The Ruling on the Marriage of Tahleel and an Explanation of the Deception Involved Therein
Machine translationRead the Arabic original
The Shaykh : Another type, for example, of the legal stratagems they call such, and another type of what they know is not permissible, yet they still mix with it and engage in it. For example, the marriage known in fiqh books as the marriage of tahleel, and known among the common people in our region of Sham as "al-tatahishah". Despite the statement of the Messenger (peace and blessings be upon him) Sunan Abi Dawud 2076Sahih (Al-Albani), there are still today those who issue fatwas permitting this marriage, claiming that it is permissible for a man to marry a woman with the intention of divorcing her in the morning after building his house upon her, in order to make her lawful for her first husband. This is a permissible matter, even though the Messenger (peace be upon him) cursed him and cursed the one for whom this woman was made lawful. More than that, the Messenger (peace and blessings be upon him) named the one who performs tahleel . And what a terrible naming that is! Yet despite all this, we still see in fiqh books today that the marriage of tahleel is permissible. We do not deny that a scholar among the scholars of the Muslims may err, and he may be rewarded for that. But we deny, with total denial, that one who has been shown this error should persist in it, knowing that the Messenger (peace be upon him) cursed its doer. This marriage, the marriage of tahleel, is intended to circumvent the statement of Allah (Blessed and Exalted is He) [Al-Baqarah 2:230]. This borrowed he-goat comes and claims to be the husband, other than the first husband, to make this woman lawful for the first husband. We all know that the husband mentioned in the verse is the one intended in a verse like another: [Al-A'raf 7:189] [Ar-Rum 30:21]. This husband marries for great purposes: to chaste himself, to chaste his wife, and to increase his offspring, or the Ummah of Muhammad (peace and blessings be upon him). For that reason, the Messenger (peace and blessings be upon him) commanded marriage to women who are fertile and loving, saying (peace and blessings be upon him) .
The borrowed he-goat does not have any of these great meanings mentioned in the verse or in the hadith in his mind. Rather, all that is in his heart is circumventing the ruling of the Shari'ah, making lawful what Allah has forbidden by the slightest of stratagems.
This is an example, and there are many, many examples. Books have been written on this in some fiqh books under the chapter of "Open Stratagems" or "Legal Stratagems." The Messenger (peace and blessings be upon him), in mentioning the sale of 'inah, used it as an example for other transactions by which people circumvent what Allah has forbidden, such as the contract of the marriage of tahrim.
Narrated Ali ibn AbuTalib: (The narrator Isma'il said: I think ash-Sha'bi attributed this tradition to the Prophet) The Prophet (ﷺ) said: Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful.
لعن الله المحلل والمحلل لهas the borrowed he-goat
بالتيس المستعارAnd if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him
فإن طلقها فلا تحل له من بعد حتى تنكح زوجا غيرهand created from it its mate that he might dwell in security with her
وخلق منها زوجها ليسكن إليهاand He placed between you affection and mercy
وجعل بينكم مودة ورحمةMarry women who are fertile and loving, for I shall be shown pride in you before the nations on the Day of Resurrection
تزوجوا الولود والودود فإني مباه بكم الأمم يوم القيامةThe borrowed he-goat does not have any of these great meanings mentioned in the verse or in the hadith in his mind. Rather, all that is in his heart is circumventing the ruling of the Shari'ah, making lawful what Allah has forbidden by the slightest of stratagems.
This is an example, and there are many, many examples. Books have been written on this in some fiqh books under the chapter of "Open Stratagems" or "Legal Stratagems." The Messenger (peace and blessings be upon him), in mentioning the sale of 'inah, used it as an example for other transactions by which people circumvent what Allah has forbidden, such as the contract of the marriage of tahrim.