Status of Nikah ,Halala and Masyar (Follow Up)
Question:
Thanks for your reply, i would like share some confusions in reply.
1. As for my question about halala, if planned marriage for a night like mu’ah is harram then how the woman (who has married a man only to be divorced and get halal for her first husband) is legally halal for her first husband?
Don’t you think this is the common answer due to which this phenomenon has become common in our society? People think this is legally valid way to go back to her first wife by passing through a temporary paid process.
2. As for my question about Misyar, how it can be accepted in society that this marriage is done only for sexual purpose? Don’t you think that it will break the social system of society? Also it gives no protection to woman, a man who comes to her house only for sex can leave her any time. How a marital relationship that exists between wife and husband (except sexual relationship) will be developed here?
Answer:
Before answering your questions let me remind myself and the readers what it is that we are talking about:
In your original question you raised the following case:
“One man(A) divorced his wife(W) and his wife married with someone by paying some money for a night and got divorced in order to marry her first husband (A),is it halala? is this woman(W) is halal for her first husband (A).if not what will be the status of kids born after halala?”
In answering the above I wrote:
“in the case that you have mentioned, the woman has done something that is against the spirit of the law. Due to this she has done something wrong and needs to repent. She should be determined that never again she will play with the law of religion. However from legal point of view the woman is halal to her first husband.”
Basically what I am implying here is that there is a difference between doing something that is against the spirit of the law and doing something illegal. Doing something against the spirit of law is immoral and the person should repent from it however it does not void the rights that the law brings to that person. This is also the view of Imam Abu Hanifa as explained in Al-Rad al-Muhtar by ibn Abedin (3:415).
I think I need to further explain what it means when we say something is legal but is against the spirit of religion. Any legal contract has some legal consequences (like the right of a woman to receive inheritance from her deceased husband). When we say something is legal but against the spirit of Islam it means that while the legal consequences of the action are still applicable, the person has committed an immoral act which can make him/her punishable by the Almighty. In the case that you mentioned, what I wrote means that we cannot say that the woman has committed Zina (fornication) by going back to her first husband, and that any children born after the remarriage is the product of Zina. At the same time, the woman, and the man who agreed to marry and divorce her, have done something gravely immoral. What they have done can bring them God’s punishment unless they truly repent.
You wrote:
“Don’t you think this is the common answer due to which this phenomenon has become common in our society?”
Yes I do think that what you wrote may be the case. However please understand that as a student of Islam I can only answer questions based on my understanding of Shari’ah. I cannot change my answer only due to the possibility that people may misuse it. I did write: “she has done something wrong and needs to repent. She should be determined that never again she will play with the law of religion.” If a person decides to ignore this part of my answer then I don’t think anyone but him/herself should be blamed.
I think it is the responsibility of the state (court) to put measures to make sure such misuse of law in Islam will not happen, just as the prophet (pbuh) as the head of the state prevented this in a case that is reported. Note that even in that case the woman had not yet remarried her first husband.
As for your comparison of the planned marriage with Mut’ah, I do not agree that they are the same. There is a fundamental difference between Mut’ah and a marriage with planned divorce. In Mut’ah the temporary nature of the relationship is part of the contract. Such contract is illegal and against the law of Islam as far as I understand it. However in a marriage with planned divorce, the nature of the relationship is still a permanent one, however the couple agree beforehand to cancel this contract later. This, as I wrote, will be misusing a legal procedure and is against the general spirit of marriage, as defined and advised by Islam, but it cannot be labelled as 'illegal'.
2. Your second question is on your concerns about the specific way of marriage that is sometimes referred to as Misyar, where woman stays in her parent’s house and the husband only visits here there:
I do agree that one of the main objectives of marriage in Islam is to make families. However I am not aware of any restrictions in the Shari’ah that says if a man and woman marry only for sexual purposes then this marriage is void. As long as the marriage fulfils the main conditions of a marriage contract in Islam then we are not in any position to announce it illegal. As I explained in my original answer, these conditions are ‘the consent of the two parties to enter a permanent contract to stay as husband and wife, unless cancelled by divorce, and to make this known openly’.
You wrote:
“Also it gives no protection to woman, a man who comes to her house only for sex can leave her any time.”
You can say the same for the normal marriage as well where woman stays in the house of her husband. From purely legal perspective, a husband may divorce her wife whenever he wants and for any reason. Again, in doing so he may commit something totally immoral that brings punishment of God to him, but from the perspective of Shari’ah (religious law) he has not done anything illegal.
You referred to the effect of this kind of marriage in the social system of the society. I have already explained what I think are the pros and cons of this kind of marriage in my original answer. Again, as a student of Islam, I cannot change the law based on its effect on society, I can only explain the law as I understand it. Like the previous case, it will be the responsibility of the state to put measures to make sure people will not go to extremes in this and that the society remains unharmed.
----------------
Related Topic:
- Status of Nikah, Halala, Misyar
-----------------
Farhad Shafti
October 2013
Thanks for your reply, i would like share some confusions in reply.
1. As for my question about halala, if planned marriage for a night like mu’ah is harram then how the woman (who has married a man only to be divorced and get halal for her first husband) is legally halal for her first husband?
Don’t you think this is the common answer due to which this phenomenon has become common in our society? People think this is legally valid way to go back to her first wife by passing through a temporary paid process.
2. As for my question about Misyar, how it can be accepted in society that this marriage is done only for sexual purpose? Don’t you think that it will break the social system of society? Also it gives no protection to woman, a man who comes to her house only for sex can leave her any time. How a marital relationship that exists between wife and husband (except sexual relationship) will be developed here?
Answer:
Before answering your questions let me remind myself and the readers what it is that we are talking about:
In your original question you raised the following case:
“One man(A) divorced his wife(W) and his wife married with someone by paying some money for a night and got divorced in order to marry her first husband (A),is it halala? is this woman(W) is halal for her first husband (A).if not what will be the status of kids born after halala?”
In answering the above I wrote:
“in the case that you have mentioned, the woman has done something that is against the spirit of the law. Due to this she has done something wrong and needs to repent. She should be determined that never again she will play with the law of religion. However from legal point of view the woman is halal to her first husband.”
Basically what I am implying here is that there is a difference between doing something that is against the spirit of the law and doing something illegal. Doing something against the spirit of law is immoral and the person should repent from it however it does not void the rights that the law brings to that person. This is also the view of Imam Abu Hanifa as explained in Al-Rad al-Muhtar by ibn Abedin (3:415).
I think I need to further explain what it means when we say something is legal but is against the spirit of religion. Any legal contract has some legal consequences (like the right of a woman to receive inheritance from her deceased husband). When we say something is legal but against the spirit of Islam it means that while the legal consequences of the action are still applicable, the person has committed an immoral act which can make him/her punishable by the Almighty. In the case that you mentioned, what I wrote means that we cannot say that the woman has committed Zina (fornication) by going back to her first husband, and that any children born after the remarriage is the product of Zina. At the same time, the woman, and the man who agreed to marry and divorce her, have done something gravely immoral. What they have done can bring them God’s punishment unless they truly repent.
You wrote:
“Don’t you think this is the common answer due to which this phenomenon has become common in our society?”
Yes I do think that what you wrote may be the case. However please understand that as a student of Islam I can only answer questions based on my understanding of Shari’ah. I cannot change my answer only due to the possibility that people may misuse it. I did write: “she has done something wrong and needs to repent. She should be determined that never again she will play with the law of religion.” If a person decides to ignore this part of my answer then I don’t think anyone but him/herself should be blamed.
I think it is the responsibility of the state (court) to put measures to make sure such misuse of law in Islam will not happen, just as the prophet (pbuh) as the head of the state prevented this in a case that is reported. Note that even in that case the woman had not yet remarried her first husband.
As for your comparison of the planned marriage with Mut’ah, I do not agree that they are the same. There is a fundamental difference between Mut’ah and a marriage with planned divorce. In Mut’ah the temporary nature of the relationship is part of the contract. Such contract is illegal and against the law of Islam as far as I understand it. However in a marriage with planned divorce, the nature of the relationship is still a permanent one, however the couple agree beforehand to cancel this contract later. This, as I wrote, will be misusing a legal procedure and is against the general spirit of marriage, as defined and advised by Islam, but it cannot be labelled as 'illegal'.
2. Your second question is on your concerns about the specific way of marriage that is sometimes referred to as Misyar, where woman stays in her parent’s house and the husband only visits here there:
I do agree that one of the main objectives of marriage in Islam is to make families. However I am not aware of any restrictions in the Shari’ah that says if a man and woman marry only for sexual purposes then this marriage is void. As long as the marriage fulfils the main conditions of a marriage contract in Islam then we are not in any position to announce it illegal. As I explained in my original answer, these conditions are ‘the consent of the two parties to enter a permanent contract to stay as husband and wife, unless cancelled by divorce, and to make this known openly’.
You wrote:
“Also it gives no protection to woman, a man who comes to her house only for sex can leave her any time.”
You can say the same for the normal marriage as well where woman stays in the house of her husband. From purely legal perspective, a husband may divorce her wife whenever he wants and for any reason. Again, in doing so he may commit something totally immoral that brings punishment of God to him, but from the perspective of Shari’ah (religious law) he has not done anything illegal.
You referred to the effect of this kind of marriage in the social system of the society. I have already explained what I think are the pros and cons of this kind of marriage in my original answer. Again, as a student of Islam, I cannot change the law based on its effect on society, I can only explain the law as I understand it. Like the previous case, it will be the responsibility of the state to put measures to make sure people will not go to extremes in this and that the society remains unharmed.
----------------
Related Topic:
- Status of Nikah, Halala, Misyar
-----------------
Farhad Shafti
October 2013
