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Separated From Husband in Doubtful Marriage

 
Question:

Assalamualaikum. I married a person without the consent of my parents. Then I came to know that the man may have touched my mother with lust before our marriage. I asked several scholars about the validity of our marriage. Most of them declared that the marriage was invalid. As I was not sure of the marriage being halal, I decided to ask for a divorce. But that man denied to give me a divorce. I remained separate from him for 6 months. Then I issued him a divorce though he did not give me the dowry during or after my marriage. As I am not sure if my marriage was halal or not, is it necessary for me to perform the iddah period. we had no children. And can I perform istikhara for another marriage during the iddah period?

Answer:

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.

Whether your marriage to this man is lawful or forbidden, because of the reason mentioned in the question (touched your mother with lust), is an issue of difference of opinion among the scholars and the majority of them are of the view that it is not prohibited. For more benefit, please refer to Fatwa 320245.

You should also know that divorce does not take place unless it is issued by the husband, who is an adult person and who issues it willingly without being forced (to do so). Another case which makes divorce take place, is when a Muslim judge issues it, as there are some cases where the judge can issue divorce. As regards the judgment of a non-Muslim judge on divorce, then it is not effective (i.e., divorce does not take place). For more benefit, please refer to Fatwa 317698.

Therefore, if your husband did not divorce you and a Muslim judge –or someone who may act on his behalf in his absence, like the scholars in an Islamic Center– did not issue divorce, then in this case divorce did not take place and you are still in bond of marriage with your husband.

However, if your husband did divorce you or a Muslim judge or a scholar in an Islamic Center issued a divorce for you, and your husband had consummated the marriage with you or had been in seclusion with you after the contract –a seclusion which allows sexual intercourse to happen– then, in this case, you (are divorced and) must observe a waiting period from the time divorce was issued by your husband, or from the time a final judgment (of divorce) was issued by the judge; in this case, you deserve a full dowry.

There is no objection to performing the Istikhaarah prayer about the matter of marriage during your waiting period from an irrevocable divorce or a divorce which does not allow the husband to take back to his wife except with a new contract (like the case of a divorce in return for money given to the husband, or Khul’ requested by the wife), but no one should explicitly propose to you before the expiry of your waiting period.

Nevertheless, if divorce took place before your husband had consummated the marriage with you, and there was no valid seclusion between you and him [in which intercourse could have taken place], then you do not have to observe a waiting period.

For more benefit, please refer to Fataawa 269356, 92758, 286345, and 83629.

Regarding the issue of marriage without a Wali, please refer to Fatwa 269080.

Allah knows best.

 

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