Seclusion has same legal status as consummation of marriage
Fatwa No: 246769

  • Fatwa Date:7-4-2014 - Jumaadaa Al-Aakhir 7, 1435
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Question

Bismillah Assalamu alekum wa rahmatullahi wa barakatahu. I urgently need your answer. After my nikah I did not live with my husband, that is, the marriage ceremony and walima did not take place. My husband and I had secret intercourse at my home. Very sadly, I need khula from him now due to many unavoidable reasons. I know well the valid reasons for taking khula. I am praying hard to Allah, may He accept my prayers, ameen. Please tell me how can i observe iddah (waiting period) after taking khula, because I cannot disclose the secret of intercourse to even my parents because hadees say its great sin to disclose such secrets. Is iddah necessary even if husband and wife just sat in seclusion? My father showed my mom verse number 49 from surah ehzaab and strictly said that I do not need to observe iddah. My family knows just about my intimate moments with my husband but not the proper intercourse. Tell me, should I tell my parents the truth,because iddah surely is necessary in my case, but it will harm my honour, especially my husband's honour. Please pray for me,my husband and our families to be successul and happy in this world and hereafter,ameen. I read from this website titled "Very Doubtful Marriage Women and Family", dated 10-9-2003 that "al-Ahnaf and al-Hanabilah say that in khalwa......the rulings of having sex become effective even without intercourse." Kindly provide some hadees or explain the quranic verse well so I can convince my father and observe iddah without disclosing the secret. JazakAllah alkhair

Answer

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

Upon the conclusion of the marriage contract, the woman becomes lawful for her husband, and he is entitled to all the rights of a husband upon his wife. However, the customary practice of delaying the marriage consummation until after the wedding ceremony should be honored as underlined in Fatwa 88658.

The true seclusion (Khalwah) by itself entails the rulings of the  consummation of marriage as explained in Fatwa 72001. In this case, you are obliged to observe the ‘Iddah in case of divorce or Khul‘. You can show the above-mentioned Fatwa to your parents and you do not have to inform them of what happened between you and your husband.

The ‘Iddah of the divorced woman is three menstrual cycles. Scholars held different opinions regarding the ‘Iddah of the woman in case of Khul‘. Some maintained that it is the same as that of the divorced woman and others held that it is only one menstrual cycle. Please refer to Fatwa 93593 which mentions this difference of opinion.

The verse from Soorah al-Ahzaab that is referred to in the question reads (what means): {O You who have believed, when you marry believing women and then divorce them before you have touched them, then there is not for you any waiting period to count concerning them. So provide for them and give them a gracious release.}[Quran 33:49] This verse underlines the fact that in case of divorce before marriage consummation, there is no ‘Iddah for the divorcee. Ibn Katheer  may  Allaah  have  mercy  upon  him  said: "Scholars unanimously agreed on this (the divorcee does not have ‘Iddah before marriage consummation); she may get married immediately to whoever she wishes after the divorce. The only exclusion is the widow; she observes four months and ten days as ‘Iddah even if the husband passed away before marriage consummation, according to the scholarly consensus.” [Tafseer Ibn Katheer]

On the other hand, Muslim scholars held different opinions regarding the true seclusion between the spouses and whether it should be considered the same as marriage consummation in terms of the relevant rulings and its implications. The majority of Muslim scholars held that they are the same in terms of the consequent implications and relevant rulings - such as entitling the wife to receive the entire dowry and to observe the due ‘Iddah and other effects. They rely on the verdicts of the rightly-guided Caliphs in this regard which none of the Companions objected to. Ibn Qudaamah  may  Allaah  have  mercy  upon  him wrote, “We rely on the consensus of the Companions in this regard. Imaam Ahmad and Al-Athram reported on the authority of Zuraarah ibn Awfa that the rightly-guided Caliphs ruled that when the spouses meet in private behind curtains or a closed door, the Mahr becomes due and it is incumbent on the wife to observe ‘Iddah. The same opinion was reported by Al-Ahnaf on the authority of ‘Umar and ‘Ali and by Sa‘eed ibn Al-Musayyib on the authority of ‘Umar and Zayd ibn Thaabit. These cases became quite known and there was no objection to them, hence, they reached the status of scholarly consensus. (Imaam) Ahmad considered to be weak any narrations that opposed this opinion as we highlighted in the chapter on Sadaaq (dowry). Another reason is that the marriage contract is similar to the Ijaarah contract (lease); therefore once the contractor is enabled to avail himself of the "benefit" that the contract guarantees, then the contract is considered effectuated (legally and Islamically) and its consequent provisions become binding. The verse is specified by the case we have mentioned. and drawing an analogy between it and the case where true Khalwah is not found is incorrect because in that case the husband was not enabled to avail himself of the “benefit" (i.e. the lawful enjoyment of his wife).” [Al-Mughni]

For more benefit about Khul', please refer to Fatwa 114961.

May Allaah guide all of us to what pleases Him and we implore Him to bless us with Paradise, the abode of honor, on the Day of Judgment; verily, He is All-Hearing and answers the supplications.

Allaah Knows best.

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