Part 17

A disagreement, however, arose concerning the validity of the marriage of the second suitor:

ihe According to Imam Malik and Imam Ahmad in one of the two narrations after him, such marriage is not valid.

2. According to Imam Abu Hanifah, Imam AlShafi’i and the second narration after Imam Ahmad, such marriage is valid. This opinion is based on the fact that what is unlawful is the proposal, not the contract of marriage. The first opinion is based on the argument that as the contract of marriage is the result of the proposal, which in invalid, the contract of marriage itself turns invalid by way of analogy. There is no disagreement,

however, on the point that one who propose to a woman already engaged to another is a sinner.

A woman proposed to during her ‘Iddah (waiting period)

Q: A suitor proposed to a divorced woman in her ‘Iddah and supported her financially. What is the judgment on this?

A: It is not lawful to explicitly propose to a woman in her ‘Iddah of divorce. It is not even lawful to propose to a widow in her ‘Iddah, following the death of her husband. Both the suitor and the fiancée should be given a deterrent punishment and should be hindered to marry one another, a punishment which is contrary to their purpose.

Muhallil (a man who married a woman then divorces her so that she may return to her previous husband who irrevocably divorced her)

Q: A man divorced his wife thrice. After the completion of her ‘Iddah, she married and then was divorced on the same

day. Her ex-husband did not know about her second marriage and then her divorce except after two days. Is he permitted to return her after the completion of the ‘Iddah

A: The ex-husband is not permitted to propose to his exwife during her ‘Iddah, following her divorce from her second husband. If divorce is revocable, he cannot propose to her implicitly either. But if the divorce is irrevocable, the implicit proposal is disagreed upon among the Muslim scholars. These judgments apply if the second marriage was not prearranged by either the ex-husband or his exwife in order to return to return to each other. This kind of marriage is known as “Muhallil marriage”. The Prophet (peace be upon him) said: “May Allah curse the Muhallil and the one for whom Muhallil is procured.”

Q: A suitable suitor proposed to a woman and agreed with her father on the amount of dower, which was in two portions, one was to be paid before marriage and one deferred. The first portion was paid to the father throughout a period of four years. Meanwhile, the suitor supported the family of his fiancée financially. No written document is there to prove the amounts paid b the suitor. Another suitor then proposed to the same woman and

offered a greater amount of dower and hindered the first suitor from marriage. What is the judgment on this?

A: It is not lawful for a man to propose to a woman already engaged to another and such engagement is accepted by the guardian of the fiancée. In a hadith the Prophet (peace be upon him) said: “It is not lawful for a man to propose to a woman already engaged to his brother (Muslim).” Whoever does this, or supports others in doing this, should be punished a deterring punishment.

Private meeting of a man with a woman

Q: Is it permissible to aman to meet in private with the wife of his husband and his female cousins?

A: It is not permissible to a man to meet in private with the wife of his brother or with his female cousins. However, if he is accompanied by others in this meeting, and no suspicion is feared, it is the permissible.

Q: A man divorced his wife thrice. They have two children. The wife has been residing in the house of the

husband for two years following the divorce. Is she permitted to eat from his food? Is she still considered under his control?

A: A woman divorced thrice becomes forbidden to her exhusband, just as any other woman. He is not entitled to have private meetings with her or to look at parts of her body, which he is not permitted to see from other women, whom he can marry. He, further, has no control over her. He is not permitted to agree with her to marry another man then be divorced from that man and in order to return to him. He is not permitted also to give her an outlay in return for this. If she marries another man in a way known to all Muslims, then her new husband dies, or divorces her thrice, the ex-husband cannot propose to her in her ‘Iddah.

This is according to the consensus of Muslim scholars. Allah the Almighty said what means: “There is no blame on you if ye make an indirect offer of betrothal or hold it in your hearts. Allah knows that ye cherish them in your hearts; but do not make a secret contracts with them that you speak to them in terms honorable,...”

In this case the ex-husband is strongly forbidden to conclude a marriage contract with the woman until the term of ‘Iddah is completed.

The proxy of a dhimmi in marriage of a Muslim

Q: A man appointed a dhimmi person to be his representative in accepting marriage with a Muslim woman. Is this kind of marriage valid?

A: Disagreement has arisen concerning this question. A representative in proxy marriage should be one whose acceptance of marriage for himself is valid. If one appoints a woman, a minor child, or an insane person to be his representative in a proxy marriage, such marriage will not be valid. If a representative is such one whose deputy acceptance of marriage is not permitted unless after the approval of his guardian, such as the case of a slave, there are two opinions concerning this, ascribed to Imam Ahmad and others. If his acceptance of marriage is valid without taking a permission from another person, such as the case when a female-salve is sought in marriage by a representative who cannot legally marry her, such kind of proxy will be valid.

As for choosing a dhimmi person to be one’s representative in the proxy marriage, this case resembles the case when a dhimmi person gives in marriage his dhimmi daughter to a Muslim. If he marries her to a dhimmi person, such marriage will be valid. But if he marries her to a Muslim, there are two opinions concerning this case in the Juristic School of Imam Ahmad bin Hanbal and others.

The first opinion is that such kind of marriage will be valid. The second opinion is to the contrary. Based on the second opinion, a Muslim who marries a dhimmi woman by proxy should appoint a Muslim representative. It was also said that such match cannot be concluded except by the ruler, as he is considered a guardian for all Muslim men and women in the question of marriage.

As for the opinion that provides that all the above solutions are permissible, it is founded on the argument that the ownership by virtue of the contract of marriage is realized to the husband not to the representative, but this is not the case in other types of contracts.

The Muslim jurists differed over this last question: Imam Al-Shafi’i, Imam Ahmad and others are of the opinion that the rights of the contact of marriage are related to the representative, but the ownership resulted from the contract is related to the husband, who is the Muslim seeker of representation.

The dhimmi representative in lieu of a Muslim in a marriage contract resembles a representative who cannot marry the woman whom he is made a representative to conclude the contract of marriage with her, such as her maternal uncle, who can be a representative in her marriage, but cannot himself marry her. But it is preferable not to make a dhimmi person a representative to a Muslim in marriage contracts.

It is desirable to conclude the contract of marriage in a mosque, as it was narrated that: “Whoever witnesses the marriage of a Muslim, is like one who witnessed a conquest in the cause of Allah.” Thus, according to the opinion of Ahmad and others, the contract should be concluded in Arabic.

A. disbeliever should not be a representative to a Muslim in a proxy marriage contract, but if it happens the contract will be valid, since there not legal proof to claim its being invalid.

Q: A man married while his being ill. Is his contract of marriage valid?

A: The marriage concluded by an ill person is valid, and his wife will be entitled to inherit him and to receive the portion of dower equal to her counterparts in her family, without any increase. This is according to the consensus of the Muslim jurists.

A woman marrying with a guardian other than her father

Q: A man has a daughter who has not attained maturity yet. She was married without a guardian in the absence of her father, claiming that the father was dead and presenting her maternal uncle as her brother. Is this contract of marriage valid or not?

A: If the maternal was attested to be her brother, such attestation will be regarded as false. This way the maternal uncle cannot be regarded as a guardian to her. Rather, the marriage will be considered to concluded without the presence of the guardian of the bride, which means that it is null, according to most of the Muslim scholars and jurists, such as Imam Al-Shafi’i, Imam Ahmad and others. The father may renew this contract of marriage if he likes. The one who witnessed that her maternal uncle is her brother and that her father is dead will be considered as making a false testimony and should be punished a discretionary punishment as well as the maternal uncle. If this marriage is consummated, the wife will be entitled to the entire amount of dower, should it is put to an end. The father has the right to marry her during the ‘Iddah (waiting period) of such invalid marriage. The is according to the opinion of Imam Abu Hanifah, Imam Al-Shafi’i and the famous opinion of Imam Ahmad bin Hanbal.

A lying woman who changes her name and the name of her father

Q: A woman has a father and a brother. In the absence of her father, though the representative of her father who was deputized in marriage and other affairs was present, she brought witnesses and changed her name and the name of her father and claimed that she had been divorced by an ex-husband who then wanted to marry her again. She, further, brought a stranger and claimed that he was her brother. After the witnesses make their testimony, the whole matter was disclosed.