Source: Fatāwā Muḥammadiyyah, Volume 1, Page 699❖ Question:
What do the scholars of Islam say regarding the case of Muhammad Aslam, son of Vilayat Khan, whose marriage according to Islamic law was conducted with Nasreen, daughter of Mujrad Khan, on 15-06-1991?
Subsequently, Nasreen, by placing false accusations against me, filed a case for annulment of marriage in the Civil Court of Chunian, District Kasur, of which I had absolutely no knowledge. Moreover, in the court, she falsely recorded my father's name as Hashmal Khan instead of Vilayat Khan, and secured a one-sided decree on 28-10-1996. I was not informed of this verdict, nor was I ever present in the court.
The questions are:
① Is such an annulment of marriage valid according to Islamic law?
② Nasreen then married Muhammad Ishaq, son of Aidha Khan, on 25-02-1997, and is now living with him. Is this second marriage valid according to Islamic Shariah?
③ If not, what sin have Nasreen and Ishaq committed, and what is the punishment for it in the light of Qur’an and Hadith?
④ After how long can a divorced woman remarry according to Shariah?
❖ Answer:
Alḥamdulillāh, waṣ-ṣalātu was-salāmu ‘alā Rasūlillāh, ʿammā baʿd!
✦ Only the Husband Has the Right to Issue Divorce
As per the given scenario, it is clarified that only the husband has the right to divorce, and no other person possesses this right. As the Qur’ān states:
﴿يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ﴾
“O you who believe! When you marry believing women, and then divorce them…”
Surah al-Aḥzāb (33:49)
﴿وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ﴾
“And when you divorce women and they have fulfilled their term…”
In these verses, the authority to marry and to divorce has been clearly attributed only to the husband.
✦ Authentic Hadith Supporting This Principle
عَنِ ابْنِ عَبَّاسٍ، قَالَ: أَتَى النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ رَجُلٌ، فَقَالَ:… إِنَّمَا الطَّلَاقُ لِمَنْ أَخَذَ بِالسَّاقِ
Narrated by Ibn ʿAbbās رضي الله عنه: A man came to the Prophet ﷺ and said... So the Messenger of Allah ﷺ said: “Verily, divorce is only for the one who possesses the right over the leg (i.e., the husband).”
This ḥadīth confirms that no one besides the husband can exercise the right of divorce.
✦ Position of the Jurists (Fuqahāʾ)
The majority of jurists (jumhūr fuqahāʾ) agree that witnesses are not a necessary condition for divorce because it is solely the husband's right.
As stated by al-Sayyid Muḥammad Sābiq al-Miṣrī:
ذهب جمهور الفقهاء من السلف والخلف إلى أن الطلاق يقع بدون إشهاد، لان الطلاق من حقوق الرجل
“The majority of jurists, past and present, are of the opinion that divorce is valid without witnesses because divorce is among the exclusive rights of the man.”
❖ When Can a Judge Annul a Nikāḥ (Marriage)?
To protect the rights of the wife, a qāḍī (Islamic judge) has the authority to annul a marriage in specific situations, provided all Sharʿī conditions are met. These five situations are:
① Annulment due to lack of maintenance (nafaqah)
◈ If the husband is unable or refuses to provide maintenance.
◈ Permitted by: Imām Mālik, Imām Shāfiʿī, and Imām Aḥmad
◈ Not permitted by: Imām Abū Ḥanīfah
② Annulment due to harm (ḍarar)
◈ If the husband abuses the wife or forces her into sinful acts and she can present evidence.
③ Annulment due to prolonged absence (ghaybah)
◈ If the husband is away for a long time and the wife is unable to bear the separation.
④ Annulment due to imprisonment
◈ If the husband is imprisoned for three years or more, and the wife cannot live alone in hardship.
✔ Other than these four categories, a judge has no right to annul a marriage.
❖ Ruling on This Specific Case
If the court informed the husband, followed Islamic legal procedures, and completed the process with valid testimony, the annulment is valid.
However, if the husband was not informed and the judgment was given ex parte (one-sided) without fulfilling Shariah requirements, then such a ruling is invalid and un-Islamic.
The Prophet ﷺ said:
«إِنَّمَا أَنَا بَشَرٌ، وَإِنَّهُ يَأْتِينِي الخَصْمُ... فَمَنْ قَضَيْتُ لَهُ بِحَقِّ مُسْلِمٍ، فَإِنَّمَا هِيَ قِطْعَةٌ مِنَ النَّارِ…»
“I am only a human being. Litigants come to me, and perhaps some of them are more eloquent than others, so I judge according to what I hear. So whoever I judge in his favor (wrongfully), I am giving him a piece of Hellfire; he may take it or leave it.”
❖ The Second Marriage and Its Ruling
If the first husband was not informed, and the divorce was not valid, then the second marriage is not a marriage, but rather fornication (zinā).
As the Qur’ān states:
﴿وَالْمُحْصَنَاتُ مِنَ النِّسَاءِ إِلَّا مَا مَلَكَتْ أَيْمَانُكُمْ﴾
“And [forbidden to you are] married women, except those whom your right hands possess…”
Ibn Kathīr writes:
(أَيْ: وَحُرِّمَ عَلَيْكُمُ الْأَجْنَبِيَّاتُ الْمُحْصَنَاتُ وهي الْمُزَوَّجَاتُ)
“Meaning: Forbidden to you are married women — i.e., those who are already in wedlock.”
Hence, the second marriage is void from the outset and considered zinā.
❖ Punishment for Zinā (Fornication/Adultery)
◈ If both are unmarried: 100 lashes
◈ If both are married: Stoning to death (rajm)
◈ If one is married and the other is not:
- The married person: Rajm (stoning)
- The unmarried person: 100 lashes
❖ Summary of the Ruling
✔ The court’s unilateral decision is not valid according to Shariah if due process was not followed.
✔ The second marriage is null and void, and amounts to zinā.
✔ Both Nasreen and Ishaq are guilty, and if the judge knowingly issued the decree, he too is sinful.
✔ A divorced woman may remarry only after observing her ‘iddah, which is three menstrual cycles or three months (in case of no menses).
هٰذَا مَا عِندِي وَاللّٰهُ أَعْلَمُ بِالصَّوَابِ
This is what I hold; and Allah knows best the truth.
