In one of addresses by Mr. ghamidi he mentioned that there is no need for Halala in case a person wants to marry a person already divorced, i.e. ex wife. Is it true? In this case what is the significance of Halala? Kindly elaborate
Answer
The concept of halalah is one of the ugliest and shameful of issues of Islamic jurisprudence. According to the shariah, if a man divorces his wife for a third time in his life, the two cannot re-marry unless the wife marries a second person and then that person due to some reason divorces her. In order to fulfill this legal requirement, subterfuges have been devised and marriages are planned with the understanding that a person will divorce the wife in order to make her legal to marry the first husband. In this regard, the jurists also impose the condition that before he divorces his wife he must have sexual intercourse with her. In religious parlance, this subterfuge in which a lady is made legally allowed for her first husband by marrying another person and then being divorced from her after having sexual intercourse with him is called halalah.
Needless to say, that all subterfuges amount to playing with the Islamic law and its spirit. Moreover, the condition of sexual intercourse imposed has arisen because of not understanding a very subtle comment of the Prophet (sws) in a Hadith. If its text reported by Bukhari is analyzed it is evident that a certain lady had married a person only to become legally permissible to marry her first husband. She demanded divorce from her second husband on the false grounds that her husband was sexually impotent. When the Prophet (sws) became certain of her scheme, he reprimanded her in very subtle words. He told her that she could only become permissible for the first husband after ‘tasting’ her second husband. This of course was not a condition as has been generally construed: the implied meaning being that if according to her, her second husband does not have the ability to copulate with her then she can only be divorced from him after he copulates with her – which of course he will never since, according to her, he is not capable of it. Thus if anything can be deduced from this Hadith, it is prohibition of halalah and not vice versa. Hence it is absolutely prohibited and is tantamount to making fun of the law.
The text of the Hadith is as follows:
عَنْ عِكْرِمَةَ أَنَّ رِفَاعَةَ طَلَّقَ امْرَأَتَهُ فَتَزَوَّجَهَا عَبْدُ الرَّحْمَنِ بْنُ الزَّبِيرِ الْقُرَظِيُّ قَالَتْ عَائِشَةُ وَعَلَيْهَا خِمَارٌ أَخْضَرُ فَشَكَتْإِلَيْهَا وَأَرَتْهَا خُضْرَةً بِجِلْدِهَا فَلَمَّا جَاءَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَالنِّسَاءُ يَنْصُرُ بَعْضُهُنَّ بَعْضًا قَالَتْ عَائِشَةُ مَا رَأَيْتُ مِثْلَ مَا يَلْقَى الْمُؤْمِنَاتُ لَجِلْدُهَا أَشَدُّ خُضْرَةً مِنْ ثَوْبِهَا قَالَ وَسَمِعَ أَنَّهَا قَدْ أَتَتْ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَجَاءَ وَمَعَهُ ابْنَانِ لَهُ مِنْ غَيْرِهَا قَالَتْ وَاللَّهِ مَا لِي إِلَيْهِ مِنْ ذَنْبٍ إِلَّا أَنَّ مَا مَعَهُ لَيْسَ بِأَغْنَى عَنِّي مِنْ هَذِهِ وَأَخَذَتْ هُدْبَةً مِنْ ثَوْبِهَا فَقَالَ كَذَبَتْ وَاللَّهِ يَا رَسُولَ اللَّهِ إِنِّي لَأَنْفُضُهَا نَفْضَ الْأَدِيمِ وَلَكِنَّهَا نَاشِزٌ تُرِيدُ رِفَاعَةَ فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَإِنْ كَانَ ذَلِكِ لَمْ تَحِلِّي لَهُ أَوْ لَمْ تَصْلُحِي لَهُ حَتَّى يَذُوقَ مِنْ عُسَيْلَتِكِ قَالَ وَأَبْصَرَ مَعَهُ ابْنَيْنِ لَهُ فَقَالَ بَنُوكَ هَؤُلَاءِ قَالَ نَعَمْ قَالَ هَذَا الَّذِي تَزْعُمِينَ مَا تَزْعُمِينَ فَوَاللَّهِ لَهُمْ أَشْبَهُ بِهِ مِنْ الْغُرَابِ بِالْغُرَابِ
‘Ikramah narrates that Rifa’ah divorced his wife. Thereafter she married ‘Abd al-Rahman Ibn Zibir Qurazi. ‘A’ishah says that she came to her wearing a green cloak and complained of her husband and showed ‘A’ishah her bruises – women do help one another – so when the Prophet (sws) came by, ‘A’ishah said: “I have only seen Muslim women being treated in such a way. Her skin is greener than her cloak.” ‘Ikramah says that when her husband came to know that she had complained to the Prophet (sws), he also came over to the Prophet (sws) along with his two sons from his other wife. Upon seeing her husband, she got hold of the end of her cloak letting it hang from her hand and remarked: My only complaint is that whatever he has is no more than this [soft cloth]. At this, ‘Abd al-Rahmansaid: “O Prophet (sws) of Allah! she has told a lie. I am very strong and can satisfy her; the truth of the matter is that she is disobedient and wants to go back to Rifa’ah.” When the Prophet (sws) heard this, he said: “If this is the case then you shall not be permissible for Rifa’ah unless ‘Abd al-Rahman tastes you.” Then, upon seeing the sons of ‘Abd al-Rahman, the Prophet (sws) remarked: “Are these your sons?” When he replied in the affirmative, the Prophet said: “Do you tell such lies [O ‘Abd al-Rahman’swife]. By God! these [young boys] resemble ‘Abd al-Rahman more than a crow resembles another crow.” (Bukhari, No: 5825)
1. The clarification presented in this section is adapted from Ghamidi’s Mizan. See: Ghamidi, Mizan, 450-453.
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