"And if he marries her on the condition that whenever he makes her lawful for the first husband, he will divorce her, or if he intends this without a condition"
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The Shaykh : He said "And if he marries her on the condition that whenever he makes her lawful for the first husband, he will divorce her" This is also one of the defective conditions that invalidate the marriage, and it is called *nikah al-tahlil* (marriage for the purpose of making lawful). That is, if a man divorces his wife three times, she does not become lawful for him until what? She marries another husband, then he has intercourse with her, and then he separates from her by death, divorce, or annulment. So this man divorced his wife three times, and she does not become lawful for him until she marries, O Salman, until she marries another husband. Now, the first husband regretted it and his options were exhausted, so his friend said to him, "I will make her lawful for you." So he contracted the marriage with the condition that whenever he makes her lawful for the first husband, he will divorce her. He makes her lawful for the first husband when he has intercourse with her while his penis is erect, whether he ejaculates or not. So he married her on the condition that whenever he makes her lawful for the first husband, he will divorce her. They married her on this condition, so the marriage is invalid and does not hold. What invalidated it? This condition. So this condition was defective and invalidating. And what is the evidence that this condition is invalid? That the Prophet (peace and blessings be upon him) Jami` at-Tirmidhi 1119Da'if (Darussalam) and he named it as a condemnation of it, because this man, the husband, is like we borrowed him for that night to have intercourse with the woman and then divorce her, just as if the owner of the sheep said to his neighbor, "Lend me your ram for tonight, because I have females that need him," and he lent it to him for that night. So this man, the one making her lawful, deserves this name exactly: what is it?
The questioner : A borrowed ram.
The Shaykh : A borrowed ram. This is one point. And because the purpose of marriage is permanence, since a man does not marry a woman except intending for her to be the mother of his children and his companion in his bed, and Allah has placed affection and mercy between the husband and wife. Does this *tahlil* (making lawful) contain any of these purposes? Absolutely not. It contains none of these purposes. Therefore, it is contrary to the purpose of the Shari'ah marriage, the Shari'ah purpose in marriage. It became contrary to the Shari'ah purpose in marriage, so it is invalid. Now, this man performed the marriage with the intention of *tahlil* for the husband, yes, and then divorced her. Does she become lawful for the first husband?
The questioner : No.
The Shaykh : She does not become lawful for the first husband, because this is not a Shari'ah marriage, so it does not have the effect of a valid marriage. And on this basis, she does not become lawful for the first husband nor for the second. As for the second, because his contract with her is not valid. And as for the first, because she did not actually marry another husband, so she does not become lawful. Now, if the husband intended without a condition, intending that whenever he makes her lawful for the first husband, he will divorce her, without a condition, what do you say?
The questioner : It is not valid.
The Shaykh : It is not valid either. The marriage is invalid due to the saying of the Prophet (peace and blessings be upon him)Sahih al-Bukhari 1 Yes? He intended, he proposed to this woman whose husband had divorced her three times, and he did not tell them that he wanted to divorce her when he made her lawful for the first husband, but he intended in his heart. We say the intention is like the condition. The evidence is his saying (peace and blessings be upon him and his family) Sahih al-Bukhari 1 Now, if the wife or her guardian intended it, and the husband had no thought except that it was a marriage of desire and a marriage of permanence, but the wife intended in her heart that it was only for *tahlil*, yes, then the marriage is valid. And that is because the woman does not have the power of separation in her hand, and she does not have the authority to divorce herself, is that not so? For this reason, they said in this chapter: "Whoever does not have the power of separation in his hand, his intention has no effect" And the wife does not have the power of separation in her hand. Who has the power of separation? The husband. Now, if they deceived a person and said, "We want to give you ten thousand riyals and you marry this woman on the condition that if you make her lawful for the first husband, you divorce her," yes, but he did not commit to this condition, he remained silent, and then they married him. So when it was morning, they came to him saying, "Give us the divorce paper." Yes, is he allowed to say, "I swear to Allah, I did not intend it and did not condition it"? Yes? Is he allowed to say it? Now, and their intention?
The questioner : ... .
The Shaykh : It has no effect, because whoever does not have the power of separation in his hand, his intention has no effect. So he says, "Praise be to Allah, a woman came to me and a mahr (dowry) without anything." Yes. Now, we also said that if she or her guardian intended that whenever he makes her lawful, he will divorce her, then that has no effect. And some scholars said that it has an effect, but this opinion is weak, because the one who has the power of divorce is the husband. Yes, if we said it has an effect with regard to her, and that she sins by it, but the contract appears valid and cannot be invalidated, but she would be sinful. If this were said, it would have a basis. But with that, know that if this is her intention, she will try with all her ability to separate from the husband and get rid of him—pay attention—she will be reluctant to give him his rights and will resist. And when it is time for the nap, she will go out to the neighbors. Yes, and in the night she will stay up and not come to the bed except like a rag, not moving forward or backward, and the husband will not enjoy her. And here he will get tired of her, or else...? He will get tired of her, unless he is stubborn, in which case he might keep her, but according to nature, he does not want her to remain his wife like this, so he will divorce her. So if he did and divorced her, does she become lawful for the first husband?
The questioner : Yes.
The Shaykh : No, she does not become lawful considering her intention, because we told you a little while ago that we consider her intention with regard to her, that the marriage is not valid. But with regard to the husband and the apparent situation, the marriage is valid. So in this case, if the husband divorced her because of her bad conduct and her being difficult with the husband, we say that you do not become lawful for the first husband. And this is clear, and it is what should be acted upon in order to prevent women from having defective intentions. Now.
Jabir bin Abdullah and Ali narrated: "The Messenger of Allah cursed the Muhill and the one the Muhallal was done for."
لعن المحلِّل والمحلَّل لهthe borrowed he-goat
التيس المستعارThe questioner : A borrowed ram.
The Shaykh : A borrowed ram. This is one point. And because the purpose of marriage is permanence, since a man does not marry a woman except intending for her to be the mother of his children and his companion in his bed, and Allah has placed affection and mercy between the husband and wife. Does this *tahlil* (making lawful) contain any of these purposes? Absolutely not. It contains none of these purposes. Therefore, it is contrary to the purpose of the Shari'ah marriage, the Shari'ah purpose in marriage. It became contrary to the Shari'ah purpose in marriage, so it is invalid. Now, this man performed the marriage with the intention of *tahlil* for the husband, yes, and then divorced her. Does she become lawful for the first husband?
The questioner : No.
The Shaykh : She does not become lawful for the first husband, because this is not a Shari'ah marriage, so it does not have the effect of a valid marriage. And on this basis, she does not become lawful for the first husband nor for the second. As for the second, because his contract with her is not valid. And as for the first, because she did not actually marry another husband, so she does not become lawful. Now, if the husband intended without a condition, intending that whenever he makes her lawful for the first husband, he will divorce her, without a condition, what do you say?
The questioner : It is not valid.
The Shaykh : It is not valid either. The marriage is invalid due to the saying of the Prophet (peace and blessings be upon him)
The reward of deeds depends upon the intentions and every person will get the reward according to what he has intended.
إنما الأعمال بالنيات وإنما لكل امرء ما نوىThe reward of deeds depends upon the intentions and every person will get the reward according to what he has intended.
إنما الأعمال بالنيات وإنما لكل امرئ ما نوىThe questioner : ... .
The Shaykh : It has no effect, because whoever does not have the power of separation in his hand, his intention has no effect. So he says, "Praise be to Allah, a woman came to me and a mahr (dowry) without anything." Yes. Now, we also said that if she or her guardian intended that whenever he makes her lawful, he will divorce her, then that has no effect. And some scholars said that it has an effect, but this opinion is weak, because the one who has the power of divorce is the husband. Yes, if we said it has an effect with regard to her, and that she sins by it, but the contract appears valid and cannot be invalidated, but she would be sinful. If this were said, it would have a basis. But with that, know that if this is her intention, she will try with all her ability to separate from the husband and get rid of him—pay attention—she will be reluctant to give him his rights and will resist. And when it is time for the nap, she will go out to the neighbors. Yes, and in the night she will stay up and not come to the bed except like a rag, not moving forward or backward, and the husband will not enjoy her. And here he will get tired of her, or else...? He will get tired of her, unless he is stubborn, in which case he might keep her, but according to nature, he does not want her to remain his wife like this, so he will divorce her. So if he did and divorced her, does she become lawful for the first husband?
The questioner : Yes.
The Shaykh : No, she does not become lawful considering her intention, because we told you a little while ago that we consider her intention with regard to her, that the marriage is not valid. But with regard to the husband and the apparent situation, the marriage is valid. So in this case, if the husband divorced her because of her bad conduct and her being difficult with the husband, we say that you do not become lawful for the first husband. And this is clear, and it is what should be acted upon in order to prevent women from having defective intentions. Now.