He is captured by the opponent as POW. Family and his country think he is dead.
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:
As
Salaam Aleikum wa Rahmatullahi wa Barakatuh.
Dear
Brother In Islam, Assalamalikum.
My
question is:
Happily
married couple, without any children. Husband is a military officer, due to war
he is on the duty at line of control. He is captured by the opponent as POW.
Family and his country think he is dead. Bride is young so the family gets her
married to another man. She is happily married and expecting a baby from her
2nd husband. One day the other county release the POW and he (the first
husband) returns home. How can we resolve this issue? Does the bride should go
back to her first husband or she should stay with the 2nd husband?
(There may be some grammatical and spelling
errors in the above statement. The forum does not change anything from
questions, comments and statements received from our readers for circulation in
confidentiality.)
Answer:
First Husband returns
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 no one (no idol, no person, no
grave, no prophet, no imam, no dai,
nobody!) worthy of worship but Allah Alone, and we bear witness that
Muhammad (saws) is His slave-servant and the seal of His Messengers.
A person who disappears and is presumed dead is what is
known as a ‘mafqoodh’ in Islamic Jurisprudence. If the person is presumed dead, and his wife marries again, and
after some time the first husband returns; Shariah Law stipulates that the
second ‘nikaah’ of the woman will automatically be annulled and the first
husband has a bigger right to take his wife back. The ‘nikaah’ that was performed with the first husband will be
deemed valid and there is absolutely no need to perform the nikaah again if the
couple wish to live together as husband and wife.
If after studying the conditions, the first husband does
not wish to take his wife back, he must pronounce divorce upon her if he wishes
to separate from her, and after fulfilling her ‘waiting period’ or ‘iddah’ of
divorce, the wife is free to marry the second husband or anyone else she wishes
with a brand new ‘nikaah’ being performed.
If the first husband wishes to take his wife back, but the
wife does not wish to continue their marriage, she must either ask the first
husband to divorce her or she may initiate a divorce proceedings against her
first husband in a Shariah Court.
The child born from the second marriage will be deemed
absolutely legal, will take the name of his biological father, and he will inherit
his biological parents and they will inherit from him.
Your
Question: Does the bride should go back to her first husband or she should stay
with the 2nd husband?
As soon as the ‘mafqoodh’ or the person who had
disappeared returns, the second marriage of the woman will automatically and
immediately be annulled, and the first husband has a bigger right to demand his
wife back.
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