Question Summary:
I’m a second wife of my husband when we got married, he told me that he has a wife with kids but she is separate and she is filing for divorce (which later on he mention that it was his guess that she was filling for divorce) I agreed to marry him because he told me that I will help him raise his kids as a good muslims.can I ask for divorce? is this a sin? Question Detail:
I’m a second wife of my husband when we got married, he told me that he has a wife with kids but she is separate and she is filing for divorce (which later on he mention that it was his guess that she was filling for divorce) I agreed to marry him because he told me that I will help him raise his kids as a good muslims.
since the first wife is a converted muslim. But now more then one year passed there is no divorce and he is telling me that for kids sake he has to go stay with her but he will not tell her ever and by hiding from her he will pay me visits. And he is also telling me if I give up my rights like about spending time, money, and other matter then he can manage the two wives it means he will come to me when he can and give me fix money but not equally. Bear in mind that our marriage is not disclosed to anyone in our families because he told me his case is pending in court about his children visitation and it can create problems for him. right now he has limited visitation to his kids due to his wife filed the case of neglecting( which is not true) and he talk to them over the phone,.
this is my second marriage too and I have one 10 year old and my husband passed away. By Allah’s guidance I’m learning deen and trying hard to practice in my daily life, Alhumdolliah. I have good heart and I want to stay with him and help him but no matter how hard I’m trying my mind is not in peace because I feel more like his girl friend, then his wife. I know he has his four marriages right from Allah and I have no objection but what I should do when I cant bear this. The way he comes and go its hurt me and my son need a father figure that’s why I got married which I think he is fail to be there for me and him he comes to me when he can and since he never want to tell her about us it will be difficult for him to do justice.
Please tell me if he cant do justice between two of us and I don’t want him to divorce her, can I ask for divorce? is this a sin? I’m mentally and emotionally getting hurt and it is also effecting my son. Please reply soon
Answer :
In the name of Allah, Most Gracious, Most Merciful
Assalaamu `alaykum waRahmatullahi Wabarakatoh
If the wife proposes for a khula, and the husband agrees, a talaaq e baain will take place.
تبيين الحقائق شرح كنز الدقائق - (ج3 / ص 182دار الكتاب ديوبند(
وحكمه وقوع الطلاق البائن
در المختار - (ج 3/ ص 440 سعيد)
لو قال : خلعتك - ناويا الطلاق - فإنه يقع بائنا غير مسقط للحقوق لعدم توقفه عليها
المبسوط - (ج 3 /الجزء السادس ص 141 دار الفكر )
والخلع تطليقة بائنة عندنا
فتح القدير - (ج 4 / ص 58 رشيدية)
( قوله فإذا فعلا ذلك وقع بالخلع تطليقة بائنة ولزمها المال ) هذا حكم الخلع عند جماهير الأئمة من السلف والخلف….
البحر الرائق شرح كنز الدقائق - (ج 4 / ص 71 رشيدية)
( قوله الواقع به ، وبالطلاق على مال طلاق بائن ) أي بالخلع الشرعي أما الخلع فقوله عليه الصلاة والسلام الخلع تطليقة بائنة ، ولأنه يحتمل الطلاق حتى صار من الكنايات ، والواقع بالكناية بائن ،
الهداية - (ج 2 / ص 404)
فإذا فعلا ذلك وقع بالخلع تطليقة بائنة ولزمها المال لقوله عليه الصلاة و السلام : [ الخلع تطليقة بائنة ] ولأنه يحتمل الطلاق حتى صار من الكنايات والواقع بالكنايات بائن
احسن الفتاوى (5/380 سعيد)
الفتاوى المحمودية (ج13/ 341 جامعة فاروقية )
Talaaq e baain severes the nikaah. If the ex-husband and wife wish to reconcile, they may do so with a reperformance of a new nikaah.
الفتاوي الهندية (ج 1 / 473 رشيدية )
اذا كان الطلاق بائنا دون الثلاث فله ان يتزوجها في العدة و بعد انقضائها
الهداية (ج2/ 399 شركة علمية)
اذا كان الطلاق بائنا دون الثلاث فله ان يتزوجها في العدة و بعد انقضائها لان حل المحلية باق
در المختار (ج3/ 409 سعيد )
و ينكح مبانته بما دون الثلاث في العدة و بعدها بالاجماع
احسن الفتاوى (5/379 سعيد)
2)Nikaah is a sacred bond where the sublime name of Allah is uttered to bring two individuals together who were totally forbidden for each other. Hence, we should always try to look for solutions to save the marriage. There is no individual who is immune to faults; however the challenge is to learn how to accept another person inspite of his/her shortcomings. One effective method of reconciliation would be to carry out the noble advice mentioned in the Quraan, where Allah says
وإن خفتم شقاق بينهما فابعثوا حكما من أهله وحكما من أهلها إن يريدا
إصلاحا يوفق الله بينهما إن الله كان عليما خبيرا (النساء35)
“If you fear a breach between the two of them (i.e. husband and wife) appoint (two) arbitrators, one from his family and the other from hers; if they wishfor peace Allaah will reconcile them for Allaah has full knowledge and is acquainted with all things”
The arbitrators are appointed from the side of both spouses who would discuss the problem. Allah says that if the husband and wife really seek reconciliation, through this method, Allah would reconcile between them.
However as a last option you could resort to khula.
Khula is subject to the approval of your husband, as it resembles a transaction, which requires offer and acceptance (ijaab wa qabul).
بدائع الصنائع (229-3 دار الكتاب ديوبند)
و اماركنه فهو الايجاب والقبول
احسن الفتاوى (5/384 سعيد)
الفتاوى المحمودية (ج13/ 344 جامعة فاروقية )
It appears from your question that you are of the opinion that only the husband is entitled to take the case to the local ulama. If the wife feels the marriage will not work out, as a last resort, she is also entitled to take the case to the local Ulama, who will annul the marriage if they deem it appropriate.
(Fatawa Rahimiyya 7-378 Darul isha’at with reference to Al hilatun naashiza)
Hence, if the husband does not accept the khulah, the only option is for the wife to go to the local Ulama, with or without his consent.
And Allah knows best
Wassalam
Ml. Ismail Moosa,
Student Darul Iftaa
Checked and Approved by:
Mufti Ebrahim Desai
Darul Iftaa, Madrassah In'aamiyyah
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