He divorced her three times; can he take her back on the grounds that the marriage was invalid?!
Question:
I read question nr.96460 and nr.85335 And this question is similary to these to question but I have to ask to be sure about my situation. My husbond and I mad a big sin wich is committing zina. Me and my husbond didnt repent before we got married. But after a few years we got divorced and he did give me tree divorced but now my question is. Was our marriage valid or not.And if it wasnt and we wish to get back to each other again does it mean that we are starting from fresh,I mean does he have tree divorced that he can give me?.
Answer:
Praise be to Allaah.
Firstly:
The fuqaha’ differed as to whether the marriage of a zaani to a zaaniyah before they repent is valid. The majority are of the view that it is valid but the Hanbalis are of the view that the marriage of a zaaniyah is not valid unless she repents, but they did not stipulate that the zaani should repent in order for the marriage to be valid. Al-Insaaf (8/132) and Kashshaaf al-Qinaa’ (5/83).
Repentance means giving up the action, regretting it and resolving not to go back to it.
What is mentioned in the question indicates that you have adopted the view that the marriage is not valid.
Secondly:
The marriage concerning which there is a difference of opinion is called a faasid (flawed) marriage. The one who did that believing it to be faasid is a zaani, but the one who did that believing it to be valid – which is the case for most of those whose marriages are the subject of scholarly differences of opinion, such as marrying without a wali (guardian) or marrying when the wali or witnesses are evildoers (faasiq) – is not regarded as a zaani, and his marriage comes under most of the same rulings as a valid marriage:
He must pay the mahr (dowry), the child is to be attributed to him, and his divorce counts as such if he issues a divorce.
After divorce has taken place, no one should enquire about the marriage contract and whether it is valid or not so as to get out of the divorce, because this is toying with the religion. If he enjoyed intimacy with his wife on the basis that she was his wife, then he divorced her so as to remove the marital ruling that he believed was in effect, then how can he come back and say that the marriage was not valid? Shaykh al-Islam Ibn Tamiyah (may Allaah have mercy on him) was asked about a man who married a woman whose wali was an evildoer and consumed haraam wealth and drank alcohol, and the witnesses were the same, then he divorced her three times – was there any concession that would allow him to take her back?
He replied: If he divorced her three times then divorce has taken place, and the one who questions the validity of the marriage contract after divorce when he did not question its validity before that is transgressing the sacred limits of Allaah. He wants to make permissible that which Allaah has forbidden before the divorce and after it. Divorce in the case of the flawed marriage concerning which the scholars differed counts as such according to Maalik, Ahmad and others. A marriage with the consent of a guardian who is an evildoer is valid according to the majority of imams. And Allaah knows best. End quote from Majmoo’ al-Fataawa (32/101),
He also said (32/99):
Divorce counts as such in a marriage that is the subject of scholarly dispute, if the person believes that it is valid. End quote.
He also said:
After the third talaaq (divorce), no one has the right to examine the wali and ask if he was of good character or not, so as to make the unsuitability of the wali an excuse for rendering the divorce invalid. Most of the fuqaha’ regarded the guardianship of an unsuitable wali to be valid, and most of them regarded divorce as valid in the case of such marriages, and even in the case of other flawed marriages.
This husband thought it was permissible for him to have intercourse with her before divorce, and if she died he would have inherited from her, so he was acting on the assumption that the marriage was permissible. So how can he act on the assumption that it was invalid after getting divorced? So the marriage was valid when he had something to gain from its being permissible, and it was invalid when he had something to gain from it being invalid. This view is contrary to the consensus of Muslims who are unanimously agreed that the one who believes that something is permissible should believe that regardless of whether it is in accordance with his aims or not. The one who believes that something is haraam should believe that whatever the case.
These people who issue divorces did not think that the marriage was flawed because of the wali being unqualified when they were enjoying intimacy or inheriting, but after the threefold divorce they are thinking along these lines. So now they are following those who say it was flawed, whereas before the divorce they were following those who said that it was valid, according to their aims and their whims and desires. Such an approach is not correct according to the consensus of the ummah. End quote from al-Fataawa al-Kubra (3/204).
Ibn Rajab (may Allaah have mercy on him) said: Most rulings concerning sound marriage are also applicable in the case of a flawed marriage, such as the validity of divorce, and the obligation of observing ‘iddah after the husband’s death, and observing ‘iddah after separating from him in life, and the obligation of stating the mahr in the marriage contract, and the mahr becoming binding in full when they are alone together, in which case the entire named mahr must be given, as is in the case in a sound marriage. End quote from al-Qawaa’id (p. 68).
Al-Bahooti said in Kashshaaf al-Qinaa’ (5/237): Divorce counts as such in a marriage whose validity is disputed, such as a marriage with a wali who is an evildoer, or a marriage with two witnesses who are evildoers, or marriage to a sister during the ‘iddah of her sister who is irrevocably divorced, or shigaar (quid-pro-quo) marriage, or marriage aimed at making it permissible for a woman to return to a former husband, or marriage without witnesses or without a wali, and so on, such as marriage of a zaaniyah during her ‘iddah or before she has repented. End quote.
This is the answer to our question here, which is the marriage of a zaaniyah before she has repented, and that divorce counts as such in such a marriage. We have stated above that the majority of scholars regard such a marriage as valid.
Based on that, there is no confusion among them as to whether divorce has taken place. The Hanbalis say that the marriage itself is flawed, but they regard the divorce as valid. Thus it is known that all are agreed that divorce counts as such in this case.
Based on that, it is not permissible to annul the divorce that has taken place, and it is not permissible for you to go back to this husband until you have married another husband in a valid marriage with the intention of it being permanent, not with the aim of making it permissible for you to go back to your former husband. Then if it so happens that the second husband divorces you or dies, then you may go back to the first one with a new marriage contract.