Fatawa Answer

Question: Will their remarriage be permissible according to the Shariah of Islam? Please present reasons.

ID: 1715

Name: Marriage and Divorce

Question

They got married on March 20, 2020. At the time of the wedding, the bride was staying in America and the groom was with his family and the bride’s family in Bangladesh. In the video call, the bride accepts, and her father signs on behalf of the bride. Bride accepts (says the Kobul) over video call that her father, Kazi, and everyone else listened. Bride’s father did not pronounce anything on behalf of her. The dowry was written as collected in the Kabin, but the groom did not give it to the bride’s family.

After a few days of marriage, quarrels started between them over the phone, and the bride sometimes started abusing her husband, because she felt mentally stressed and helpless. The groom had informed the bride from the beginning that if she abused him for any reason, the bride would be divorced for the fourth time. Such abuse happened more than four times. The bride repeatedly apologized for her actions and asked for time until she returned home. Regardless, the groom divorced her according to the Muslim Shariah of that country on November 9, 2020, before she arrived in her home country. Before the divorce, the groom did not inform the bride and did not discuss it with her family.

For divorce, the groom went to a law firm and got a lawyer’s help. There the Kazi Saheb recites the Khutba and recites aloud who is divorcing whom. The groom nods three times to the yes indicator response. Then signed the written divorce papers. It is noted that the lawyer gave two options to the husband: 1) to give three talaqs at once (Talaq e Bayeen), 2) to give one Talaq, and then to give the remaining two talaqs at intervals of one month. The lawyer said that triple Talaq in one sitting would be effective after three months, like one Talaq in one sitting, but the husband need not go and sign three times. The groom opted for three divorces (Talaq E Bayeen) in one sitting. The divorce papers are sent to America and then she comes home. The bride tries to communicate with the groom and his family, but they do not give her a chance. Then in March 2021, the divorce became official.

NB: Remarriage with the divorced partner for the second time is allowed under the counsel of their marriage & divorce. In this case, for one time marriage, one time divorce is counted even though the divorce is pronounced thrice. In this way, after marrying and divorcing three times, the husband and wife becomes haram for each other. The link is attached here (see section 7: Talaq)

http://bdlaws.minlaw.gov.bd/act-details-305.html

Answer

بسم اللہ الرحمٰن الرحیم

:الجواب وباللہ التوفیق

The Nikah in question appears doubtful. There are certain conditions for online Nikah to be valid. If those are not complied with, the Nikah will not be solemnized. 

The basic condition is that the “proposal and acceptance" is conducted in the same venue and assembly. But if both parties are living in different countries or places, then it is necessary that either the groom-to-be or the bride-to-be assigns a person who represents the sender's party in front of the other party to conduct “proposal and acceptance” consents in presence of two witnesses.Only through that arrangement, Nikah shall be considered right and solemnized, otherwise not.

There is an uncertainty and doubt about the Nikah carried out in your case.Therefore, the divorce decree can only be issued when the marriage isrightly solemnized, otherwise, it cannot be issued.

Suppose the marriage was valid, but solitude did not take place between the spouses, the ruling in that case is the following:

a.If the husband gave three talaqs repetitively in succession in the same sentence, whether verbally or in writing.For example, if he had said and written that “I have given three talaqs to so-and-so, daughter of so-and-so”, then three talaqs will be imposed on the wife, and remarriage with this divorcee is not permissible without Halala.

b.But if the husband had given talaq three times in three separate sentences, then the wife will be divorced based on the first talaq as “Talaq Baa'in” according to Sharia law, and only one talaq will be applied to her.In this course of action, the man and his divorced wife have the option to re-marry during “Iddah” or after the “Iddah” period through a fresh marriage contract “Nikah” and new dowry.After that, the husband will be left with two divorces to apply, and after imposing two remaining divorces, his wife will become permanently divorce.

قال اللہ تعالیٰ: ’’فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ ‘‘(سورہ بقرہ:۲۳۰)

فتاویٰ شامی  میں ہے: 

وان فرق بانت بالاولیٰ لا الی عدۃ ولذا لم نفع الثانیۃ  ای ما بعد الاولیٰ بخلاف الموطؤۃ أی ولو حکما کالمختلی بھا فانھا کالموطؤۃ فی لزوم العدۃ وکذا فی وقوع  طلاق بائن آخر فی عدتھا ۔(ردالمحتار:۷؍۳۸۲)

فقط واللہ اعلم بالصواب

Answered On: Wednesday, Nov 08, 2023 | N/A

Answered By: Mufti Mohammed Ataur Rahman Sajid

Checked By: Mufti Mohammed Navalur Rahman