولم يزد) مهر المثل (على المسمى) لرضاها بالحط، ولو كان دون المسمى لزم مهر المثل ... ( وتجب العدة بعد الوطء) ... (من وقت التفريق) أو متاركة الزوج  وإن لم تعلم المرأة بالمتاركة في الأصح ؛ وفي الشامي: وخص الشارح المتاركة بالزوج كما فعل الزيلعي لأن ظاهر كلامهم أنها لا تكون من المرأة أصلا مع أن فسخ هذا النكاح يصح من كل منهما بمحضر الآخر اتفاقا. والفرق بين المتاركة والفسخ بعيد كذا في البحر. فرق في النهر بأن المتاركة في معنى الطلاق فيختص به الزوج، أما الفسخ فرفع العقد فلا يختص به وإن كان في معنى المتاركة، ورده الخير الرملي بأن الطلاق لا يتحقق في الفاسد فكيف يقال إن المتاركة في معنى الطلاق، فالحق عدم الفرق، ولذا جزم به المقدسي في شرح نظم الكنز إلخ، وتمامه فيما علقناه على البحر ( رد المحتار: 3/ 131، سعيد )

 

ولو تزوج بمنكوحة الغير وهو لا يعلم أنها منكوحة الغير فوطئها تجب العدة، وإن كان يعلم أنها منكوحة الغير لا تجب حتى لا يحرم على الزوج وطؤها، كذا في فتاوى قاضيخان ( الفتاوى الهندية: 1/ 280، رشيدية )

 

( فتاوى محمودية: 11/ 87، فاروقية )

( احسن الفتاوى: 5/ 21 )

And Allah knows best

 

Mufti Faizal Riza

19/11/2012

 

Checked and approved by:

Mufti Ebrahim Desai

Mufti Emran Vawda

 

Darul Ifta Australia

www.mufti-online.net

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