Women wanting to legally prohibit their husbands from marrying a second wife

[DefendingIslam]

Salam Alaykum,

I have been asked a question as to how a woman would go about legally restricting her current husband from marrying a second wife.

I know that if the man says that he will not marry a second wife and this is witnessed by two male witnesses then he is morally responsible to follow through on his pledge, though it is not legally binding on him.

However, some people have asked about what would constitute an "Islamically legally binding" matter. Some have thought of setting up a condition saying "Whenever you marry another lady while you are married to me, you are immediately divorced from that lady".

Now I do not know if such a condition is legally binding and whether it would have an effect every time this man would want to marry another woman. So there are two situations:

1. If it is not legally binding, then it is not and the matter is over.

2. If it is legally binding, then what would happen if a man before he ever gets married, says that "whenever he gets married, he is immediately divorced from the woman he has married". Would he ever be able to get married then?

Note: I do not want this to become a discussion on why a man may want to marry a second wife, or why women are accepting or not accepting of such things and whether it is correct or not for them to think in such a way. The question is specific to how such a condition/conditions would play out if a man were to pronounce them.

[Sulaiman84]

brother,

I think the issue has already been discussed in a little detail in another thread (I think it's in one of those polygamy threads) where there's a contract between the spouses with the condition of the husband not marrying a second wife and its bearing in Hanafi fiqh.

I think bro Colonel posted on it, among others.

[DefendingIslam]

^

I read this among one of your posts, but from what I know this is a moral bearing upon him.

So what happens is that from the information people have mentioned to me, many men blatantly deny that they ever agreed to a general restriction even if they wrote it down and signed it. So such a person can never be said to be mindful of what constitutes a "moral obligation". This is why some have asked about what would be a "legal obligation" to the point that any second marriage would be null and void, and what sorts of words or writings would invalidate a future second marriage.

[Sulaiman84]

From what I remember from Khaalah Soupy and Colonel's post is that making those types of conditions in a marriage contract then breaking them can be atoned for through payment of kaffaarah and at the end of the day the the nikah is still intact.

I could be mistaken, though.

Making marrying another woman as a condition of divorce from the husband is something else. I don't know what the Ulamaa have said about it. I've read in books that a husband can basically make all sorts of weird conditions for divorce. Like, "If you don't talk to me by tonight you're divorced" or "If you put too much salt on the food you're divorced". etc so making that as a condition doesn't seem far fetched.

But I'm wondering, what type of miskeen man would accept that as a condition?

[DefendingIslam]

I've read in books that a husband can basically make all sorts of weird conditions for divorce. Like, "If you don't talk to me by tonight you're divorced" or "If you put too much salt on the food you're divorced". etc

If a man were to say such a thing then obviously the divorce would come into effect when the condition is there.

What i was wondering is making a condition with respect to the dissolution of a marriage that has yet to take place, since many women think this is the only way to stop this matter from coming up and whether this is a legal restriction.

What would have been mentioned in brother Colonel's posts is a general type of condition that is morally binding but does not legally come into force since the condition is about something mubah in itself (like promising to stay in a certain country after marriage, for example). So my question differs in that what would be the status of a conditional divorce for a marriage that has yet to take place.

[Sulaiman84]

Oh ok, I see what you're getting at now.

We would need some ulamaa intervention on this one. I'm also interested in learning about this.

[Sulaiman84]

DefendingIslam, you've successfully picked at my brain. Now I can't rest.

This is what I found so far in relation to the topic:

Delegating the right to divorce to the wife (tafwidh)

http://qa.sunnipath.com/issue_view.a...D=2887&CATE=11

Tying divorce with a condition: divorce will occur when the condition takes place

http://qa.sunnipath.com/issue_view.a...D=3680&CATE=11

If I can't find any specific answers, I'lll have to call Mufti Sahib after Ramadhan .

[DefendingIslam]

The second Fatwa you posted is from Mufti Muhammad bin Adam, in which he says:

However, if he said: �whenever you lie, you are divorced� then whenever you lie, one divorce comes into effect. Thereafter, if he takes you back and you lie again, once again a divorce comes into effect until it reaches three divorces.

After three divorces, if you were to re-marry your husband (after marrying someone else), the oath will be considered nullified and void, hence no further divorce takes place in case of lying. (al-Fatawa al-Hindiyya, 1/415)

There is something else I read at askimam.org concerning something similar to the question I asked:

http://askimam.org/fatwa/fatwa.php?a...d3a899642c9d1d

Question
I needed to know if this will be considered a never-ending vow of divorce and how one can get out of it by offering Kaffarah etc.
If due to some absurd reason if a person X who is single and makes a statement that everytime he gets married then he is divorced or everytime he performs nikaah he is automatically divorced then can he ever get out of such a never-ending divorce statement about the future? Remember he is not married at the time.
Will he not be able to marry anyone now for the rest of his life? Is there anything he can do to get out of this problem?

Another point is that he is not 100% sure whether he spoke those words. He knows for sure that he had lot of those thoughts in his mind but does not remember for sure that while he was thinking whether he uttered the statement or not.

Please answer for both situations (1. if he did say it and 2. if he is not sure). Jazzak Allah.

Answer
A person who utters a statement that everytime he gets married or everytime he performs Nikah, he is divorced and thereafter get married, his wife will be divorced. The only way for him to get out of such a predicament is that he should go up to a third person (z) and tell him about the statement he has made and his only way to get married without divorce is that a third person gets him married to a girl without him knowing and after he comes to know about it he consents to the Nikah, the Nikah will take place and there will be no divorce.

If z gets this person married, without this person’s permission, thereafter he comes to know about it and consents to it the Nikah will take place and there will be no divorce. (Raddul Muhtaar vol.3 pg.348)

If a person is not sure if he uttered the words of divorce or any statement pertaining to divorce, it will be as though he did not utter those words, and if he gets married, no divorce will take place.

and Allah Ta'ala Knows Best

Mufti Ebrahim Desai

So it seems the statements I asked about in my original post may have some effect, but perhaps an 'Aalim can elucidate as to how the matters would work out.

Another matter is that of course many women would seek to put their husbands in a situation where they cannot marry a second wife not only morally but also legally, and many men would look for ways to circumvent such restrictions if they had ever agreed to such restrictions in their first marriage.

So I am only discussing about the legal validity of such matters, since it is known that "mutual trust" would probably not exist where one side is trying to find legal ways to stop someone from doing something, and the other side is trying to find loopholes in such legal restrictions. So it could be possible for some legally binding matter to be drafted by the wife in such a manner that the husband cannot marry a second wife, but if the husband really wants to do this anyway, he will look for legal ways out of it. And the wife can look for legal ways to counter this, and the matter can perhaps go on and on with each side trying to outdo the other. But my questions are about the legal ruling on matters not what "trust' or "love" would make us do in the context of marriage.

[The_Humble_One]

I also had this question about putting restrictions in a marriage contract. Do condidtions such as these legally mean anything?

[Sulaiman84]

But my questions are about the legal ruling on matters not what "trust' or "love" would make us do in the context of marriage.

You got me scratching my head on that one.

First thing coming in my head is how many of these conditions actually take place? It's sounds rare.

Secondly, like what brother TheHumbleOne mentioned, what's the validity of such conditions?

And lastly, I can't help but think of a man who entered into such a contract who's extremely lustful. There's no win for him because it's either divorce (if the contract's actually valid) or probable sin.

But I'd like to find out because it sounds like something heads in America would do.

What a pickle......I'll have to bug Mufti Sahib.