Answered by Shaykh Muhammad ibn Adam al-Kawthari
There was a Muslim family that I know of that was married. However, something took place that no one knows the reason behind it.Without any warning the husband just got up as he does every morning, had breakfast and said that he would be back after a few hours as usual.After the day was over the wife just thought that maybe he would be back soon, if not the next day. Another day followed then another and another until it turned into months and now years. There never was any communication from him at any time. He was wanted from the law but nothing concerned his arrest was ever uncovered.He was not in jail and no report of him being dead was ever heard. Now it has been 4 years since his last appearance and still no show. No call, no letter, no nothing. She of course has given up hope that he will ever return, if he is alive or in jail or whatever he could of at least wrote a letter by now.
The sister now wants to be free. What procedure would she have to go through if she wanted her freedom from the Muslim brother? Or has she already passed that point?
In the name of Allah, Most Compassionate, Most Merciful,
The original ruling in the Hanafi Madhhab for the wife of a missing person (mafqud) who abandoned her and disappeared in a way that there is no trace or news about him, and it is uncertain whether he is alive or dead, is that she must wait until the period where people of his age have passed away. This is estimated at when he reaches 90 years of age.
Imam al-Quduri (Allah have mercy on him) states in his al-Mukhtasar:
“If a man disappears in a way that his whereabouts is unknown, and it is uncertain whether he is alive or dead, then the judge (Qadhi) will appoint someone who will safeguard his wealth and claim his rights. He will also spend from his wealth on his wife and children and he will not be separated from his wife. When he (missing person, m) reaches the age of 120 years, a judgment of his death will be passed and his wife will enter the waiting period (after which she will be free to remarry, m)”.
Allama al-Gunaymi al-Maydani (Allah have mercy on him) states by commentating on the above:
“(When he reaches the age of 120 years), because it is obvious that it is impossible for him to live longer than this. This is the narration of al-Hasan from Abu Hanifa, and Imam Muhammad mentioned in his ‘al-Asl’ that the death of those who are similar to him in age will be considered. And this is the preferred opinion in the Madhhab…..They estimated this at 90 years and the Fatwa is on this opinion” (See: al-Lubab fi Sharh al-Kitab, 2/125-126).
Imam al-Haskafi (Allah have mercy on him) states:
“A missing person will not be separated from his wife even after four years have elapsed, contrary to the opinion of Imam Malik (Allah be pleased with him)” (Radd al-Muhtar ala al-Durr, 4/295).
The Messenger of Allah (Allah bless him & give him peace) is reported to have said:
“The wife of a missing person will remain his wife until it is known that he has died” (Sunan of Darqutni, with a weak chain of transmission).
In view of the above, it becomes known that the original ruling in the Hanafi Madhhab is that the wife of a missing person will have to wait until he reaches 90, after which she will be free to remarry by observing the waiting period (idda).
However, due to the immense difficulty and hardship in following this ruling and it being virtually impossible to act upon, the late Hanafi jurists (fuqaha) chose the opinion of the Maliki Madhhab in this issue.
Imam Ibn Abidin relates from al-Quhustani in his Radd al-Muhtar as saying:
“If the fatwa is given according to the Maliki School in the time of need, then there is nothing wrong in doing so” (Radd al-Muhtar, 4/296).
Therefore, the following is the verdict in the Maliki Madhhab for the situation in Question:
The wife of a missing person can move to the court of an Islamic Country for the dissolution of her marriage on the grounds that the husband has deserted her. If it is difficult to go to an Islamic Country then a committee of a few religious people that consists of at least one scholar of Islamic law can also carry this out.
She will report her case to the court and first prove her marriage with the missing person, and then establish that he is missing and has abandoned her. The court will search and look for him by exerting all possible means such as inquiring from friends and associates, advertising in newspapers and sending relevant people to places where it is presumed that he may be there.
If her husband is nowhere to be found even after relentless search and investigation, then the court will ask her to wait for a period of four years. If he fails to return within that period, then upon the demand of the wife, the court will pronounce him to be dead and she will be able to remarry after observing the waiting period (idda) of a widow (i.e. 410 days).
It should be remarked here that this period of four years will commence from the time of the court’s judgment, even if she was without her husband for a long time before actually reporting her case to the court.
If it is impossible for her to wait for four years and she fears that she will be involved in a sin, then it is not necessary to wait for four years, rather, the court (after searching) will have the jurisdiction to dissolve the marriage provided one year has elapsed from the time of his disappearance.
Similarly, if the woman does not fear committing a sin, but her husband did not leave her any maintenance (nafaqa) and it is not possible to receive it from his wealth, then in this situation, the court may dissolve the marriage, provided one month has elapsed in which she did not receive maintenance.
In the last two situations, she will observe the waiting period of divorce which is three menstrual periods.
It has been reported from Sayyiduna Umar ibn al-Khattab and Sayyiduna Uthman (Allah be pleased with them both) that the wife of a missing person will wait for four years and then observe the Idda of four months and ten days. The same has also been reported from Abd Allah ibn Umar and Abd Allah ibn Abbas (Allah be pleased with them) (See: Musannaf ibn abi Shayba & al-Muhalla of Ibn Hazm).
The Maliki jurist, Imam Dasouqi (Allah have mercy on him) states:
“The missing person will be given a period of four years to return (by the courts) if he left her maintenance. However, if 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).
The same ruling has also been mentioned in other Maliki works. See for example: Sharh minh al-jalil ala mukhtasar al-khalil, 2/385 & Sharh al-Sagir, 2/694. Also see, Imam Ashraf Ali al-Tahanawi’s al-Heela al-Najiza.
What if the husband returns?
One of the very important questions that arise here is what is the ruling concerning the situation where, after the courts judgment and the woman remarrying, the husband returns? Will she be allowed to remain with her second husband or will she be ordered to go back to her first husband?
A group of classical scholars are of the view that in the case of the missing husband returning, the woman will be returned to him and considered to be his wife. This has also been related from some of the Companions such as Sayyiduna Ali, Sayyiduna Uthman and this is also the opinion of Imam Abu Hanifa (Allah be pleased with them all).
However, the opinion of Imam Malik and the view adopted in the Maliki and Hanbali schools is that if he returned before the consummation of her second marriage, then he may take her back, but if the second marriage was consummated, then she will remain in that marriage (al-Mudawwana, al-Kubra, 2/91).
This ruling has more relevance in the situation where the woman was separated from her husband due to not receiving her financial support, as this separation is regarded to be a divorce. In the case where she waits four years, contemporary scholars mention that there is nothing wrong in following the Maliki Madhhab in that she may stay in her second marriage even if the missing person returns, provided the marriage was consummated.
In conclusion, the sister in question should take her case to the court of an Islamic country or a committee of religious people that consist of at least one scholar. If they separate her from her husband in the manner outlined above, then she will be free to remarry.
And Allah knows best
Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK
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