Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

Assalamu Alaikum Brother,

My question is about the second marriage according to Islamic Sharia, in the west. I live in USA and me and my entire family is going through with a serious (almost a nervous breakdown) problem due to the un-Islamic law here. My brother is 46, male, married with three kids. He wants to marry a women who is a divorcee and also has three kids. He wants to do Nikah with her to accept her as his second wife, without divorcing his first wife. Now all three of them (my brother, his first wife and his would be wife) have agreed upon this second marriage but the problem is the un-Islamic law in the USA that is not just prohibiting him to do this second Nikah but in fact, for the sad part, compelling him to divorce his first wife (un-wantedly), in order for him to marry the second one. Because without divorcing first wife, if he perform a plural marriage (meaning keep both wives at the same time) he can be sentenced to jail for that. I know you may want to ask this question that why it is so important to do this second Nikah. Well, I would say that please put this issue aside for now just for the convenience of Fatwa and make this an example case.

So my question is that under certain circumstances, if a Muslim wants (or has) to follow this Sunnah of Prophet Mohammad P.B.U.H. and the un-Islamic and against the Sharia law of this country prohibits him to perform second Nikah and compels him to perform a highly discouraged act of divorcing his current wife first, to do so, will it be allowed for him to process the divorce paperwork with first wife, just for the hack of fulfilling the legal aspect while they both keep their intentions very clear that they do not want and not going for a divorce in reality and they will remain Husband and Wife as per Islamic Sharia. If they do it this way, will it still end up in an un-wanted divorce anyway??

If it will end up in a divorce anyways, how will it justify if this Fatwa will leave no option for him but to sadly and un-wantedly divorce his first wife in order to marry the second, just because they live in USA?

It is not possible here to keep two marriages a secret and anyone (out of jealously or any other reason) could complain at any stage and one can get arrested for keeping plural marriages. But the only defense is that what I have mentioned above, is by doing that divorce paperwork, with the intention of not divorcing.

Please help me, my family and other members of muslim community by providing answer to this question. Thanks.

Wassalam!

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Answer:

Polygamy punishment in west

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is none worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

If the ‘law of the land’ one has chosen to reside in accepts the unlawful as lawful, and declares the lawful as unlawful….where the indulgence in the abomination of ‘riba’, or the consumption of the flesh of swine and alcohol, or the indulgence in gambling, or the concept of ‘consentual sex’ and fornication and adultery is widely regarded as acceptable, if not outright lawful …….for them to say that the practice of polygamy is illegal and punishable by the law of the land is absolute injustice and hypocrisy…… and that would be an utter and absolute understatement!!!

Such laws and such societies should only be expected from people who openly declare that they prefer man-made laws to laws made by the Creator!

Be as it may, if one has chosen to reside in such a land and in such a society, one is obviously bound by those laws as long as he chooses to live in their lands.

Your Question: …..will it be allowed for him to process the divorce paperwork with first wife, just for the hack of fulfilling the legal aspect while they both keep their intentions very clear that they do not want and not going for a divorce in reality and they will remain Husband and Wife as per Islamic Sharia. If they do it this way, will it still end up in an un-wanted divorce anyway??
It would simply not befit and behove the character of a true believer in Allah and the Last Day to lie. Allah Subhanah commands the believers to always speak the Truth and give witnesses on the side of the Truth, even if it be against one’s own self.

Allah Says in the Holy Quran in Chapter 4 Surah Nisaa verse 135:

O ye who believe! Stand out firmly for justice as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts) lest ye swerve, and if ye distort (justice), or decline to do justice; verily Allah is well-acquainted with all that ye do.

In light of the above absolutely clear Command of Allah Subhanah, and the various teachings of the Messenger of Allah (saws), it would simply not befit the character of a true believer to lie on a petty issue to gain a small advantage for himself in this world….that would be manifest dishonesty and a sin in the Sight of Allah Subhanah.

Sahih Muslim Hadith 6306 Narrated by Abdullah ibn Mas'ud

The Prophet Muhammad (saws) said: “The person tells the truth until he is recorded (with Allah Subhanah) as truthful; and he tells a lie until he is recorded (with Allah Subhanah) as a liar.”

Besides, in matters concerning especially marriage or divorce, even if one were to lie or if one were to joke or jest….it would be regarded as serious in the Sight of Allah Subhanah! There is no such thing as a fake marriage or a fake divorce in Shariah…if, Allah forbid, one were to process divorce against one’s wife in marriage, even if it were only a lie and a means to circumvent the law of the land, a divorce would legally be established between the couple in the Sight of Shariah Law and in the Sight of Allah Subhanah.

Sunan of Abu-Dawood Hadith 2189 Narrated by Abu Hurayrah

The Prophet (saws) said: ‘There are three things which, whether undertaken seriously or in jest, are treated as serious: Marriage, divorce and taking back a wife (after a divorce which is not final).’

Your Question: Please help me, my family and other members of muslim community by providing answer to this question.

If one is married and wishes to exercise the lawful option of marrying another wife, and the one and only thing stopping him from exercising his lawful option is the law of the land…..he is obviously within his rights to move or migrate to another land where the practice of polygamy is not considered illegal or punishable by law.

Thus under the given conditions, the options available to the brother are:

1. Remain married to his first wife, marry the other woman as his second wife, and be prepared to contest and challenge the unjust law of the land in their courts, if and when the case is taken to a court.
2. Migrate to another land where one can legally practice polygamy.
3. Remain married to the first wife, and leave the thought of marrying the other woman as long as he chooses to live in the land.
4. Divorce the first wife, and marry the other woman.

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only Source of Strength.

Your brother and well wisher in Islam,

Burhan