Fatwa: # 18565
Category: Divorce
Country: Pakistan
Date: 20th March 2010

Title

I divorced my wife Sakina with one irrevocable divorce (Talaaq-e-Bain) a year ago. She left me that time and has not come back. We have also not yet performed 2nd Nikah.

Question

Dear Mufti Ebrahim Desai sahib (damat barkatuhum)
Assalamu Alaikum Warahmatullah

I hope you find this question in best of health and circumstances.

I divorced my wife Sakina with one irrevocable divorce (Talaaq-e-Bain) a year ago. She left me that time and has not come back. We have also not yet performed 2nd Nikah. Few days ago I said thinking her that "AGAR SAKINA SE SHAADI KARON TO USKO TEEN TALAAQ' in English "If I marry to Sakina then Three divorces to her"
Sakina is my ex-wife name.

Please let me know in the light of Shariah if I follow any of the following procedures will Two more Talaaq still take place on marrying her and thus this will make my wife Sakina Haraam for me.

1. If I inform my elder brother that I have made a statement "Agar Sakina se shaadi karon to usko teen Talaaq" and now I would like to re-marry her which can only be done via proxy (Nikah-Fudhuli). when he asks me what is Nikah-Fudhuli then I tell him to contact a Senior local Mufti sahib and he goes to him and gets to know of Nikah-Fudhuli. After this my elder brother goes to my wife Sakina and marries me with her with Rupees 25000 Mehr.. When I come to know of this I consent to Nikah practically like I send her the prescribed Mehr.

2. If I inform my brother-in-law (wife's brother) that I have divorced your sister with one irrevocable divorce in past and now would like to renew the Nikah. I want it to be done via proxy (wakeel). Then my brother-in-law marries my wife with me and I do not utter a single word from my mouth that time and then he goes to his sister and do Ijaab-o-Qabool. When I come to know of this Nikah, I consent to it practically like I send her the prescribed Mehr.

3. If I take fatwa from Darul Iftaa, Madrassah Inaamiyyah, Camperdown and take it to my eldest brother and tell him that now I want to marry Sakina and this is the Fatwa Mufti Ebrahim Desai sahib has given me. Then my eldest brother marries me to my ex-wife Sakina according to procedure which you will give. He then informs me that my Nikah has been made and I consent to it practically.

Please elaborate me with complete procedure via which if I marry my ex-wife Sakina then no divorce should fall.

May Allah rewards you for this noble cause.

Shukran and Jakallah

Answer

In the name of Allāh, Most Gracious, Most Merciful


Assalāmu ῾alaykum wa Rahmatullāhi Wabarakātuh

 

Firstly, take note that if you yourself do your nikah with Sakina, she will become divorced with three talaaqs. Similarly, if you instruct someone else to do your nikah with her (i.e. you make him your agent) and he does the nikaah, she will become divorced with three talaaqs. If you instruct someone to act as a ‘fudhuli’ and do your nikaah with Sakina, he will not be counted as a ‘fudhuli’; instead, he will be counted as your wakeel (agent), and therefore if he does your nikaah with Sakina, she will become divorced with three talaaqs.

 

The procedure to marry Sakina without her being divorced is as follows. Follow it strictly:

 

In the presence of an intelligent person, say to him “I have uttered ‘If I marry Sakina then three talaaqs to her.’ Now I want to marry her. However, because of the statement I uttered, neither can I marry her myself nor can I tell someone else to marry her to me. But there is a way for me to get married to her without her being divorced. And that way is that someone without my permission does my nikaah with her by saying to her, for example ‘I have done your nikaah with <<your name>> for <<amount>> rupees.’ Then Sakina replies ‘I have accepted.’ This should be done in the presence of at least 2 male (or 1 male and 2 female) witnesses. After this, he comes and tells me that ‘I have done your nikaah with Sakina. Give me <<amount>> rupees for the mahr.’ After listening to that I will not utter a single word. Instead, I will give him either the full amount or part of the amount to give to Sakina. Then he will go and give the amount to Sakina. This way, my nikaah with Sakina will become valid and she will not get divorced.”

 

After listening to the above, if the person does what was mentioned, your nikaah with Sakina will become valid and she will not be divorced.

 

Important:

 

When the person comes and tells you that he has done your nikaah with Sakina, do not say anything, because if you give permission for the nikaah verbally, she will become divorced with 3 talaaqs.

 

(Imdaadul Fataawa 2/458 pub. Darul Ulum Karachi)

(Fataawa Mahmoodiya 13/83, 91, 97 pub. Maktaba Sheikhul Islam Deoband)

(Ahsanul Fataawa 5/176 pub. Saeed)

 

You may show the person this fatwa.

And Allāh Ta῾āla Knows Best
Wassalāmu ῾alaykum


Ml. Faizal Riza
Correspondence Iftā Student, Australia


Checked and Approved by:

Mufti Ebrahim Desai
Dārul Iftā, Madrasah In῾āmiyyah

 

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