Fatwa: # 42292
Category: Divorce (Talaaq)
Country:
Date: 2nd May 2019

Title

khalwatul sahiyya

Question

As salaam

My husband gave me 3 talaaqs 20 years ago out of anger. He then went to seek advise how to get back together. He found a moulana that told him there is a way. We must find someone that is willing to marry me and i must spend 1 hour with him whether consumation is done or not but it must stay between us. He said its called khalwatul sahiyya. We then performed nikah and mehr was paid. We spent an hour together without consumating then he gave me 3 talaaqs. He just uttered it 3 times no witnesses. I sat 3 months iddat then me and my first husband made nikah again. We are together 15 years now after halala took place and have 5 kids. Mufti I am Allah fearin and dont want to go to Jahannam. Is our marriage valid and are we halaal for each other?

Shukran

Answer

In the Name of Allaah, the Most Gracious, the Most Merciful.

As-salaamu ‘alaykum wa-rahmatullaahi wa-barakaatuh.

Sister in Islaam,

In principle, halaalah is that after her ‘iddah, the now ex-wife marries another man and consummates the marriage with him. If the second husband passes away or divorces her, then after her ‘iddah from the second husband, she may marry the first husband. Consummation, i.e. penetration is a requisite for the validity of halaalah. If penetration does not take place, halaalah will not be valid irrespective of how long one remains in khalwah saheehah with the second husband[1].

In the enquired situation, the Mawlaana in reference was incorrect in his ruling. Your marriage was invalid. You have been living in a haraam relationship for the last 15 years. We advise you to terminate your relationship with him immediately. Make tawbah and istighfaar for the grave sin in reference.

And Allaah Ta’aala Knows Best.

Muajul I. Chowdhury

Student, Darul Iftaa

Astoria, New York, USA

Checked and Approved by,

Mufti Ebrahim Desai.

___________


[1] الأصل للشيباني (4/ 392)

فلا تحل له حتى تنكح زوجا غيره ويدخل بها.

 

بدائع الصنائع في ترتيب الشرائع (7/ 373)

ومنها الدخول من الزوج الثاني ، فلا تحل لزوجها الأول بالنكاح الثاني حتى يدخل بها ، وهذا قول عامة العلماء ...... وأما الإنزال فليس بشرط للإحلال ؛ لأن الله تعالى جعل الجماع غاية الحرمة ، ، والجماع في الفرج هو التقاء الختانين فإذا وجد فقد انتهت الحرمة ، وسواء كان الزوج الثاني بالغا أو صبيا يجامع فجامعها أو مجنونا فجامعها

 

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