Concerning prohibiting the wife without intending the meaning of the utterance | The official website of Sheikh Muhammad Ali FERKUS
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Wednesday 16 Rabî` Al-'Awwal 1441 H - November 13, 2019 G

Fatwa n° 494

Category: Fatwas about Family – The End of Marriage Contract –Divorce

Concerning prohibiting the wife without
intending the meaning of the utterance

Question:

I established the legal marriage contract with a woman, accordingly I used to meet her in private and touch her without reaching the sexual intercourse. Afterwards, there were disputes between us, so I said to her: “You are prohibited for me” and I did not know that it is considered as Dhihâr(1). And after a given period, I divorced her by saying to her: “You are divorced, divorced, divorced!” So, what is incumbent upon me? And may Allah bless you.

Answer:

All praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon whom Allah sent as a mercy to the Worlds, upon his Family, his Companions and his Brothers until the Day of Resurrection:

If he meant, by using the word “prohibited”, the divorce not the true meaning of the word [of prohibition], then it is considered as a divorce or a Dhihâr according to his intention:

- If he meant Adh-Dhihâr, he has to submit himself to the ruling of Dhihâr which is the prohibition of getting in intimacy (i.e. having sexual intercourse) with her until he expiates it by emancipating a slave; if not possible, then he has to observe the fasting of two consecutive months and if he cannot afford it, he has to feed sixty needy persons, according to His saying عزّ وجلّ:

﴿وَٱلَّذِينَ يُظَٰهِرُونَ مِن نِّسَآئِهِمۡ ثُمَّ يَعُودُونَ لِمَا قَالُواْ فَتَحۡرِيرُ رَقَبَةٖ مِّن قَبۡلِ أَن يَتَمَآسَّاۚ ذَٰلِكُمۡ تُوعَظُونَ بِهِۦۚ وَٱللَّهُ بِمَا تَعۡمَلُونَ خَبِيرٞ ٣ فَمَن لَّمۡ يَجِدۡ فَصِيَامُ شَهۡرَيۡنِ مُتَتَابِعَيۡنِ مِن قَبۡلِ أَن يَتَمَآسَّاۖ فَمَن لَّمۡ يَسۡتَطِعۡ فَإِطۡعَامُ سِتِّينَ مِسۡكِينٗاۚ ذَٰلِكَ لِتُؤۡمِنُواْ بِٱللَّهِ وَرَسُولِهِۦۚ وَتِلۡكَ حُدُودُ ٱللَّهِۗ وَلِلۡكَٰفِرِينَ عَذَابٌ أَلِيمٌ [المجادلة: 3-4.]

The meaning of the verse:

And those who make unlawful to them (their wives) by Dhihâr and wish to free themselves from what they uttered, (the penalty) in that case is the freeing of a slave before they touch each other. That is an admonition to you (so that you may not repeat such an ill thing). And Allah is All-Aware of what you do. And he who finds not (the money for freeing the slave) must fast two successive months before they both touch each other. And he who is unable to do so, should feed sixty poor. That is in order that you may have perfect faith in Allah and His Messenger. These are the limits set by Allah. And for the disbelievers, there is a painful torment﴿ [Al-Mujâdila: 3-4].

However, if he meant the divorce then it takes effect and his wife is separated from him and she merits the half of the dowry inasmuch as the divorce occurred before consummating his marriage with her, according to verse in which Allah عزّ وجلّ says:

﴿وَإِن طَلَّقۡتُمُوهُنَّ مِن قَبۡلِ أَن تَمَسُّوهُنَّ وَقَدۡ فَرَضۡتُمۡ لَهُنَّ فَرِيضَةٗ فَنِصۡفُ مَا فَرَضۡتُمۡ[البقرة: 237.[

The meaning of the verse:

And if you divorce them before you have touched (had a sexual relation with) them, and you have appointed onto them Al-Mahr (dowry), then pay half of that (Mahr)﴿ [Al-Baqara: 237].

The triple divorce with one pronouncement -after it- would be futile and take no effect because it did not coincide with its proper situation and because the woman has already been separated from him by the first pronouncement of divorce.

But if he meant Adh-Dhihâr, then the triple divorce before consummating the marriage means a divorce that separates him from his wife and she has the right to take the half of the dowry, and she is forbidden for him until he establishes a new marriage contract with her with a new dowry.

Furthermore, it is incumbent upon him to expiate his Dhihâr as mentioned previously. This ruling does not forbid being alone with her without having sexual intercourse, because the mere fact of being alone with her is not a sexual intercourse according to the opinion of Ibn ‘Abbâs رضي الله عنهما and others unlike the majority of the scholars.

The perfect knowledge belongs to Allah عزَّ وجلَّ; and our last prayer is all the praises and thanks are to Allah, the Lord of the Worlds, and prayers of Allah are to Muhammad and his Family, Companions and Brothers until the Day of Resurrection.

 

Algiers on: Jumâdâ Ath-Thâniya the 9th, 1427 H.

Corresponding to July the 4th, 2006 G.

 


(1) It means: considering the wife prohibited as a mother. Translator’s note