#1130: On The Wife Whose Husband Absconds Or Is Declared Missing

Assalamualeikum warahmatullah wabarakatuh
If a lady didn’t see her husband or hear from him for many years and decide to remarry.
Is it compulsory that she must still divorced the husband she didn’t not see or hear from for many years before remarrying?

ANSWER

Wa alaikumu salam wa rahmatullahi wa barakatuh,

May Allah ease our affairs and grant us the best way out for our affairs. As regarding your case my dear sister, with the help of Allah, although the question is not very explicit regarding the situation surrounding the absence of your husband. However, this situation could either be a case of abscondment or a case that he is Missing. Abscondment in that, that you are aware and sure that he is alive but he has never made effort to contact you or send you a message. Or it might be that he is missing, such that, you are completely unaware about his whereabout and you are not sure whether he is dead or alive because he has not contacted you, nor has he sent a message to you and this is unlike his usual self before you lost contact with him.

If your case is as described in the first instance mentioned above, then the scholars have categorized this under the ruling of a woman whose husband has taken an oath not to have sexual relations with his wife. In that case you are expected to reach out to his relatives or elders from your family and his family to try to make him come back. If he does not obey them, then, you should take his case to a shariah court that will compel him to either come back to you or divorce you if he is no more interested in the contract. If he still refuses to come, only then can the Qaadi (Shariah Judge) invalidate the contract between you and your husband. This is because, keeping her just like that without conjugal relationship or daily upkeep is a source of harm to her and the prophet alaihi salam has said in the hadith of Abu Sa‘id al-Khudri;
“Do not cause harm or return harm”.

Also, it is a fundamental juristic principle of the shariah that: “…the harm should be removed”.

As such, this harm cannot be removed without invalidating the harmful contract.

Imam Ibn Taymiyyah -rahimahullah- has mentioned in his fataawa Al-kubra: “…Harm to occur to the wife as a result of not having intercourse with her is a valid reason for invalidating the marriage contract. This is same either it was intentional or unintentional from the husband…”

After that, you are required to return his mahr back to him because unlike in the case where the husband pronounces divorce, the woman is expected to give back half of the mahr. In this case, the scholars have likened this invalidation to khul‘ (a case where divorce is initiated by the wife) as such she will have to return the mahr in full.

Secondly, there will not be any waiting period for you if marriage between you have not been consummated. Allah ta’aala said;
“O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no ‘Iddah [divorce prescribed period] have you to count in respect of them. So, give them a present, and set them free (i.e. divorce) in a handsome manner”
(al-Ahzaab 33:49)

If the marriage has previously been consummated, then you are not required to return anything of the mahr back to him but you will have to immediately commence the iddah of one who was divorced by waiting for three menstrual periods. After these elapses, only then are you free to initiate any fresh marriage contract with another person.

If the situation is such that he is missing, then, you will still have to contact a shariah court or trusted elders of your family or community that will help you search for his whereabout in a thorough manner. If he is confirmed dead, then you will have to observe the waiting period of four months and ten days. And this period counting begins from the day he died if the exact date can be confirmed. Otherwise, the counting starts from the day the confirmed news about his death reaches you.

If however, the search came out negative such that nothing can be said about him still being alive or dead, then in that case, you are expected to stay for a period that is enough to legally pronounce him dead. The scholars have seriously differed regarding the length of this period.

The true knowledge lies with Allah. The closest narration about this issue is the narration Imam Malik -rahimahullah-recorded in his Muwataa about the verdict of Umar bin Khattab that the wife of a missing person will wait for four years and then observe the Idda of four months and ten days. Same verdict was reported from Uthman, Abdallah ibn Umar and Abdallah ibn Abbas.

However, most of the commentators of the Muwatta are of the opinion that this was an Ijtihad of the companions considering the means of communication and movement during their period. Based on this most scholars of recent times have gone with the opinion that the matter should be refereed back to a competent shariah Judge that resides in the location where the person is missing to determine the period within which such a person can be legally proclaimed dead considering the situations of that location at that time. Once this period elapses, you are still expected to again observe the waiting period of four months and ten days. The iddah of the widow. Only after this are you legally allowed to enter into any other marriage contract.

If however, it becomes difficult for you to wait for the time the Judge has stipulated for you to confirm his death either because of conjugal rights or difficulty of having what to take care of yourself if he has not left anything for you, or you fear falling into fitna and sin, then you have the choice of asking the Judge to invalidate the contract between you and him. In that case you will be required to observe the iddah of divorce which is the period of three menstrual cycles.

The renowned Maliki Jurist, Imam al-Dasouqi -rahimahullahu- mentioned:

“The missing person will be given a period of four years to return (by the courts) if he left her maintenance. However, if he did not leave any wealth, then she will be able to demand for separation instantly on the basis of not receiving her financial support.”
(Hashiya al-Dasouqi, 2/479)

Likewise, And the ruling of returning or not returning of mahr also applies in this situation as the case may be regarding consummation as we have discussed above.

And Allah knows best.

Barakallahu Fikum
Jazakumullahu Khayran

Abū Hafs

5th Dhu Al-Qa’adah, 1442AH

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