Short answer: In the case of wife became muslim but her husband does not (or vice versa), some scholar said the marriage is invalid, but some said the marriage is still valid and can be continued.
Explanation:
Some of the problem that emerge, often in minority muslim teritory, but
also happen di the majority muslim area, is that many wives became muslimah and
the husband chooses not to (or voce versa). The problem became more complicated
when they already in happy marriage for long time, both still love each other,
and even have kids. Many Islamic scholar said that in this case, their marriage
became invalid instantly after the wife took the syahadah. Knowing that, many women
afraid of becoming muslim because they are not ready to be widow, afraid of
apart from her husband, and the worst scenario is she has to leave her kids
behind.
In case like this, is the status of invalid marriage is ijma’, or
is there any other way, so the women can both embracing islam and still with
her family?
Before answering this question, Yusuf a-Qardhawi said that he was one of
the scholars who said that the women who convert to islam must divorce her
husband and their marriage is invalid immediately or at least after she finished
of iddah period. That is because being islam is separating both, and muslim
can’t be in protection of kafir. As it is forbidden for women to marry
non-muslim, it is also forbidden to stay marriage with them. Same case for the
husband who choose to embracing Islam when her wife does not.
But after learning more of this case, Yusuf al-Qardhawi citing Ibnu
Qayyim who said, there are at least 9 opinions regarding this matter.
1.
After the women convert to muslim, she is
separated from his husband immediately, and there is no way for the husband to
go back to her except they convert together at the same time. This opinion
belongs to many tabi’in, Jabir bin Abdullah, Ibnu Abbas, Hasan al-Bashri, and
many other.
2.
Abu Hanifah said, after one of the couples
embraced Islam, he/ she ask his/ her mate to also embracing Islam. If that
offer accepted, then their marriage continues, but if rejected then they
separated without iddah period.
3.
Imam Malik said, if the women convert and the
man does not, it depends in the if they are consummation their marriage (dukhul)
yet. It not yet, then they separated immediately, if they did, then the husband
has time in the iddah period to convert, if he does not, then they separated.
If the case is the husband convert to islam when the wife does not, then the
husband asks her to convert to islam, if she rejected it, then they separated,
weather they consummate their marriage or not yet.
4.
Ibnu Sabramah said, if the wife embraced Islam
before the husband, then they separated immediately, if the husband converts to
islam first, then it depends on whether the wife embraces Islam or not in the
time of Iddah.
5.
Imam Auza’i, az-Zuhri, Laits, Ahmad, Syafii,
and Ishaq said, if one of the them (either husband or wife) embraces islam
before they consummate their marriage, then their marriage become invalid. But
if it is after, then one who not yet, has to embraces Islam in the period of
Iddah. If not, then they are separated.
6.
Hammad bin Salamah, Qatadah, and also Ibnu
Sirin said, the women can choose between separation or waiting the husband to
embrace Islam even tough it will need years. This come from the case judged by
Umar when there was wife who converted to Islam and her husband still a
Christian, Umar said, “if she wants, she can ask for separation, or she can
stay still with him.” This opinion is chosen by Ibnu Qayyim and also Ibnu
Taimiyah.
7.
Imam Ali judged such case by saying that the
husband has the right of her even though she already a muslim as long as they
stay in place when she embraced islam.
8.
They still in the status of marriage as long as
the judge/ government does not declare their separation.
9.
Daud bin Ali said, if the wife converted to
Islam while the husband does not, they still can live together but they can’t
have intercourse.
To sum up there are ulama who said that their marriage is invalid (this
is the more popular fatwa spread between muslim) and other said they can
continue their marriage.
The first fatwa based on QS al-Mumtahanah verse 10:
يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ إِذَا جَآءَكُمُ ٱلْمُؤْمِنَـٰتُ
مُهَـٰجِرَٰتٍۢ فَٱمْتَحِنُوهُنَّ ۖ ٱللَّهُ أَعْلَمُ بِإِيمَـٰنِهِنَّ ۖ فَإِنْ
عَلِمْتُمُوهُنَّ مُؤْمِنَـٰتٍۢ فَلَا تَرْجِعُوهُنَّ إِلَى ٱلْكُفَّارِ ۖ لَا
هُنَّ حِلٌّۭ لَّهُمْ وَلَا هُمْ يَحِلُّونَ لَهُنَّ ۖ وَءَاتُوهُم مَّآ
أَنفَقُوا۟ ۚ وَلَا جُنَاحَ عَلَيْكُمْ أَن تَنكِحُوهُنَّ إِذَآ ءَاتَيْتُمُوهُنَّ
أُجُورَهُنَّ ۚ وَلَا تُمْسِكُوا۟ بِعِصَمِ ٱلْكَوَافِرِ وَسْـَٔلُوا۟ مَآ
أَنفَقْتُمْ وَلْيَسْـَٔلُوا۟ مَآ أَنفَقُوا۟ ۚ ذَٰلِكُمْ حُكْمُ ٱللَّهِ ۖ
يَحْكُمُ بَيْنَكُمْ ۚ وَٱللَّهُ عَلِيمٌ حَكِيمٌۭ
Meaning: O believers! When the believing
women come to you as emigrants, test their intentions—their faith is best known
to Allah—and if you find them to be believers, then do not send them back to
the disbelievers. These ˹women˺ are not lawful ˹wives˺ for the disbelievers,
nor are the disbelievers lawful ˹husbands˺ for them. ˹But˺ repay the
disbelievers whatever ˹dowries˺ they had paid. And there is no blame on you if
you marry these ˹women˺ as long as you pay them their dowries. And do not hold
on to marriage with polytheistic women. ˹But˺ demand ˹repayment of˺ whatever
˹dowries˺ you had paid, and let the disbelievers do the same. That is the
judgment of Allah—He judges between you. And Allah is All-Knowing, All-Wise.
In this verse Allah at least said 4 things regarding
this matter:
1.
“-and if you find
them to be believers, then do not send them back to the disbelievers”. Allah
forbade the women to go back to their disbeliever husband.
2.
“These (women) are not lawful (wives) for
the disbelievers, nor are the disbelievers lawful (husbands) for them”. The
status of Islam made their relationship haram toward each other.
3.
Not only that, but Allah
also give the muslim permission to marry the muslim women if someone can pay
the dowries, “And there is no blame on you if you marry these (women) as
long as you pay them their dowries”
4.
In this verse Allah
also said “And do not hold on to marriage with polytheistic women”. That
verse clearly told the husband to not hold on to the marriage with the musyrikah.
Those are the arguments made by the first group
which many Islamic scholar hold on.
The second fatwa is the opposite of the first. Ulama like Ibnu Qayyim, Ibnu Taimiyah, and
also Yusuf al-Qardhawi, and many other said that they can continue their
marriage in hope that their mate will convert to Islam. Their fatwa is based on:
1. The fact that there is
no hadith telling us that the Prophet renew the marriage contract between the
sahabah-sahabiyah who just embracing Islam. Especially in the time of fath Makkah
with many disbelievers embraced Islam.
2. The fact that Prophet
Muhammad give permission to his daughter (Zainab) to continue her marriage to
his husband (Abi al-Ash) even though her husband was a disbeliever. Not only
that, but after his husband convert to Islam, the prophet did not ask them to
renew their marriage contract. All of that happened after Surah al-Mumtahanah
verse 10 revealed.
3. The decision (fatwa) made
by some sahabah such as Umar bin Khattab and Ali bin Abi Thalib. Umar bin
Khattab said in such case “It is up to the women, if she wants, she can ask for
separation or she can continue her marriage”. Ali bin Abi Thalib also said, “as
long as she is staying in the country that she converted in, then she can
continue her marriage”.
4. As for the verse
mentioned above (Mumtahanah verse 10), there are several misinterpretations
from the pro-separation according to pro-continuity. First, using this verse
as based argument is invalid because this verse explains about the cutting
relationship between the wife who convert to Islam and the husband who fought
her decision and also for the husband who his wife against his Islam. So, the illah
(cause) in this case is their mate will become burden to them and against their
decision to embrace Islam. Especially when the wife is the one who embracing
Islam. With this reason, the pro-continuity denied the argument of
pro-separation number 1st, 2nd, and also 4th. Second,
the permission of marry the women convert to Islam is when her real husband was
disbeliever and against her Islam. This proven by the fact that Prophet
Muhammad allowed her daughter (Zainab) to keep her marriage with her husband.
With this ground, they denied the argument number 3dh of pro-separation.
5. Islamic scholars have an
Ijma’ on the status of haram when muslim or muslimah wants to marry disbeliever,
but not in the case of the continuity of their marriage itself when they already
married before one of them embracing islam. In this case, is the status of
Islam make their marriage invalid? Islamic scholar is not in ijma’ in it.
So, to sum up, some
scholar believed their marriage is invalid, but some said they can continue
their marriage. In the case of has been questioned above, I choose the second
opinion. So, the wife can have both of her family and also hidayah of Islam,
and hopefully her husband will follow her path. Furthermore, if we answer with
the first opinion, and the wife decided not to embracing Islam because of that,
it will become more dilemmatic, since the sin of being disbeliever is far greater
than the sin of (let say for the sake of discussion) zina/ adultery.
Reference:
1. Yusuf
al-Qardhawi, Fi Fiqh al-Aqaliyyat, Cairo, Dar Suruq, 2001, page 105.
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