He has a final question in which a man says he divorced his wife three times, then agreed with another man to marry her for a period of four or five months and then divorce her so that her first husband, who regretted divorcing her and desired to take her back, could do so.
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The questioner : He has a final question in which a man says he divorced his wife three times, then agreed with another man to marry her for a period of four or five months and then divorce her so that her first husband, who regretted divorcing her and desired to take her back, could do so. This actually happened, and the first husband took her back with a new contract. Is this marriage valid or invalid?
The Shaykh : This, may Allah protect us from it, is one of the forbidden stratagems by which a person seeks to make lawful what Allah has forbidden. It is known that making lawful what Allah has forbidden through stratagems only increases the severity of the matter, because it is deception of Allah and His Messenger and mockery of Allah’s ruling. Indeed, it is a form of mockery for Allah to forbid you something, and then you turn and twist until you reach that thing. Allah, Glorified and Exalted is He, knows the treachery of the eyes and what the breasts conceal, and your deception will not be hidden from Him.
The ruling in this case is that agreeing to this matter is forbidden. The Prophet (peace and blessings be upon him) cursed the one who performs the marriage to make her lawful (muhallil) and the one for whom it is done. The marriage of the muhallil is forbidden and invalid. Consequently, she does not become lawful for the first husband. Therefore, the first husband’s return to her with an invalid contract does not make her lawful for him. It is obligatory for him, meaning the first husband, to abandon her and separate from her. This is not a separation by divorce, because divorce does not take place unless the marriage is valid, and this marriage is not valid. Rather, it is a separation by final divorce (mubayinah), because she is not lawful for him until now. This marriage that was performed for the purpose of making her lawful is a marriage not intended for its own sake; it is a play with the rulings of Allah. We ask Allah for guidance for us and for our Muslim brothers.
The questioner : After this separation, if she marries another husband with the desire that he will divorce her so that the first husband can take her back?
The Shaykh : Yes, if she marries another husband with a valid marriage, there is no harm in the first husband taking her back.
The questioner : Suppose that offspring resulted from this forbidden cohabitation? Would his children be legitimate in the Shari'ah?
The Shaykh : If he thought that this action was permissible and that there was no harm in it, then his children would be his. This is because he is considered to have had intercourse with her under a doubt (shubhah), a doubt regarding the contract, since he thought that this contract was valid.
The questioner : Out of ignorance of the ruling?
The Shaykh : Yes, out of his ignorance of the ruling, his children would be his.
The questioner : Yes, may Allah reward you with the best reward.
The Shaykh : This, may Allah protect us from it, is one of the forbidden stratagems by which a person seeks to make lawful what Allah has forbidden. It is known that making lawful what Allah has forbidden through stratagems only increases the severity of the matter, because it is deception of Allah and His Messenger and mockery of Allah’s ruling. Indeed, it is a form of mockery for Allah to forbid you something, and then you turn and twist until you reach that thing. Allah, Glorified and Exalted is He, knows the treachery of the eyes and what the breasts conceal, and your deception will not be hidden from Him.
The ruling in this case is that agreeing to this matter is forbidden. The Prophet (peace and blessings be upon him) cursed the one who performs the marriage to make her lawful (muhallil) and the one for whom it is done. The marriage of the muhallil is forbidden and invalid. Consequently, she does not become lawful for the first husband. Therefore, the first husband’s return to her with an invalid contract does not make her lawful for him. It is obligatory for him, meaning the first husband, to abandon her and separate from her. This is not a separation by divorce, because divorce does not take place unless the marriage is valid, and this marriage is not valid. Rather, it is a separation by final divorce (mubayinah), because she is not lawful for him until now. This marriage that was performed for the purpose of making her lawful is a marriage not intended for its own sake; it is a play with the rulings of Allah. We ask Allah for guidance for us and for our Muslim brothers.
The questioner : After this separation, if she marries another husband with the desire that he will divorce her so that the first husband can take her back?
The Shaykh : Yes, if she marries another husband with a valid marriage, there is no harm in the first husband taking her back.
The questioner : Suppose that offspring resulted from this forbidden cohabitation? Would his children be legitimate in the Shari'ah?
The Shaykh : If he thought that this action was permissible and that there was no harm in it, then his children would be his. This is because he is considered to have had intercourse with her under a doubt (shubhah), a doubt regarding the contract, since he thought that this contract was valid.
The questioner : Out of ignorance of the ruling?
The Shaykh : Yes, out of his ignorance of the ruling, his children would be his.
The questioner : Yes, may Allah reward you with the best reward.