Islamic Rulings - Living Shariah Verdicts

Islamic Questions & Answers

In this day and age a lot of people step out of there marriage and make kids that r not there husband and bring back S.T.Ds so can I ask my husband to use condoms with me to protect myself if he take on a second wife.

Praise be to Allaah.

Firstly:

Zina is a major sin, great calamity and the worst of conduct, and its consequences in this world, in the Hereafter and in the grave are severe.

Allah says (interpretation of the meaning):

"Made lawful to you this day are At-Tayyibaat [all kinds of Halaal (lawful) foods, which Allaah has made lawful (meat of slaughtered eatable animals, milk products, fats, vegetables and fruits)]. The food (slaughtered cattle, eatable animals) of the people of the Scripture (Jews and Christians) is lawful to you and yours is lawful to them. (Lawful to you in marriage) are chaste women from the believers and chaste women from those who were given the Scripture (Jews and Christians) before your time when you have given their due Mahr (bridal-money given by the husband to his wife at the time of marriage), desiring chastity (i.e. taking them in legal wedlock) not committing illegal sexual intercourse, nor taking them as girlfriends. And whosoever disbelieves in Faith, [i.e. in the Oneness of Allaah and in all the other Articles of Faith i.e. His (Allaah's) Angels, His Holy Books, His Messengers, the Day of Resurrection and Al-Qadar (Divine Preordainments)], then fruitless is his work; and in the Hereafter he will be among the losers"

[al-Maa'idah 5:5].

Ibn Katheer (may Allah have mercy on him) said:

Just as it is stipulated that women be chaste -- which means refraining from zina -- it is also stipulated for men; a man should also be chaste. Hence Allah says "not committing illegal sexual intercourse", referring to adulterers and fornicators who do not refrain from committing any sin and do not control themselves. "nor taking them as girlfriends" means: limiting himself to one woman or mistress. End quote.

Tafseer Ibn Katheer, 3/43

Shaykh al-Islam [Ibn Taymiyah] (may Allah have mercy on him) said:

If a woman's husband commits zina with another woman, and does not distinguish between halaal and haraam, his intimacy with that woman is the same as the intimacy of the zaani with a woman with whom he is committing zina, even if no one else is intimate with her, because one of the forms of zina is taking a girlfriend or mistress.

End quote. Majmoo‘ al-Fataawa, 32/145

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) was asked:

A woman saw her husband committing zina -- Allah forbid. What should she do?

He replied:

She should advise him, especially if that was the first time and she has children from him. But if he persists in doing that then she should seek an annulment of the marriage. However, in general, she should weigh up the pros and cons and decide on that basis. End quote.

Thamaraat al-Tadween min Masaa'il Ibn ‘Uthaymeen, p. 112

See also the answer to question no. 115107

Secondly:

The wife does not have the right to ask her husband to use condoms during marital relations, unless there is a reason for doing that. The fact that he has married another woman in a legitimate shar‘i marriage does not make it permissible for her to do that, unless it is clear that the husband himself has a disease, such as AIDS and the like, which could be transmitted to her through sex, or it becomes clear that the other wife has a disease of this type, or the husband was in a haraam relationship outside of marriage. In that case she has the right to ask him to use condoms, so as to ward off the harm that is thought to exist in him, until it becomes clear that he is free of that. If it becomes clear that he is healthy and there is no obvious source of danger of transmitting disease through him, then she no longer has the right to ask him to do that. If it becomes clear that he does have a disease which could harm her or be transmitted to her, then she has the right to ask him to carry on using it; indeed, in that case she has the right to ask him to annul the marriage, if his sickness poses a danger to her and it is something that it is difficult to treat or avoid, such as AIDS and the like.

See: al-Ahkaam al-Shara‘iyyah al-Muta‘alliqah bi Marda al-AIDS, by Dr. ‘Umar Sulaymaan al-Ashqar, in Diraasaat Fiqhiyyah fi Qadaaya Tibbiyyah (1/25 ff).

And Allah knows best

Types Of Conditions In The Marriage Contract: The Basic Principle For Both Partners

I am a young man who is engaged and is going to get married. I've heard that at the time of the marriage contract, the wife can stipulate conditions in the contract. My question is: what are the limits of these conditions? What happens if the conditions are broken? Is it possible to give the wife herself the right to divorce (talaaq) if I break these conditions? Is it possible for the condition to be, for example, that I will not take another wife and in the event that I do take another wife she will be divorced from me?
I hope you can advise and explain this matter in detail. May Allah reward you with good.

Praise be to Allaah.

The basic principle with regard to the conditions stipulated by both partners in the marriage contract is that it is a valid condition that must be fulfilled, and it is not permissible to break it, because the Prophet (blessings and peace of Allah be upon him) said: "The condition which most deserves to be fulfilled is that by means of which intimacy becomes permissible for you." Narrated by al-Bukhaari (2721) and Muslim (1418).
Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said:

The basic principle with regard to conditions in the marriage contract is that they are valid, unless there is proof to show that they are not valid. The evidence for that is the general meaning of the evidence which speaks of fulfilling covenants:

"O you who believe! Fulfil (your) obligations"

[al-Maa'idah 5:1]

"And fulfil (every) covenant. Verily, the covenant will be questioned about"

[al-Isra' 17:34]

and in the hadeeth narrated from the Messenger (blessings and peace of Allah be upon him) it says: "The Muslims are bound by their conditions, except a condition that forbids what is permissible or permits what is forbidden." Narrated by al-Tirmidhi (1352). And he (blessings and peace of Allah be upon him) said: "Whoever stipulates a condition that is not in the Book of Allaah it is not valid, even if he stipulates a hundred times." Narrated by al-Bukhaari (2155) and Muslim (1504).

To sum up, the basic principle with regard to conditions is that they are permissible and valid, whether they are to do with marriage, buying and selling, renting, pledges or mortgages, or awqaaf. The ruling on the conditions that are stipulated in contracts, if they are valid, is that they must be fulfilled, because of the general meaning of the verse (interpretation of the meaning):

"O you who believe! Fulfil (your) obligations"

[al-Maa'idah 5:1].

End quote.

Al-Sharh al-Mumti', 5/241 (Egyptian edition).

For examples of that ,see the answers to questions number 20757 and 10343

With regard to the woman stipulating that the husband should not take a second wife, the opinion of some scholars is that this condition is permissible, and if the husband breaks it, the wife has the right to annul the marriage and take her dues in full.

Ibn Qudaamah (may Allah have mercy on him) said:

If he stipulates that he will not take her out of her house or her city, or that he will not travel with her or will not take another wife, then he is obliged to fulfil that, and if he does not do so, then she has the right to annul the marriage. This was narrated from ‘Umar, Sa'd ibn Abi Waqqaas and ‘Amr ibn al-‘Aas (may Allah be pleased with them). End quote.

Al-Mughni, 9/483

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said:

If she stipulates that he should not take another wife, this is permissible. Some of the scholars said that it is not permissible, because it is restricting the husband in something that Allah has permitted to him, and it is contrary to the Qur'aan in which it says (interpretation of the meaning): "then marry (other) women of your choice, two or three, or four" [al-Nisa' 4:3]. It may be said in response to that that she has a reason to ask him not to marry another wife and she is not transgressing against anyone. The husband himself is the one who is giving up his right; if he has the right to marry more than one, he is giving it up. So what is to prevent this condition being valid?

Hence the correct view with regard to this matter is the view of Imam Ahmad (may Allah have mercy on him), which is that this condition is valid. End quote.

Al-Sharh al-Mumti', 5/243

It should be noted that if the husband breaks this condition, his wife does not become divorced as a result of that, rather she has the right to annul the marriage, and she may either annul it or give up the condition and accept what her husband has done, and remain as his wife.

Shaykh Saalih al-Fawzaan (may Allah preserve him) said:

Among other conditions that are valid in marriage is if she stipulates that he should not take another wife. If he fulfils the condition (all well and good), otherwise she has the right to annul the marriage because of the hadeeth, "The condition which most deserves to be fulfilled is that by means of which intimacy becomes permissible for you." Similarly, if she stipulates that he should not separate her from her children or parents, this condition is valid and if he breaks it, she has the right to annul the marriage. If she stipulates that her mahr should be increased or that it should be in a specific currency, the condition is valid and binding, and he has to fulfil it, and she has the right of annulment if it is broken. In that case she has the choice and may decide any time she wants and may annul it whenever she wants, so long as there is nothing on her part to indicate that she accepts it if she knows that he has gone against what was stipulated; in that case she would no longer have the option.

‘Umar ibn al-Khattaab (may Allah be pleased with him) said to the one who he ruled was obliged to fulfil what his wife had stipulated, when the man said, "Divorce us in that case," ‘Umar said: It is a must to fulfil the conditions, because of the hadeeth, "The believers are bound by their conditions." Al-‘Allaamah Ibn al-Qayyim said: It is obligatory to fulfil these conditions which are the most deserving of being fulfilled. This is what is implied by sharee'ah, reason and sound analogy, if the woman did not agree to become a man's wife except on these conditions, and if it were not obligatory to fulfil them, then the marriage contract would not be based on mutual agreement, and it would be making something obligatory upon her that Allah and His Messenger have not made obligatory. End quote.

Al-Mulakhkhas al-Fiqhi (2/345, 346)

And Allah knows best.

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