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Divorce before consummation but after couple enjoys privacy

Published: 24/08/2011 01:36:00 PM GMT
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I heard that if a man divorces his wife before consummating the marriage with her but after enjoying privacy with her, then it is as if he has consummated the marriage with her and all the rulings of divorce after consummation apply. Is this true? What is the proof for it? Doesn't it contradict verse 49 of Sûrah al-Ahzâb?

Answered by

Sheikh Hamad al-Haydarî

This is the opinion of the majority of scholars. The evidence for this is the consensus of the Companions.

It was related by Ibn Qudâmah that Imam Ahmad said in the presence of Zurârah b. Awfâ: “The righteously guided Caliphs ruled that whoever shuts a door or hangs down a curtain, then he has to pay the dowry and the full waiting period will be apply to the woman (in the event of divorce or death).”

This was also related by al-Ahnaf b. Qays from `Umar, `Ali, Zayd b. Thâbit and others.

Ibn Qudâmah said: “These issues are well-known and no one raised any objections to them at that time. Therefore, they are matters or consensus”.

Your give reference to the verse: “O ye who believe, when ye marry believing women, and then divorce them before ye have touched them, no period of `Iddah have ye to count in respect of them.” [Sûrah al-Ahzâb: 49].

It has been said that “touching” is mentioned to allude to the occasion for touching, which is privacy together. This interpretation is known to us according to the Companions’ understanding. They were the best in understanding the intended meanings of the Qur’ân and Sunnah.

Therefore, if a man enjoys privacy with his wife and then divorces her, all the rulings of divorce after consummation apply. He must pay the full dowry, she must observe the full waiting period, and he has the right to take her back during the waiting period and resume the marriage without the need of a new marriage contract.

According to the newer opinion of the Shâfi`î school of thought, unless the couple had sexual relations, he does not have the right to take her back without a new contract. In their old saying, however, they ruled that their being alone in one place would be sufficient for this, even if they did not consummate the marriage.

And Allah knows best.

Source: Islam Today

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