With reference to your query, please be informed as follows:
- As a form of judicial procedure, faskh al-nikāḥ (annulment of marriages) is circumscribed by a very clear and precise set of rules, observation of which produces a valid annulment, and failure to observe which brings the guilty party within the category of the hell-bound judges mentioned in the ḥadīth:
(القضاة ثلاثة: واحد في الجنة، واثنان في النار. فأما الذي في الجنة فرجل عرف الحق فقضى به . ورجل عرف الحق فجار في الحكم، فهو في النار. ورجل قضى للناس عن جهل، فهو في النار) رواه أب و داود ،والترمذي، والنسائي ومالك، والحاكم وصححه .
“Judges are of three categories: one in Paradise, and two in Hell. As for the one in Paradise, he is a man who knew truth and judged by it. The man who knew truth but judged unjustly will be in Hell. And the man who judged between people in ignorance will be in Hell.” (Abu Dāwūd, Tirmidhī, Nasāʾī, Ibn Mājah and Ḥākim with authentication.)
- The failure to observe proper procedure is seriously exacerbated if the conduct of the organization and ʿālim in question was in any way influenced by an aversion for the husband’s second marriage. Ḥaḍrat Mawlāna Rashīd Aḥmad Gangohi, in a fatwa endorsed by about 50 other ʿulamā declared it to be an act of Kufr to have aversion to the practice of polygyny after acknowledging it to be Allah’s law and the Sunnah of His Messenger (ṣ) (Fatāwā Rashīdiyyah 212).
- The procedural flaws in the faskh procedure as outlined in your question are:
- the failure to test and verify the claim of irreconcilable differences through the required Sharʿī methods of shahādah (testimony), iqrār (acknowledgement) and yamīn (judicial oath);
- the failure to hear the husband’s perspective of the issue;
- the failure to establish that the husband was not guilty of taʿazzuz (recalcitrance) or tawārī (hiding) before issuing the ruling of faskh in his absence.
- About the need for valid and proper testimony, especially in matters of marital conflict, Allah says:
﴿وأقيموا الشهادة ،لله ذلكم يوعظ به من كان منكم يؤمن بالله واليوم الآخر، ومن يتق الله يجعل له مخرجا﴾ (الطلاق :٢)
And establish testimony for Allah. That is what is instructed to such of you as believe in Allah and the last day. And to those who fear Allah, He grants a way out. (65:2)
- The negative consequences of haphazard procedures in judicial practice (in which faskh belongs) is alluded to in the ḥadīth:
لو يعطى الناس بدعواهم لادعى رجال أموال قوم ودماءهم، لكن البينة على المدعي واليمين على أنكر .
(حديث حسن، ه)
“If people had to be given (what they demand) on grounds of nothing but their claims, men would claim the property and lives of others. But (the rule of the Sharīʿah is that) the burden of proof lies on the claimant, and the oath upon the denier.” (Bayhaqī)
- The obligation for both sides to be heard is rooted in the advice which RasūluLlāh B A ص عليه وسلم gave to Sayyidunā ʿAlī ibn Abī Ṭālib عنه A \ر when he dispatched him as a judge to Yemen:
إن الله سيهدي قلبك ويثبت لسانك. فإذا جلس بين يديط يديك الخصمان فلا تقضين حتى تسمع من الآخر كما سمعت من الأول، فإنه أحرى أن يتبين لك القضاء . (رواه أبو داود)
“Allah will guide your heart and keep your tongue firm. When the disputing parties sit before you, do not pass judgement between them until you have heard from the second party as you have heard from the first, for that is more likely to bring you clarity in judgement.” (Abū Dāwūd)
- In summary, when a judicial process has been as one-sided, flawed and deficient as the one described in your question, we fail to find reason to uphold its validity.
- Accordingly, in our opinion, the marriage still subsists.
- A wife who was awarded a faskh through a process and improper as this would be guilty of zinā should she contract a subsequent marriage to any party other than her husband in the first—and only rightful—marriage.
واﷲ تعالى أعلم
And Allah knows best.
MT Karaan
