Marriage Without The Woman's Wali (Guardian), And Innovated Divorces (Talaaq Bid'i)
Islamic Rulings -
Living Shariah Verdicts
Islamic Questions & Answers
I married a girl without her guardian after asking a scholar. I asked him If I
can her marry her now and later If when her parents are agreed can we do an
another nikah later he said yes so we did nikah without her wali. After Nikah I
came to know that nikah is invalid according to shariah through a friend. I got
confused , after that I was never sure whether we were married or not. We only
met twice after the nikah. I thought if its not valid we will get married again
once her parents are agreed as we both live with our parents. One day while I
was angry I said I divorce you, I divorce you, I divorce you. She was also
menstruating. I took her back later but when i asked scholars some said it is
irrevocable, some said it is one, some said it is none as its in menstruation.
Some even said nikah is not valid so there is no nikah. At that time i studied
fiqh and came to know about rulings.The girl contacted the organization and they
gave her a fatwa that nikah is invalid so there is no divorce she should stay
away from me. I agreed and said there is no nikah we didn't stay in touch as
husband wife after that. After 3-4 months I thought that I divorced her once and
I did ruju so now if she married someone else she will be doing haram so I said
I divorce you . When I said these words I was all alone . The girl doesn't know
about that. what should i do now?
Praise be to Allah
What that man told you about it being permissible for you to marry this girl
without the knowledge of her wali is in accordance with the madhhab of Imam Abu
Haneefah (may Allah have mercy on him), but it is contrary to the correct view
and the view of the majority of the scholars, who stipulate that the guardian
must be present and give his consent in order for the marriage contract to be
But if there is a country whose people follow the madhhab of Imam Abu Haneefah
(may Allah have mercy on him), then it may be ruled that marriage contracts that
they do without the presence or consent of the girl's guardian are valid. Please
see a discussion of that in fatwa no. 132787.
The same applies in the case of one who gets married without the presence of the
girl's guardian, believing that this is valid – as in your case, when you went
ahead with your marriage on the basis of a fatwa issued by a scholar. Therefore
it is to be ruled valid. That has been discussed previously in fatwa no. 125363.
Thus you will realise that your divorce of your wife was a valid divorce that
basically counts as such, because you divorced your wife after a marriage which
you both believed to be valid.
But it remains to discuss the fact that it happened when she was menstruating,
and whether it counts as three or one talaaq.
The fatwa that we follow states that divorce issued at the time of menstruation
does not count as such, and does not count as one or more. If the husband issued
three divorces at once, then it counts as one divorce.
This has been discussed previously in fatwas no. 172162 and 126549.
You also say that some time after the divorce, you regarded this divorce as
valid and took her back on that basis. Therefore this divorce counts as such,
and constitutes one divorce.
With regard to your taking her back, if that was during the 'iddah then it was a
valid taking back, but if it was after the end of the 'iddah, it is not valid,
because at that point your wife had become completely divorced from you.
Rather the ruling is like that because the leading scholars stated that if a man
divorces his wife by means of an innovated divorce (talaaq bid'i) – such as a
divorce issued at the time of menstruation – then he regarded it as valid, based
on his own opinion, or following the opinion of a scholar who says that it
counts as such, then it is to be counted as a divorce, especially since there is
such a strong difference of opinion regarding this matter, and the majority of
scholars say that the innovated divorce counts as such.
This has been discussed previously in fatwa no. 158115
It should be understood that the 'iddah of a divorced woman is three menstrual
cycles. When the third menstrual cycle ends, then her 'iddah has ended. The
husband cannot take her back except within the 'iddah period only, because
Allah, may He be exalted, says (interpretation of the meaning): "And their
husbands have the better right to take them back in that period" – i.e., within
the 'iddah period – "if they wish for reconciliation" [al-Baqarah 2:228].
Thus Allah, may He be exalted, gave the husbands of divorced women a greater
right to take them back during the 'iddah period, if their intention by taking
them back is reconciliation.
With regard to the second divorce that you issued to her three or four months
later – as you said – if your taking her back was valid, because it occurred
within the 'iddah period, then this divorce counts as such. In that case you
would have issued two divorces to her, so you may take her back so long as the
'iddah period has not ended, and there remains for you the third divorce.
But if your taking her back (after the first divorce) was not valid, because it
happened after the end of her 'iddah, then this second divorce is worthless and
does not count, because once the woman's 'iddah following divorce has ended, she
is completely divorced from her husband, so any divorce or zihaar issued by him
has no effect on her, because with the end of her 'iddah she became a stranger
(non-mahram) to him.
It says in Fiqh as-Sunnah (2/252) by Sayyid Saabiq (may Allah have mercy on
If a man says to a woman to whom he was not previously married, "You are
divorced", his words are meaningless and do not have any consequences. The same
ruling applies to one who has been divorced and her 'iddah has ended, because
with the end of her 'iddah she has become a stranger to him. End quote.
In this case, if you want to marry her again, then it is permissible for you to
do that, with a new marriage contract and mahr, and in the presence and with the
consent of her wali.