Part 24

A: If he had intercourse with her after giving birth, his intention and the reason for such an oath are to be taken into consideration. If he swore this oath: for a certain reason and now this reason is non-existent, no divorce is effected according to the most appropriate opinion held by scholars such as Imam Ahmed and others. If a man swore

When a man says to his wife: “You are thrice divorced” and he has the intention to make it pending, is divorce effected?

Q: A man got angry with his wife and he said to her: “You are thrice divorced”. She said: “now”, and he replied: “now”. He has the intention to make this divorce pending, is it effected?

If a man divorces his wife as a sort of joking, it is effected because he means to divorce her even if he does not intend to put it into effect. The man in question does not mean to divorce his wife and he was not joking as well. This case is just like a man who saw a woman and he said “you are divorced” believing that she is not his wife but it turned to be his wife. In this case also, no divorce is effected according to the most appropriate opinion held by scholars. Allah knows best.

Suraij Question Is the Suraij Question true?

Q: Is Suraij Question true? If it is not, what about a man who imitated him and acted accordingly? When he knew that it is not true, he repented and asked Allah for forgiveness. Does Allah forgive him?

A: All praise be to Allah, the Lord of the Worlds. This question is a sort of innovation in Islam. None of the Prophet’s Companions, their followers or the four Imams adopted it. Some later scholars adopted it, but most Muslim scholars denied it. If a person imitates another as far as this question is concerned and later he repented, Allah will forgive him. He should not divorce his wife even if he married her depending on the interpretation of this question. Allah knows best.

Is it permissible to make a marriage contract in which divorce is stipulated?

Q: A man married a woman and she gave birth to a child. The witnesses advised him that once he consummates marriage with her to say to her: If I divorce you, you are divorced. Is this contract permissible?

a girl and claimed that she belongs to the first husband. Is such claim true? Please be acknowledged that she and the first husband live in the same town and she did not demand for alimony or expenses for the girl.

A: All praise be to Allah. This girl does not belong to the first husband once she claimed so according to the unanimous agreement of Muslim scholars. Even if she gave birth to the girl when she is divorced and she claimed that the girl belongs to him but he denied so, her claim is not accepted unless she has proved it.

According to Abu Hanifah and one of Ahmed’s narraions, a woman is enough as a witness in this regard. According to Malik and the other narration of Ahmed, two women are required. ShafiI stipulates that there should be four women. As for the man, it is enough if he swore an oath denying that the child belongs to him.

If they are still married and live as man and wife, there are two opinions in Ahmed’s Juristic School. The first one is that her claim is not accepted according to Shafi*i’s opinion, while the second is that it is accepted according to Malik’s opinion. If her waiting period is over and most of her pregnancy period passed, and then she claimed that such fetus belongs to the first husband who divorced her, her claim is not accepted at all according to the unanimous agreement of Muslim scholars. If she said that her waiting period is over and she gave birth to a baby after six months of pregnancy or more, does the baby belong to the

There are two opinions held by scholars in this regard. Ahmed, Abu Hanifah, and Ibn Suraij believe that the child belongs to him. Shafi*i and Malik see that the child does not belong to him. This controversial point is applicable if she did not marry. Yet, if she married after her waiting period is over and then gave birth to a baby after more than six months of pregnancy, it does not belong to the first husband according to the unanimous agreement of Muslim scholars.

As the opinions of the four Juristic Schools are clarified, how comes that the girl belongs to the first husband after the lapse of six years? Even if she said that she had given birth to the girl before he divorced her, her claim is not accepted. His claim is accepted that she does not give birth to the girl during the conjugal period, and he should swear an oath on that. If she said that she gave birth to the girl before she got married to the second husband, while the first denied this, his denial is accepted especially that her claim was very late until she married the second husband. This indicates that she is a liar, in particular according to Malik’s juristic school as far as late inexcusable claims are concerned.

A man divorced his wife but a Mufti delivered him a fatwa that divorce is not effected. The man had intercourse with his wife and she gave birth to a child. Was the child born out of adultery?

itself was invalid and the wife gave birth to a baby out of such intercourse, the baby belongs to the husband and they inherit each other. The baby belongs to him because he believes that the marriage is contract is legal and that divorce is not effected because of a wrong fatwa or any other reason. This case is also applicable on invalid contracts according to the unanimous agreement of Muslim scholars. What about the controversial contract?

Even if a man had intercourse with a woman during an invalid marriage such as that made only for pleasure (Mut*ah), or a marriage held without a custodian and witnesses, but he believes it to be legal, the born child belongs to him.

Then what about a controversial marriage although it is proven to be legal according to the Holy Qur’an, the Prophet’s Sunnah and analogy?

When a woman gives birth to a baby just two months after the marriage contract although the

husband had not consummated marriage with her, is such marriage valid?

Q: A woman gave birth to a baby just two months after the marriage contract is made although the husband had not

consummated marriage with her, is such marriage valid? Is he entitled to pay an alimony?

A: All praise be to Allah. According to the unanimous

agreement of Muslims the baby does not belong to him and

he is not entitled to pay a dowry. Yet, scholars hold tow

opinions on the marriage contract:

1.The most appropriate opinion is that it is invalid according to the juristic schools of Malik and Ahmed as well as others. Therefore, marriage must come to an end without paying dowry, as is the case in any other invalid contract. It is rather better if a judge shouldered the responsibility of putting an end to such marriage as a sort of preventing any dispute.

2.The contract is valid but the husband should not consummate marriage until she gives birth. This is the opinion of Abu Hanifah, while Shafi~I believes that he can consummate marriage before giving birth.

If she is pregnant out of a controversial marriage or because the husband had intercourse with her and divorced her before consummating marriage, he should pay half the dowry. If the marriage is invalid according to the unanimous agreement of Muslims, as in this case, he is not entitled to pay dowry if he divorced her before consummating marriage. When a man is coerced to marry a pregnant woman out of adultery, the marriage contract is invalid according to Shafi~I and Ahmed as well as others. If he married her willingly, this is a controversial point among scholars.

Iddah (The Waiting Period)

Is a woman’s claim that she no longer menstruates accepted and she gets married according to it?

Q: A woman was divorced on the 28" of Rabi> Al-Awwal and she menstruated once until she was married to another on the 23” of Jumadah Al-Akhirah on the same year. She claimed that she menstruated three times. When the second husband knew that she menstruated only once, he divorced her on the 20" of Sha* ban on the same year. She wants to marry the second husband again and she claims that she no longer menstruates. Is her claim accepted? Is it legal to marry her?

A: A woman’s claim that she no longer menstruates is not accepted once she said so. If she said so, she is to be left for a year. If she does not menstruate during it, she could be married. If she reached an age where she no longer menstruates, she is not to be left for such year. If she no longer menstruates because of an illness or suckling a baby, she is still in her waiting period until such reason is non-existent.

This woman should have spent two ~Iddahs (waiting periods) for each of the two husbands. The second

marriage is invalid and hence it does not require that he divorce her. If she menstruated only once and blood ceased continuously, she must spend the two waiting periods after she leaves the second husband. The term of the two waiting periods is six months.

This case is applicable if she no longer menstruates. If she doubts whether she no longer menstruates or not, the waiting periods will be a year and three months. This opinion is based on some jurists’ belief that the two waiting periods do not interfere, such as Malik, Shafi” I and Ahmed. According to Abu Hanifah, they interfere but the waiting period of a woman who no longer menstruates is determined if she reached such age.