If a woman marries a man and intends tahlil without the new husband's knowledge, is the contract valid?
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Question : He says: If the scheme is from the woman, and the woman is the one who wanted to use tahlil to circumvent the prohibition, while the husband is unaware, is the marriage tahlil or not?
Answer : We say there is a principle in this: One who does not have the power of divorce in his hand, his intention has no effect. One who does not have the power of divorce in his hand, his intention has no effect. And the woman does not have the power of divorce in her hand, does she?
She does not have the power of divorce in her hand; the power of divorce is in the husband's hand, so her intention has no effect. This is the madhhab (school of jurisprudence). However, some scholars say: No, she does not become permissible for her first husband. The second husband's marriage is valid because he did not know. But if, hypothetically, the second husband disliked her and divorced her of his own free will, she does not become permissible for the first husband because she intended tahlil. The statement "One who does not have the power of divorce in his hand, his intention has no effect" is correct in that the woman does not have the power of divorce in her hand. But she can wear out her husband, yes, you are from the husband's side? Until he divorces her. Or if she is wealthy, she can tempt him with money, saying: "Come, you married her, and she is a mature woman of advanced age, and her mahr (bridal gift) was ten thousand riyals. I will give you one hundred thousand riyals, take a good virgin." Yes, she tempts him with money and he divorces her. And in reality, her intention has no effect. But she may tempt him with money until he divorces her. Or she may harm him. We emphasize this so you speak about income. She makes his life difficult until he divorces her.
By Allah, the stronger opinion is that I have given you the two positions. The madhhab is that one who does not have the power of divorce in his hand, his intention has no effect. But I hold that if she intended it, she may achieve what she wanted, is that not so? This resembles, in some respects, selling on the sale of a Muslim. Is it forbidden in the case of the option (khiyar) or even after the option? Yes, so our issue resembles it.
If the wife is the one who intended tahlil without the husband, we say the wife does not have the option in her hand and cannot pronounce divorce. But she may make life difficult for the husband until he divorces her.
Answer : We say there is a principle in this: One who does not have the power of divorce in his hand, his intention has no effect. One who does not have the power of divorce in his hand, his intention has no effect. And the woman does not have the power of divorce in her hand, does she?
She does not have the power of divorce in her hand; the power of divorce is in the husband's hand, so her intention has no effect. This is the madhhab (school of jurisprudence). However, some scholars say: No, she does not become permissible for her first husband. The second husband's marriage is valid because he did not know. But if, hypothetically, the second husband disliked her and divorced her of his own free will, she does not become permissible for the first husband because she intended tahlil. The statement "One who does not have the power of divorce in his hand, his intention has no effect" is correct in that the woman does not have the power of divorce in her hand. But she can wear out her husband, yes, you are from the husband's side? Until he divorces her. Or if she is wealthy, she can tempt him with money, saying: "Come, you married her, and she is a mature woman of advanced age, and her mahr (bridal gift) was ten thousand riyals. I will give you one hundred thousand riyals, take a good virgin." Yes, she tempts him with money and he divorces her. And in reality, her intention has no effect. But she may tempt him with money until he divorces her. Or she may harm him. We emphasize this so you speak about income. She makes his life difficult until he divorces her.
By Allah, the stronger opinion is that I have given you the two positions. The madhhab is that one who does not have the power of divorce in his hand, his intention has no effect. But I hold that if she intended it, she may achieve what she wanted, is that not so? This resembles, in some respects, selling on the sale of a Muslim. Is it forbidden in the case of the option (khiyar) or even after the option? Yes, so our issue resembles it.
If the wife is the one who intended tahlil without the husband, we say the wife does not have the option in her hand and cannot pronounce divorce. But she may make life difficult for the husband until he divorces her.
Source
قناة «فضيلة الشيخ محمد بن صالح العثيمين»، 3627 - 4600 هل إذا تزوجت المرأة من رجل ونوت التحليل دون علم الزوج الجديد هل العقد صحيح..؟ ابن عثيمين — youtube.com
The Arabic text is a machine transcription of the audio recording.
