"If she stipulated the divorce of her co-wife, or that he not take a concubine or marry another woman over her"
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The Shaykh : The author began with the valid, saying "If he stipulated the divorce of his co-wife", meaning it is a valid condition. That is, he proposed to a group of women, and they said, "We will not marry you to us unless you divorce your wife." The author says that this is a valid condition. Why? Because it serves a purpose intended by the wife, as it is more desirable for her that her husband be exclusively hers than that there be another woman with him, is it not?
The questioner : Yes.
The Shaykh : This is an intended purpose, and most women have a great deal of jealousy. However, the correct view is that this condition is defective and void, because the Prophet (peace and blessings be upon him) prohibited it, sayingSahih al-Bukhari 2140 or words to that effect. It is known that what the Shari'ah has prohibited is not permissible to approve, and validating the condition is an approval of it. It is established from the Prophet (peace and blessings be upon him) that he said Sunan Ibn Majah 2521Sahih (Darussalam). So the correct statement is that this condition is what? Defective and not valid. If he married her on this condition, that he would divorce his first wife, and then he entered into marital relations with her and kept the first wife, she has no right to demand that he divorce her. Why, Adam?
The questioner : Because it is a defective condition.
The Shaykh : Because it is a defective, invalid condition, as if it had never existed. The second is if she stipulated that he not take a concubine or that he not marry another woman over her. She said at the contract, "On the condition that you do not take a concubine and do not marry another." The difference between taking a concubine and marrying is that taking a concubine is with a slave woman, and marrying is with a non-slave woman. So this woman has great jealousy and wants him not to have intercourse with his slave women; she has many slave women, so she said, "On the condition that you do not take a concubine from any of them." Yes, is this condition valid or not? This condition is valid because it does not encroach upon anyone; it only involves a right of the husband that he has waived, and it does not involve aggression against anyone. Not marrying another is also valid. They married him on the condition that he not marry another over her, and he said, "Yes, this condition is for you." So it is not permissible for him to marry, because it is conditioned upon him that he not marry. If he marries, the woman has the right to annul the marriage. Now, if they said to him, "Swear that if you marry, she is divorced," and he said, "Yes, it is for you that I not marry, and if I marry, she is divorced," the condition not to marry is valid, but if he marries, is she divorced? No, she is not divorced, because it is a conditional divorce attached to something he does not own. Divorce does not occur except after marriage, and this man has not married so that he can divorce. For this reason, if a woman hears that her husband wants to marry, listen, Abdullah, to this: she hears that her husband is marrying and begins to annoy him. If he orders her to bring something, she says, "This thing did not happen for me." If he says, "Cook the food," she delays in cooking it. If he says, "Bring the coffee," she delays. Why, daughter? She says, "Because you want to marry." He says, "Do you want me to please you?" She says, "Yes." He says, "If I marry any woman, she is divorced." So when it became night, he contracted marriage with two women. Are they divorced or not?
The questioner : No.
The Shaykh : They are not divorced. Why? Because it is attached to the marriage, and it is not valid to attach divorce to the marriage, as the marriage must necessarily precede the divorce. Now.
The questioner : Yes.
The Shaykh : This is an intended purpose, and most women have a great deal of jealousy. However, the correct view is that this condition is defective and void, because the Prophet (peace and blessings be upon him) prohibited it, saying
and a woman should not try to cause some other woman to be divorced in order to take her place.
لا تسأل المرأة طلاق أختها لتكفأ ما في إناءهاEvery conditions that is not in the Book of Allah (SWT) is invalid, even if there are one hundred conditions
كل شرط ليس في كتاب الله فهو باطل وإن شُرِط مائة مرةThe questioner : Because it is a defective condition.
The Shaykh : Because it is a defective, invalid condition, as if it had never existed. The second is if she stipulated that he not take a concubine or that he not marry another woman over her. She said at the contract, "On the condition that you do not take a concubine and do not marry another." The difference between taking a concubine and marrying is that taking a concubine is with a slave woman, and marrying is with a non-slave woman. So this woman has great jealousy and wants him not to have intercourse with his slave women; she has many slave women, so she said, "On the condition that you do not take a concubine from any of them." Yes, is this condition valid or not? This condition is valid because it does not encroach upon anyone; it only involves a right of the husband that he has waived, and it does not involve aggression against anyone. Not marrying another is also valid. They married him on the condition that he not marry another over her, and he said, "Yes, this condition is for you." So it is not permissible for him to marry, because it is conditioned upon him that he not marry. If he marries, the woman has the right to annul the marriage. Now, if they said to him, "Swear that if you marry, she is divorced," and he said, "Yes, it is for you that I not marry, and if I marry, she is divorced," the condition not to marry is valid, but if he marries, is she divorced? No, she is not divorced, because it is a conditional divorce attached to something he does not own. Divorce does not occur except after marriage, and this man has not married so that he can divorce. For this reason, if a woman hears that her husband wants to marry, listen, Abdullah, to this: she hears that her husband is marrying and begins to annoy him. If he orders her to bring something, she says, "This thing did not happen for me." If he says, "Cook the food," she delays in cooking it. If he says, "Bring the coffee," she delays. Why, daughter? She says, "Because you want to marry." He says, "Do you want me to please you?" She says, "Yes." He says, "If I marry any woman, she is divorced." So when it became night, he contracted marriage with two women. Are they divorced or not?
The questioner : No.
The Shaykh : They are not divorced. Why? Because it is attached to the marriage, and it is not valid to attach divorce to the marriage, as the marriage must necessarily precede the divorce. Now.