[heennaRaf]

Would someone please help me? I'd really appreciate a quick reply.

If a woman states in her marriage contract that her husband cannot marry again and he agrees but he does, is their nikah valid?

From reading an old thread on here it appears the nikah would still be valid and the husbands just broken a promise or something. If that is the case, what is the point of a woman including that condition or any condition for that matter in her marriage contract? If in the contract the woman makes clear and the husband agrees that upon him taking a second wife, their nikah will be terminated, is this permissible and in this scenario would the nikah then be invalid?

Jazaka'Allah.

[Sheelldaw]

Would someone please help me? I'd really appreciate a quick reply.

If a woman states in her marriage contract that her husband cannot marry again and he agrees but he does, is their nikah valid?

From reading an old thread on here it appears the nikah would still be valid and the husbands just broken a promise or something. If that is the case, what is the point of a woman including that condition or any condition for that matter in her marriage contract? If in the contract the woman makes clear and the husband agrees that upon him taking a second wife, their nikah will be terminated, is this permissible and in this scenario would the nikah then be invalid?

Jazaka'Allah.

Welcome to the forum!

The purpose of such stipulation is merely for divorce. Usually it is done in two ways:

"No second marriage, or else you divorce me.." or you simply ask for a right to divorce the husband, which can be granted at Nikah by the husband.

W Allahu a'lam.

[heennaRaf]

Welcome to the forum!

The purpose of such stipulation is merely for divorce. Usually it is done in two ways:

"No second marriage, or else you divorce me.." or you simply ask for a right to divorce the husband, which can be granted at Nikah by the husband.

W Allahu a'lam.

Thank you for replying.

Sorry about this and I know it's Ramadhan but will you please check if my understanding is correct?

When you say "No second marriage, or else you divorce me.." would the husband have to divorce his wife? In the other thread, I read that the wife asking for a divorce because her husbands taken another wife isn't a valid reason..

Also if he doesn't have to divorce her then who's to say he will so we're back to her condition having no significance.

If however in the contract she states that: 'you cannot take another wife and if you do I have the right to divorce you' then lets say, he takes another wife, she tries to be patient, cope blah etc. but she doesn't, would I be correct in believing that she'll be able to divorce him now without sinning?

[GinaGomesz]

Would someone please help me? I'd really appreciate a quick reply.

If a woman states in her marriage contract that her husband cannot marry again and he agrees but he does, is their nikah valid?

From reading an old thread on here it appears the nikah would still be valid and the husbands just broken a promise or something. If that is the case, what is the point of a woman including that condition or any condition for that matter in her marriage contract? If in the contract the woman makes clear and the husband agrees that upon him taking a second wife, their nikah will be terminated, is this permissible and in this scenario would the nikah then be invalid?

Jazaka'Allah.

First of all having such a condition in the contract isnt permissible by all. Theres two opinions :

1- That its not a valid condition to begin with. The evidence for this view is a hadeeth that basically says any condition that is not in the book of Allah or in the Sunnah is invalid. Theres other hadeeths about conditions that make halal haram or haram halal, invalid. They have other things to support this view but since you're just asking i'll cut it short to just give a broad general idea.

Those who hold this view are mostly Hanafis, Malikis, and Shafi'is. It is attributed (I dont know if the attiribution is valid or not) also to Ali raa, Ibn Abbas, and some Tabi'ees such as Saeed Ibn Al Musayyib and Al Hasan Al Basri and others.

2- That its a perfectly valid condition as long as they both agreed to it. In this case the husband is "forced" to fulfill the condition, if he doesnt then she may get a divorce (as opposed to going through the process of Khul', getting it from a judge) and retains all of her rights. This opinion is held mostly among scholars of the Hanbali Madhab. It is also the position of Umar Ibn Al Khattab raa, Abdallah Ibn Mas'ood raa, Sa'd Bin Abi Waqqas raa, Muawiya Bin Abi Sufyan raa, and Amr Ibn Al Aas raa. Many also from the Tabi'een hold this few such as Al Awza'ee, Al zohree, Saeed Ibn Al Jubair and others. This is also the opinion of the prominent Hanbali scholar, Ibn Qudama in Al Mughnee. They also have "evidence" supporting this, but too long to list.

( The information above is a translated summary from Arabic material.)

So my understanding of this is that she doesnt have to get a divorce, but may if she wants, and may nullify the marriage (Faskh, a term used usually when talking about contracts).

Hope that helped.

[heennaRaf]

First of all having such a condition in the contract isnt permissible by all. Theres two opinions :

1- That its not a valid condition to begin with. The evidence for this view is a hadeeth that basically says any condition that is not in the book of Allah or in the Sunnah is invalid. Theres other hadeeths about conditions that make halal haram or haram halal, invalid. They have other things to support this view but since you're just asking i'll cut it short to just give a broad general idea.

Those who hold this view are mostly Hanafis, Malikis, and Shafi'is. It is attributed (I dont know if the attiribution is valid or not) also to Ali raa, Ibn Abbas, and some Tabi'ees such as Saeed Ibn Al Musayyib and Al Hasan Al Basri and others.

2- That its a perfectly valid condition as long as they both agreed to it. In this case the husband is "forced" to fulfill the condition, if he doesnt then she may get a divorce (as opposed to going through the process of Khul', getting it from a judge) and retains all of her rights. This opinion is held mostly among scholars of the Hanbali Madhab. It is also the position of Umar Ibn Al Khattab raa, Abdallah Ibn Mas'ood raa, Sa'd Bin Abi Waqqas raa, Muawiya Bin Abi Sufyan raa, and Amr Ibn Al Aas raa. Many also from the Tabi'een hold this few such as Al Awza'ee, Al zohree, Saeed Ibn Al Jubair and others. This is also the opinion of the prominent Hanbali scholar, Ibn Qudama in Al Mughnee. They also have "evidence" supporting this, but too long to list.

( The information above is a translated summary from Arabic material.)

So my understanding of this is that she doesnt have to get a divorce, but may if she wants, and may nullify the marriage (Faskh, a term used usually when talking about contracts).

Hope that helped.

Thank you! Your post was very helpful.

Just to be clear, sorry, as a Hanafi then, I would not be able to have such a condition? Shocking.

[GinaGomesz]

Thank you! Your post was very helpful.


Just to be clear, sorry, as a Hanafi then, I would not be able to have such a condition? Shocking.

(You are most welcome)

Well I cant say that. I think Madhabs are good general guidelines, but in the end "evidence" from Quran and Sunnah is what counts, and I dont think they should be followed blindly to the point where evidences are ignored.

Also please note that in one Madhab, sometimes, you'll have several opinions. Especially in the Hanafi Madhab. This is because Imam Abu Haneefah was the first of the four Imams and at his time many Hadeeths werent collected yet and he was mostly in Iraq (far from Makkah and Madinah). This is why he resorted in many cases to "Al Ra'i" (opinion) and analogies etc. His student, Abu Yousef, had different views on many, many issues, and so on.

I dont know if theres other views within the Hanafi Madhab. The general mainstream positions however, are as posted above.

[heennaRaf]

(You are most welcome)

Well I cant say that. I think Madhabs are good general guidelines, but in the end "evidence" from Quran and Sunnah is what counts, and I dont think they should be followed blindly to the point where evidences are ignored.

Also please note that in one Madhab, sometimes, you'll have several opinions. Especially in the Hanafi Madhab. This is because Imam Abu Haneefah was the first of the four Imams and at his time many Hadeeths werent collected yet and he was mostly in Iraq (far from Makkah and Madinah). This is why he resorted in many cases to "Al Ra'i" (opinion) and analogies etc. His student, Abu Yousef, had different views on many, many issues, and so on.

I dont know if theres other views within the Hanafi Madhab. The general mainstream positions however, are as posted above.

Ah okay, I'm not a mujtahid imam though, so I'm not able to determine which opinion is more correct or which should be given preference. Therefore, were I to take from another madhab, it's impossible that I would be taking it based upon knowledge. Because for one to disagree with an opinion, or give preference by leaving one for another, you must either be equally or more qualified than that imam.

So were I to take from the Hanbali madhab, I'd clearly be doing so because of desires. And to take one opinion over another based upon desire is completely haram thoroughly established by the Qu'ran and Sunnah. Didn't sheikh Ibn Taymiyyah r.h. even write against people who did this?

Anyway thanks for all your help, you've been very helpful and I hope I haven't come across as being disrespectful. Hopefully someone will just help clarify iA.

[GinaGomesz]

Ah okay, I'm not a mujtahid imam though, so I'm not able to determine which opinion is more correct or which should be given preference. Therefore, were I to take from another madhab, it's impossible that I would be taking it based upon knowledge. Because for one to disagree with an opinion, or give preference by leaving one for another, you must either be equally or more qualified than that imam.

So were I to take from the Hanbali madhab, I'd clearly be doing so because of desires. And to take one opinion over another based upon desire is completely haram thoroughly established by the Qu'ran and Sunnah. Didn't sheikh Ibn Taymiyyah r.h. even write against people who did this?

Anyway thanks for all your help, you've been very helpful and I hope I haven't come across as being disrespectful. Hopefully someone will just help clarify iA.

Blind following of Madhabs and Taqleed/Ijtihaad would be a long discussion anyway. And even if you did (hypothetically speaking) agree to my statement above, it should be for the right reason, and not because of whim or desires. Clearly, this should never be the case.

Besides I didnt write the whole text afterall (which is has all the details of each view and comparing evidences etc, written by scholars). So I couldnt agree with you more on that, and rather think that you pointing it out is most certainly praiseworthy. To be honest I just looked around board and just realized that most here hold views similar to the one you mentioned on Ijtihaad/Taqleed, and perhaps Sufism. So I hope I didnt come off as imposing my view.

Jazak Allah Khair and thank you very much for your kindness.

[heennaRaf]

Blind following of Madhabs and Taqleed/Ijtihaad would be a long discussion anyway. And even if you did (hypothetically speaking) agree to my statement above, it should be for the right reason, and not because of whim or desires. Clearly, this should never be the case.

Besides I didnt write the whole text afterall (which is has all the details of each view and comparing evidences etc, written by scholars). So I couldnt agree with you more on that, and rather think that you pointing it out is most certainly praiseworthy. To be honest I just looked around board and just realized that most here hold views similar to the one you mentioned on Ijtihaad/Taqleed, and perhaps Sufism. So I hope I didnt come off as imposing my view.

Jazak Allah Khair and thank you very much for your kindness.

No of course not but yeah.. the whole following a single madhab issue has been done to death on here.

[NudiJuicervich]

Assalamu alaikum,

Brother Sraightpath has provided no evidence from the Qur'an and sunnah either. He has claimed it to be the opinion the of some sahabas and tabieen and quoted from Mughni without reference.

So if we are to bring up the issue of accuracy according to Qur'an and sunnah then please bring proof from Qur'an and sunnah.

It is very sad to see that we are claiming that there can be only one truth derived from the Qur'an and sunnah. Whereas the same Qur'an and sunnah can be interpreted differently by different people coming to different conclusions. Alas, if it is not the interpretation which we adhere to it is not accurate or valid.

Why can't all the interpretations - i.e. of the hanafis, shafis, malikis and hanbalis - all be valid interpretations of the Qur'an and sunnah? Hanafis will say their one is more accurate but shafis will say their one is more accurate. Who is correct? No one knows - only Allah. If we say let's go back to Qur'an and sunnah - then all the madhabs have done just that and come to different conclusions.

If anyone wants to compare evidences, then they must read the books of the respective madhabs. Obviously the Hanbalis will present the evidences which shows their opinion to be stronger and the Hanafis will do the same. If one is truly seeking to see which one is stronger they must resort to the books of the respective madhabs for evidences. Merely referring to one book is clearly not enough.

[Evsltkzl]

Would someone please help me? I'd really appreciate a quick reply.

If a woman states in her marriage contract that her husband cannot marry again and he agrees but he does, is their nikah valid?

From reading an old thread on here it appears the nikah would still be valid and the husbands just broken a promise or something. If that is the case, what is the point of a woman including that condition or any condition for that matter in her marriage contract? If in the contract the woman makes clear and the husband agrees that upon him taking a second wife, their nikah will be terminated, is this permissible and in this scenario would the nikah then be invalid?

Jazaka'Allah.

In short, no, the nikah will not be invalidated by such a condition.

At the time of marriage, when conditions are stipulated the spouses are required to fulfil them just as they would uphold a promise that they made, but failure to do this does not invalidate the marriage. Moreover, if the conditions are contrary to Islamic teachings they are void anyway and have no bearing whatsoever and nor is either party required to fulfil them.

The other issue, is to give the wife the right to divorce her husband. Although permissible, this should be abstained from as much as possible. There is a reason Allah has given the right to divorce to the husband and one should be mindful of the wisdom behind it. This right should only be excercised in certain extreme conditions.

With regards to husband marrying again, its not always as intolerable as it initially appears to be. A woman should be careful about preventing her husband from marrying again as under certain circumstances, it is more beneficial for her if he does marry again than for her to restrict him to her only when he clearly is in need of a second wife. If he does manage it, it will not be without resentment and she will be making unlawful that which Allah has made permissible. My advice is to not worry about stipulating any conditions in marriage except in abnoramal situations. What seems extremely important before marriage is often not as significant after marriage as with marriage, lives, personalities and perspectives often change dramatically especially when the spouses marry at a young age.

[GinaGomesz]

Assalamu alaikum,

Brother Sraightpath has provided no evidence from the Qur'an and sunnah either. He has claimed it to be the opinion the of some sahabas and tabieen and quoted from Mughni without reference.

So if we are to bring up the issue of accuracy according to Qur'an and sunnah then please bring proof from Qur'an and sunnah.

It is very sad to see that we are claiming that there can be only one truth derived from the Qur'an and sunnah. Whereas the same Qur'an and sunnah can be interpreted differently by different people coming to different conclusions. Alas, if it is not the interpretation which we adhere to it is not accurate or valid.

Why can't all the interpretations - i.e. of the hanafis, shafis, malikis and hanbalis - all be valid interpretations of the Qur'an and sunnah? Hanafis will say their one is more accurate but shafis will say their one is more accurate. Who is correct? No one knows - only Allah. If we say let's go back to Qur'an and sunnah - then all the madhabs have done just that and come to different conclusions.

Walaikom Assalam,

Akhee if you carefully read what I wrote you'd see that support of Sahabah for BOTH opinions is there. I didnt claim any single opinion to be the one with support from Al Sahabah.

What I mentioned was only to give a broad idea of the views, not to give detailed fatwa with detailed evidences etc and page numbers etc (It took long enough to translate a short part of a long text.) . Even though even though I do lean towards one opinion more than the other, never did I say this opinion is the one that MUST be followed and others are wrong. This was never said nor intended. Especially that a detailed study was not presented.

It is not accurate to say that followers of each Madhab will say that their Madhab is correct on every issue, just because the follow that Madhab. Usually at Islamic colleges and study groups (here at least), sheikhs in any issue where theres disagreement would present them all, and evidences of each, and finally conclude "X opinion seems to be the more accurate one, for the reasons 1,2, and 3." excluding weak hadeeths that may have been used etc. Never is it said that the other opinion is wrong, unless if its a rare weak opinion. So respect for opinion differences is always there.

Anyway as I said earlier, its a long topic, and I dont wish to ruin the sisters threat by turning it into a debate on the definition of Taqleed/Ijtihaad and to what extent it should be practiced etc. Theres other threads for that.

Jazak Allah Khair.

[heennaRaf]

In short, no, the nikah will not be invalidated by such a condition.

At the time of marriage, when conditions are stipulated the spouses are required to fulfil them just as they would uphold a promise that they made, but failure to do this does not invalidate the marriage. Moreover, if the conditions are contrary to Islamic teachings they are void anyway and have no bearing whatsoever and nor is either party required to fulfil them.

The other issue, is to give the wife the right to divorce her husband. Although permissible, this should be abstained from as much as possible. There is a reason Allah has given the right to divorce to the husband and one should be mindful of the wisdom behind it. This right should only be excercised in certain extreme conditions.

With regards to husband marrying again, its not always as intolerable as it initially appears to be. A woman should be careful about preventing her husband from marrying again as under certain circumstances, it is more beneficial for her if he does marry again than for her to restrict him to her only when he clearly is in need of a second wife. If he does manage it, it will not be without resentment and she will be making unlawful that which Allah has made permissible. My advice is to not worry about stipulating any conditions in marriage except in abnoramal situations. What seems extremely important before marriage is often not as significant after marriage as with marriage, lives, personalities and perspectives often change dramatically especially when the spouses marry at a young age.

Thank you so much for replying.

So women can have the right to divorce their husbands, if they write it in their contracts. Obviously I understand that this is not advisable for various reasons etc. and as far as I'm aware the majority of women don't stipulate any conditions and yes polygamy has it's many advantages.

If a woman doesn't want the right of divorce however but only wants it, if her husband was to marry again, is this permissible? So she writes down: 'If you were to marry, only then I have the right of divorce'. Could such a condition be stipulated? I don't understand why it couldn't if the husband agrees?

[niemamczasu]

Thank you so much for replying.

So women can have the right to divorce their husbands, if they write it in their contracts. Obviously I understand that this is not advisable for various reasons etc. and as far as I'm aware the majority of women don't stipulate any conditions and yes polygamy has it's many advantages.

If a woman doesn't want the right of divorce however but only wants it, if her husband was to marry again, is this permissible? So she writes down: 'If you were to marry, only then I have the right of divorce'. Could such a condition be stipulated? I don't understand why it couldn't if the husband agrees?

Yes you can stipulate whatever you want as also mentioned by Ml. Thanwi in al-hilat al-najiza. And as Mawlana Thanwi stated, it can sometimes even be recommended if the husband refuses to give a divorce.

If the husband refuses than only a judge or a council can annul the contract, which Mawlana discusses in his book. Therefore he recommends delegating one divorce [tafwid al-talaq] to the wife’s party. If this would be done during the marriage contract, many problems would solve that may occur later on he says.

However, he does say it is betetr to stipulate exceptions to this condition. Like stating that together with the wife, 2 other persons should also agree with her divorce. In order to avoid any hasty decisions by the wife.

See: Ashraf Ali Thanwi, Hilat Najiza, (Karachi: Dar al-Isha‘at 1987) p. 33, 148.

[heennaRaf]

Yes you can stipulate whatever you want as also mentioned by Ml. Thanwi in al-hilat al-najiza. And as Mawlana Thanwi stated, it can sometimes even be recommended if the husband refuses to give a divorce.

If the husband refuses than only a judge or a council can annul the contract, which Mawlana discusses in his book. Therefore he recommends delegating one divorce [tafwid al-talaq] to the wife’s party. If this would be done during the marriage contract, many problems would solve that may occur later on he says.

However, he does say it is betetr to stipulate exceptions to this condition. Like stating that together with the wife, 2 other persons should also agree with her divorce. In order to avoid any hasty decisions by the wife.

See: Ashraf Ali Thanwi, Hilat Najiza, (Karachi: Dar al-Isha‘at 1987) p. 33, 148.

Thank you!

But when I say the wife has a right to divorce, I mean the same way a man can divorce his wife without having to go to a council..

[niemamczasu]

Thank you!

But when I say the wife has a right to divorce, I mean the same way a man can divorce his wife without having to go to a council..

Yes that was discussed by Ml. Thanwi. If no tafwid at-talaq was given by the husband during or after the marriage contract and the husband refuses divorce, the only way is to go to an Islamic council.

[NudiJuicervich]

Yes you can stipulate whatever you want as also mentioned by Ml. Thanwi in al-hilat al-najiza. And as Mawlana Thanwi stated, it can sometimes even be recommended if the husband refuses to give a divorce.

If the husband refuses than only a judge or a council can annul the contract, which Mawlana discusses in his book. Therefore he recommends delegating one divorce [tafwid al-talaq] to the wife’s party. If this would be done during the marriage contract, many problems would solve that may occur later on he says.

However, he does say it is betetr to stipulate exceptions to this condition. Like stating that together with the wife, 2 other persons should also agree with her divorce. In order to avoid any hasty decisions by the wife.

See: Ashraf Ali Thanwi, Hilat Najiza, (Karachi: Dar al-Isha‘at 1987) p. 33, 148.

Assalamu alaikum,

Brother Straightpath was asking if you can have the following condition "if you marry another wife then I will have the right to divorce". To this you (Br. Ansari) replied you can stipulate anything. However I don't believe you can stipulate things like "if this happens then that will happen".

[20170425yuanyuan]

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