Rescue From The Potential Injustice Of Free Marriage Contracts
By Shaykh Muhammad Afifi al-Akiti

"Inqadh al-jawr min ibahat al-`uqud bi-ijabat al-qasm"

"Rescue from the Potential Injustice of Free Marriage Contracts with the Spoken Offer of Equitable Share"; August 6, 2007

1. Is her husband’s secretive/underhand action sanctioned by Sharia despite the dispensation that a man may contract a second, third or fourth marriage?

2. Is her marriage annulled automatically by her husband’s act?

3. She being unsure of whether there is a nikah nama in existence for her own marriage does she have a leg to stand on to seek a divorce?

4. Can a nikah nama be obtained retrospectively and if so can she initiate the process?

5. Without seeking a divorce is she within her rights to ask him to leave his first marital home?

"Bismillahi al-Rahman al-Rahim. AlHamdulillAhi waHdahu alladhI staHabba l-iqtiSAra ‘alA wAHidatin idhA khIfa mina l-jawri ‘alA l-zawjAti wa l-salAtu wa l-salAmu ‘alA rasUlihi muHammadin alladhI huwa aHsanu l-zawji fI l-taHSIli li-maSAliHi l-nikAHi wa l-mu’Asharati ‘alayhinna bi l-ma’rUfi wa fI l-ta’lImi bi-mufAraqatihinna bi-ma’rufin wa-’alA Alihi l-TayyibIna wa l-mas’UdIna wa-mani ttaba’a l-’ArifIna billAhi wa-amrahu wAjiban aw mustaHabban!

For sad cases such as this, it is best for the first wife to consult her local Qadi or a Shariah Court lawyer in order to see her options. This is because if she is in Malaysia, for example, she will have to eventually refer to a Shariah Court in order to seek redress, and each state might have different enactments that govern her particular case. Unfortunately, I am not up to date with the present Shariah enactments, so my general answers below might be contradicted by what the relevant local authority has enacted (such as on the most basic question of obtaining consent from the first wife: it has been made a requirement in some states).

In Shafi’i fiqh, it is technically possible for the husband to contract a further marriage without knowledge of the first wife—even if the act is disliked. Unlike in the contrary legal opinion, the second contract is considered valid, even if there was an original stipulation to obtain consent from the first wife. For in that case, although the marriage is valid, that limiting stipulation becomes void [SaHHa l-nikAHu wa-laghA l-sharTu], as this is considered within the husband’s right [masalih al-rijal]. With this right comes responsibility. Contracting a second or third or fourth marriage is a grave responsibility for which the husband will be held to account in the Next World. Through unintended consequences, this can definitely turn into trouble and bala’ for him, not least because of the obligation [Wajib] of Qasm [sharing the bed, so to speak, and so on] will commence following the Divine stipulation to treat all of the spouses equitably [wujub al-taswiya]* , failing which will result in negligence and being in ma’siya [Tuhfat al-Tullab, 103]—but especially if unlike in the Prophetic example, the wives do not know each other.

*Note: The purview of wujub al-taswiya covers only the material and physical welfare [al-madda min nafaqatin wa-mabitin] and it does not include matters governing the heart [mayl qalbi] as that is considered to be beyond human capacity.) It may be that from a contractual standpoint the husband does not require consent from anyone but himself—and that is his right—but once he marries another, the consent of the first wife is required—and that is now her right—as in the case if he wishes her to give up her share of the bed, so to speak, or any other of her material and physical welfare. Even if the minimum rule for the ‘Aqd does not have to be consensual—and is only disliked—the hukm for the Qasm certainly requires consent. For this reason, we are able formulate tersely the following Dabit:

al-’aqdu lA yaHtAju ilA l-riDA wa l-qasmu qtaDA ilayhi

[The ‘Aqd may not require consent but the Qasm certainly demands it.]

So in effect, the notion that the Shafi’i School allows polygynous marriage in secret is an urban myth, as in reality this becomes something impractical [ta’assur al-’amal] for the husband. The best husband and the paragon of polygamy (may Allah’s peace and blessings be upon him!) said:

idhA kAna ‘inda l-rajuli mra’atAni fa-lam ya’dil baynahumA jA’a yawma l-qiyAmati wa-shaqquhu sAqiTun

This is why the nasiha of the right-minded scholars—and the ‘Arifin in particular—is always against taking another wife when there is no good reason to do so (a good traditional reason being infertility, for example), following the Divine commandment to limit [iqtisar] marrying only one wife—if one fears oppressing [jawr] any one of the wives:

wa-in khiftum allA ta’dilU fa-wAHidatan aw mA malakat aymAnukm dhAlika adnA allA ta’UlU

{But if you fear you cannot be equitable (to them), then marry only one or what your right hand possess: that is more likely to make you not to oppress.} (al-Nisa’, 4:3).

No mahkama on this Dunya can truly right the wrongs, but only Allah knows truly when we have wronged an individual, so that the good works of the oppressor [zalim] will be exchanged with the bad deeds of the oppressed [mazlum] in the Akhira.

No, not automatically with the default ruling [al-asl] in the Shaf’i School. Unless the state and/or authority [Imam] enacts such an intervention, then it may not be an automatic process. If the authority provides for such an intervention, then a separation of the marriage [Tafriq] may automatically be effected through the Qadi and/or the Court. If there is no such intervention, then three options are available to the first wife:
(1) ask the husband to divorce her [Talaq];
(2) effect the divorce by payment [Khul’]; or
(3) seek redress from the authority (i.e., the Qadi/Court) by applying for a separation on account of irreconcilability [al-tafriq fi hal al-shiqaq]. In case the husband has shown a reckless disregard for the mandatory rules of Qasm with respect to ensuring fairness in the conduct of polygyny relations and compliance in them, any of the wives has a right to seek intervention through the Courts IF she decides to initiate the process. The Qadi will have to find that the conduct of her husband has harmed the interests of the marriage, i.e., idrar maqasid al-nikah, which in this particular case, is idrar al-mu’ashara, i.e., violating his wife’s rights by his neglecting of the mandatory rules of Qasm.

Tanbih: If the second wife had asked the husband before his second ‘aqd whether he is already married and he denies the first marriage, then the second wife has an automatic cause to annul the marriage [Faskh; in Malay: fasakh] through the Courts (if she wishes to exercise this right), as the conduct of her husband falls under one of the 17 standard cases for Faskh listed by the Shaykh al-Islam: deception [ghurur] (one that is the proximate cause to actually harming the interests of the marriage itself—for serious students of fiqh, ponder over this circularity [dawr], and you will see the source of the troubles in both marriages: the mahall al-faskh as well as the mahall al-shiqaq(!) ]—may Allah save us from such fitna and bala’!).

Having presented all these options, however, remember, too, dear sister, the golden advice of the Hujjat al-Islam when deliberating about this grave matter: "Love whom you want, for you will be separated from him anyway!" This episode teaches us the importance for all prospective partners concerned to have knowledge of their respective responsibilities before engaging with one another. (Think before you drive!)

I understand "nikah nama" here as the ‘aqd al-nikah. Even if the original ‘aqd is lost (or if the ‘aqd was originally contracted orally but not put in writing), she will obviously have the same right to get a separation by seeking redress from the Qadi/Court.

Without a written contract, it may complicate matters and delay the process, since the Qadi has to ascertain all the facts, etc. (which is a lesson and a reminder for us all to fulfill the Sunna of writing things down and recording the ‘aqd for posterity). This is because, not having a written ‘aqd is not a legal impediment [mani’] to the right of seeking intervention from the authority which is covered by the following dabit:

‘adamu l-’aqdi l-maktUbi laysa mAni’an fI Talabi l-Haqqi

[The absence of a written contract is not an impediment to seeking one’s right].

4. Can a nikah nama be obtained retrospectively and if so can she initiate the process? She shouldn’t have to worry about the ‘aqd as this is a matter for the Qadi/Court, who will have to ascertain the case by interviewing the husband and any relevant persons and so on. Each case will be unique and the length of this process depends entirely on the competency of the Qadi and so on and so forth.

5. Without seeking a divorce is she within her rights to ask him to leave his first marital home?" Not without an effective divorce. Once the process of talab al-tafriq is initiated, it will depend on the individual case, and on the state, and on the intervening decision(s) of the Qadi.
In most cases, the Qadi will in the first instance move for reconciliation (i.e., the sunna of "We Can Work It Out"!), which will mean that she will not have the right to exclude him in the short term. If separation is finally effected or an injunction against the husband is ordered, and the house is granted to the first wife, then she obviously has the right to do so even with the power of arrest. May we seek help by having patience and through performing our prayers.

May this be of benefit.

From the one seeking forgiveness for his many sins and for being negligent,

Muhammad Afifi al-Akiti

Oxford


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