What is the ruling on the marriage of tahleel? And what is the operative cause of its prohibition?
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The Shaykh : The first issue: in the terminology of the Shari'ah, it is called the marriage of tahleel. Do you have an idea of what the marriage of tahleel is?
The questioner : The one who makes it permissible—without being held accountable—who they call the borrowed goat?
The Shaykh : Yes, do you have an idea?
The questioner: Yes.
The Shaykh : Okay, in our Syrian lands, they call it "tajhishah." And I think the image of this marriage, which is the marriage of tahleel, is clear in your mind, or should we explain it?
The questioner : Of course, it is clear.
The Shaykh : Okay, are you convinced that it is forbidden?
The questioner : Of course, that is settled.
The Shaykh : That is settled.
The questioner : What I know is that it is forbidden.
The Shaykh : Very good. Why is it forbidden? Here is the crux of the matter, as they say. Why is it forbidden? Because the purpose of this type of marriage is to make permissible what Allah has forbidden...
The questioner : Deception, meaning.
The Shaykh : Yes. What did Allah forbid? He said:[Al-Baqarah 2:230]
The questioner : A spouse.
The Shaykh : A spouse. Okay, Allah the Exalted, by His wisdom, made divorce in three stages. The first divorce: the wife does not become free from him; she remains in his custody until her waiting period ends. During this waiting period, he can take her back whether she wants to or not. The same applies to the second divorce. As for the third divorce, as soon as it occurs from him in the prescribed manner, here comes the aforementioned saying of Allah the Exalted:[Al-Baqarah 2:230] In the first divorce, it is permissible for him to take her back during the waiting period. In the second divorce, it is permissible for him to take her back during the waiting period. In the third divorce, he is done with her; she is not permissible for him until she marries another husband. Now, what does the tahleel man do? He agrees with him to marry this woman, spend the night with her, and have intercourse with her on the basis that he will divorce her so that she becomes permissible for her first husband. This second husband, in his marriage to this woman who has been divorced three times, is not like the first husband. The first husband, like all husbands, when a man marries a woman, hopes to live with her and spend his life in happiness, as Allah the Exalted said: [Ar-Rum 30:21] This second husband does not marry her to find tranquility in her, but to make her permissible for the first husband. Now, if this is the marriage of tahleel, and the Messenger (peace and blessings be upon him) forbade it with the strongest prohibition, because he made its punishment the harshest of punishments, which is the curse, he said (peace and blessings be upon him): Sunan Abi Dawud 2076Sahih (Al-Albani) And he called the tahleel man, as you know, the borrowed goat. If we look at the practical aspect of the marriage of tahleel, we find that in form, it is like the first husband's marriage. The first husband's marriage: what was it based on? First, the husband's proposal, the wife's consent, the guardian's consent, and two witnesses in the contract. The marriage of tahleel; these conditions are met, right?
The questioner: Yes.
The Shaykh : But the intention was different.
The questioner : The one who makes it permissible—without being held accountable—who they call the borrowed goat?
The Shaykh : Yes, do you have an idea?
The questioner: Yes.
The Shaykh : Okay, in our Syrian lands, they call it "tajhishah." And I think the image of this marriage, which is the marriage of tahleel, is clear in your mind, or should we explain it?
The questioner : Of course, it is clear.
The Shaykh : Okay, are you convinced that it is forbidden?
The questioner : Of course, that is settled.
The Shaykh : That is settled.
The questioner : What I know is that it is forbidden.
The Shaykh : Very good. Why is it forbidden? Here is the crux of the matter, as they say. Why is it forbidden? Because the purpose of this type of marriage is to make permissible what Allah has forbidden...
The questioner : Deception, meaning.
The Shaykh : Yes. What did Allah forbid? He said:
And 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 غيرهThe questioner : A spouse.
The Shaykh : A spouse. Okay, Allah the Exalted, by His wisdom, made divorce in three stages. The first divorce: the wife does not become free from him; she remains in his custody until her waiting period ends. During this waiting period, he can take her back whether she wants to or not. The same applies to the second divorce. As for the third divorce, as soon as it occurs from him in the prescribed manner, here comes the aforementioned saying of Allah the Exalted:
And 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
فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُHe created for you from yourselves mates that you may find tranquillity in them; and He placed between you affection and mercy
خَلَقَ لَكُمْ مِنْ أَنْفُسِكُمْ أَزْوَاجًا لِتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُمْ مَوَدَّةً وَرَحْمَةًNarrated 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 لهThe questioner: Yes.
The Shaykh : But the intention was different.
Source
www.al-albany.com
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