The ruling on one who married his brother's wife believing him to be dead, then it turned out he was alive
Machine translationRead the Arabic original
Question:
This is a question sent by (Abu 'Umar T. M. Sh.) from Iraq, Ninawa Governorate. He says: In our area, one of the young men was martyred, and his body came to his family disfigured and unrecognizable, but the address indicated the name of the martyr and his house. They buried him in the village cemetery. The martyr left behind a wife and children. After nine or ten months had passed since the young man's martyrdom, the wife's family came to the martyr's brother, asking him to marry their daughter, the martyr's wife. He refused to marry her. After a few days of this matter, they told him: If you do not marry her, we will marry her to someone else. The brother remained in a difficult position: either he would marry her and take care of his brother's orphans, or he would leave her to marry someone else. In any case, he married her without any desire to do so. After a year of marriage, she gave birth to a child for him.
After a few months, a message arrived from his brother, whom they had believed to be martyred. It said: I am still alive, and I am a prisoner in one of the enemy's prisons. He also gave instructions regarding his wife and children. His brother was struck by a great calamity because of his marriage to his brother, who is alive and well. When the prisoner returns to his country and family safely, will the second marriage be invalid, or do they have the right to remain in the marital home? If it is invalid, how does the first husband return to his wife if he has the right to take her back? Finally, what is the Shari'ah solution to this matter?
Answer:
This matter requires verification. As long as the martyr who came to them had signs indicating that he was the brother of the person in question, and that he was their killed one and their son, and he married her based on this, namely that his brother had been martyred, then there is no sin on him and no blame on him. But once it is established with certainty that his brother is in prison, he must separate from her at that time, and she remains the wife of his brother. If she wishes, she may take the matter to the Shari'ah judge to annul the marriage if she needs the annulment and separation due to his imprisonment and his inability to reach her. This is a matter that returns to the Shari'ah judge who looks into the case of this woman and her husband; because I fear that this writer may be lying, and he wanted to confuse the martyr's brother and claim to be so-and-so.
The presenter: Who wrote the message?
The Shaykh: The one who wrote the message is also feared to be a forger and a liar, so verification in matters is necessary. If they ask the officials in the Iraqi government, or send someone to look at the prisoners, or test the prisoners so that those who know him can recognize him after verifying this, then at that time his new husband—his brother—separates from her, and she remains in the protection of her first husband. There is no blame on his brother; because he did not intend the invalid, but rather he took her based on his belief that his brother had died. And so it was with the belief of her family, so there is nothing on them, and praise be to Allah. And if this is not established, then she is his wife, and he should not rush or be satisfied with just this letter he wrote, unless it is known to be his handwriting, his brother's handwriting. If it is known that this is his brother's handwriting, and the upright witnesses recognize it as his pen, and that it is newly dated, and there is no doubt in it, and there is no fear that someone took an old letter or imitated his handwriting.
The point is: that verification in matters is necessary. So if he is certain with certainty that his brother is alive, then at that time he separates from her, and his marriage to her, who is already married, is considered, and he is excused. The safest course is to divorce her with one divorce to get out of the disagreement of those who said the marriage is valid in this case, even if it turns out he is alive; because he married her in a lawful manner believing he was killed. Yes.
The presenter: But after the news arrives, for the truth to become clear, does he separate from his wife?
The Shaykh: He is not required to separate; because the original state is the permissibility of the marriage, the original state is that it is a lawful marriage, so he is not required to separate from her until it is verified that his brother is alive.
The presenter: Yes, may Allah reward you.
This is a question sent by (Abu 'Umar T. M. Sh.) from Iraq, Ninawa Governorate. He says: In our area, one of the young men was martyred, and his body came to his family disfigured and unrecognizable, but the address indicated the name of the martyr and his house. They buried him in the village cemetery. The martyr left behind a wife and children. After nine or ten months had passed since the young man's martyrdom, the wife's family came to the martyr's brother, asking him to marry their daughter, the martyr's wife. He refused to marry her. After a few days of this matter, they told him: If you do not marry her, we will marry her to someone else. The brother remained in a difficult position: either he would marry her and take care of his brother's orphans, or he would leave her to marry someone else. In any case, he married her without any desire to do so. After a year of marriage, she gave birth to a child for him.
After a few months, a message arrived from his brother, whom they had believed to be martyred. It said: I am still alive, and I am a prisoner in one of the enemy's prisons. He also gave instructions regarding his wife and children. His brother was struck by a great calamity because of his marriage to his brother, who is alive and well. When the prisoner returns to his country and family safely, will the second marriage be invalid, or do they have the right to remain in the marital home? If it is invalid, how does the first husband return to his wife if he has the right to take her back? Finally, what is the Shari'ah solution to this matter?
Answer:
This matter requires verification. As long as the martyr who came to them had signs indicating that he was the brother of the person in question, and that he was their killed one and their son, and he married her based on this, namely that his brother had been martyred, then there is no sin on him and no blame on him. But once it is established with certainty that his brother is in prison, he must separate from her at that time, and she remains the wife of his brother. If she wishes, she may take the matter to the Shari'ah judge to annul the marriage if she needs the annulment and separation due to his imprisonment and his inability to reach her. This is a matter that returns to the Shari'ah judge who looks into the case of this woman and her husband; because I fear that this writer may be lying, and he wanted to confuse the martyr's brother and claim to be so-and-so.
The presenter: Who wrote the message?
The Shaykh: The one who wrote the message is also feared to be a forger and a liar, so verification in matters is necessary. If they ask the officials in the Iraqi government, or send someone to look at the prisoners, or test the prisoners so that those who know him can recognize him after verifying this, then at that time his new husband—his brother—separates from her, and she remains in the protection of her first husband. There is no blame on his brother; because he did not intend the invalid, but rather he took her based on his belief that his brother had died. And so it was with the belief of her family, so there is nothing on them, and praise be to Allah. And if this is not established, then she is his wife, and he should not rush or be satisfied with just this letter he wrote, unless it is known to be his handwriting, his brother's handwriting. If it is known that this is his brother's handwriting, and the upright witnesses recognize it as his pen, and that it is newly dated, and there is no doubt in it, and there is no fear that someone took an old letter or imitated his handwriting.
The point is: that verification in matters is necessary. So if he is certain with certainty that his brother is alive, then at that time he separates from her, and his marriage to her, who is already married, is considered, and he is excused. The safest course is to divorce her with one divorce to get out of the disagreement of those who said the marriage is valid in this case, even if it turns out he is alive; because he married her in a lawful manner believing he was killed. Yes.
The presenter: But after the news arrives, for the truth to become clear, does he separate from his wife?
The Shaykh: He is not required to separate; because the original state is the permissibility of the marriage, the original state is that it is a lawful marriage, so he is not required to separate from her until it is verified that his brother is alive.
The presenter: Yes, may Allah reward you.
Source
binbaz.org.sa
The Arabic text is copied verbatim from the original source, without any edits.