THE FLAWS IN A FATWA BY A U.K. STUDENT The following is a question posed by a Brother from London, U.K, and Mufti Ebrahim Desai s fatwa, followed by the comments of a U.K. Madrasah Student. THE QUESTION TO MUFTI EBRAHIM DESAI Dear respected Mufti sahab, I need guidance on my marriage which I am not sure if nikah is still valid or not. May Allah ta'ala grant you full Jaza khair for your help in deen to the ummah Ameen. My marriage started 8 years ago where I wanted to lead a life keeping Allah ta'ala and His pleasure as my priority. Faced a lot of problems from in law's side from start of the marriage till now. I live in London and follow an Islamic attire whilst the family I married was from sub continent where modern clothes of today's times are preferred. The short and long of it is that my wife (or ex wife as I don't know) has said 'kufriya kalimat' like she doesn't believe in shariat or she will not follow what is in Islam because it doesn't sit with today's times or even at a point she said leave matters to me I will deal with Allah ta'ala when it comes to it don't tell me what is right in deen and what is wrong etc. She also has been to sooth sayers and fortune tellers seeking knowledge of future and continuing to do it. 1 / 6
Secondly, she used to wear niqab. She started doing that after many weeks of targheeb and taleem. Her sisters had managed to persuade her not to live like a molvi! We had arguments and she expressed her anger towards the deen and said she wanted to remove niqab because in London we should be integrating into the society. Kids are growing and they ask me questions why do I wear the face cover etc. Despite me educating her and kids she remained adamant to remove niqab. I said to her once that if you do remove niqab I.e. live a life without niqab the you are free from me meaning she is not going to remain my wife. She has now started to live without niqab and continue to do so. My question here is also that is our nikah now invalid and due to her continuing to be without niqab and breaking of my condition. The 'kufriya kalimat' which she has uttered and continues to believe in her ways, where would this whole marriage stands. Also to add, I have felt the lack of barakah in life, in rizq and work in fact in the entire life dealings going downhill when I am with her and when I am away from her with a life of zikar, tilawat of Quran, tahajjud etc with taufiq if Allah ta'ala, life feels back on track and help of Allah ta'ala becomes feel able. Also to add that previously I had given one talaq and then had ruju'a to resume marriage. There also has been one occasion when our son was only one and she wanted to leave the house forever due to not liking the lifestyle where I had said that if you step outside this house then this marriage is null and void and you would be free to go. Things had calmed down later that day but indeed she had to leave the house and go out for various reasons. Would that also have triggered the talaq? I am not living with her anymore due to serious issues becoming unsolvable. She wants to live a liberal life and I cannot go against the commands of Allah ta'ala. I apologise for any inconvenience due to my email or writing style. Can I seek a clarification that is this nikah or marriage still intact or there is nothing there anymore. We are now living our own lives. I still see the kids and have been treating their mother as my non mahram. Kindly guide. Wa salaam and requesting your duas. AbduRehman. London UK. 2 / 6
(End of question) MUFTI EBRAHIM DESAI S FATWA Answer In the Name of Allah, the Most Gracious, the Most Merciful. As-salāmu alaykum wa-rahmatullāhi wa-barakātuh. You refer to three instances of divorce without reference to the sequence of the events. Nevertheless, you state that you gave your wife one talaq, then did ruju.[1] You then stated, if you do remove niqab I.e. live a life without niqab the(n) you are free from me. Since she started living a life unveiled, your condition has been fulfilled resulting in another irrevocable talaq (baain) taking place.[2] You also state that you uttered the words, if you step outside this house then this marriage is null and void and you would be free to go. You state she left the house after the situation had calmed down. This does not constitute a divorce.[3] Therefore, two divorces have taken place and your wife is separated from you. 3 / 6
You are no longer husband and wife. You are correct in your treatment of her as a non-mahram. You should continue to maintain a good relationship with your children. And Allah Ta āla Knows Best Saad Haque, Student Darul Iftaa New Jersey, USA Checked and Approved by, Mufti Ebrahim Desai (End of fatwa) THE STUDENT S COMMENTS Assalamu alaykum Below my comments (A-F) is a fatwa from Mufti Ebrahim Desai s website.i request The Majlis to read through this fatwa and comment on whether my observations below are correct: (A) Common sense would suggest that the question should have been answered from the kufr, rather than the Talaq perspective, because the repercussions are greater. (B) For example, from the question, it is apparent that her kufr statements took place prior to issuing of Talaq, in which case the marriage was invalid before Talaq. The Talaq issue is therefore irrelevant. (C) The major issue I have with this answer however is that the questioner will now be left with the impression that his ex-wife is still a Muslim, albeit a bad Muslim, and therefore although he may consider the children s association with her as a bad thing, he will not realise that his children should not, in fact, be living with her at all, as her kufr beliefs will rub off on the children. (D) I feel this fatwa is a dereliction of a Mufti s duty in providing the relevant guidance to the questioner. 4 / 6
(E) I also feel that Mufti Ebrahim Desai has adopted unnecessary caution in withholding from commenting on the issue of the kufr statements of the lady. (F) I understand that we should not readily put a fatwa of kufr on someone and therefore in this instance, Mufti Ebrahim Desai could have still answered the issue at hand but qualified the answer by stating: IF your wife made these statements, then this is kufr. (G) I do not know why this answer has blatantly ignored the fundamental issue of kufr and jumped on the secondary, but irrelevant issue of Talaq. Either there was a genuine oversight on Mufti Ebrahim Desai s part, which is understandable or, as is the case with a lot of Muftis today, he decided to fudge the difficult but obvious issue, by only answering the secondary issue, without considering the repercussions of doing so. Imagine the questioner decides to remarry the woman on the understanding that he has not issued 3 divorces, yet not realising that he cannot marry her as she has made statements and holds beliefs that have taken her out of the fold of Islam. Sadly, there is a lot of fudging and skirting around the issues by Muftis nowadays. (End of the Student s comments) COMMENTS OF THE MAJLIS All the observations and comments of the Student are correct. The Fatwa has ignored the primary aspect of kufr of the woman which renders the Talaaq issue irrelevant. By having ignored the kufr of the woman, and emphasizing only the validity of the two talaaqs, the impression conveyed by the fatwa is that a reconciliation can take place merely by renewal of 5 / 6
Nikah. But this is palpably baseless. Nikah with this murtaddah will be valid only if she renews her Imaan. The Student has adequately commented hence further commenting will be superfluous. 4 Jamadith Thaani 1439-21 February 2018 6 / 6