A second wife’s condition upon husband not to return to the first wife
Fatwa No: 35434

  • Fatwa Date:5-5-2011 - Jumaadaa Al-Aakhir 2, 1432
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Question

I am the father of two children whose mother I divorced because of problems. When I married another wife, the latter stipulated a condition for me not to return to the first wife. If I return to my first wife, what is the Sharee‘ah (Islamic law) ruling on the condition of the second wife?

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, is His Slave and Messenger.

 

If the second wife stipulated upon you not to return to the first wife and if you do so, she would be divorced; then, you have to fulfill this condition because it involves the interest of the wife. Ibn Qudaamah  may  Allaah  have  mercy  upon  him divided conditions into three kinds, “First: those conditions which must be fulfilled. They are the conditions which result in her benefit and interest such as stipulating upon him not to live in a home or a country other than hers or not to marry another wife or to have sex with female slaves. According to Imaam Ahmad  may  Allaah  have  mercy  upon  him he must fulfill these conditions; otherwise, she has the right to annul the marriage contract.”

It is reported that this was the opinion of ‘Umar ibn Al-Khattaab, Sa‘d ibn Abi Waqqaas, Mu‘aawiyah and ‘Amr ibn Al-‘Aas  may  Allaah  be  pleased  with  them. It was also adopted by Shurayh, ‘Umar ibn ‘Abdul-‘Azeez, Jaabir ibn Zayd, Taawoos, Al-Awzaa‘i and Is-haaq  may  Allaah  have  mercy  upon  them. This opinion is evidenced by the Hadeeth (narration) in which the Prophet, sallallaahu ‘alayhi wa sallam, said: “The worthiest conditions that you should fulfill are those by virtue of which sexual intercourse with a woman is made lawful for you ((i.e. the marriage contract).”

This is the ruling if the ‘Iddah (waiting period) of the first wife has ended or if she has been observing ‘Iddah of an irrevocable divorce. However, if the first wife was observing ‘Iddah of a revocable divorce; then, it is impermissible to stipulate such a condition because she has the status of a wife. The Prophet, sallallaahu ‘alayhi wa sallam, said: “It is not lawful for a woman to ask for the divorce of her sister (co-wife) in order to have everything for herself.” [Al-Bukhari] The Prophet, sallallaahu ‘alayhi wa sallam, also said: “What is the matter with those people who set conditions which are not stipulated in the Book of Allaah? Whoever imposes conditions which are not in the Book of Allaah, their conditions will be invalid even if they set a hundred conditions.” [Al-Bukhari and Muslim]

Allaah Knows best.

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