Marriage: Nothing forbidden can invalidate something lawful

Q358 :We would be grateful for your comments on a ruling given in "The Majlis", a newspaper published in Port Elizabeth, South Africa. The lady who put the question was told that her marriage is no longer valid, and it is forbidden for her to live with her "former" husband. Remarriage between them is impossible. That is because the woman's father-in-law sexually assaulted her when they were alone.

A358 : I am grateful to you for sending me a copy of the paper to give the details of the ruling in question. The first point I would like to make is that since the very early days of Islam, Muslim scholars have been very careful in their ruling on matrimonial matters. Their cautious attitude is the most appropriate one indeed, because it is very easy to ruin a marriage and cause a family lasting distress on the basis of a wrong ruling. When we speak of the early days of Islam, we are talking of great scholars who learned about what is permissible and what is forbidden from the Prophet himself. We are speaking of men like Umar ibn Al-Khattab, Abdullah ibn Abbas, Abu Moosa Al-Ashari, Abdullah ibn Masood, Abdullah ibn Umar and also of Lady Aisha, the mother of believers. Everyone of them and indeed later scholars and the founders of the schools of thought felt it far more appropriate to refrain from giving a ruling on a problematic matter rather than jump to a conclusion that may possibly be wrong. What has upset me about this ruling is its outright "finality". There is no hesitation, no attention to details, no questioning of the victim's position when this "vile deed", as she describes it, took place. There is no inquiry on how far did the offending father-in-law go. All these considerations are overlooked and the woman is told that her marriage is destroyed and she can no longer have any relationship with her husband. Yet, what we have here is a case of assault by a promiscuous person on his daughter-in-law. For all we know, the woman might have been in a state of shock to find her father-in-law doing what he did. Some women find it so difficult to respond to a situation of attempted rape they simply freeze and cannot do anything to repel their attackers. That gives the attacker a chance to do whatever he wants, facing little or no resistance. I have recently read a case of a British woman police officer raped by her colleague in the dormitory attached to a police establishment. She simply froze when the attack took place. No law would make that woman police officer guilty or impose on her a penalty for being so attacked. Islamic law makes the establishment of justice its top priority. Yet, here we are told that the victim of an assault is to be penalized by a final and irrevocable termination of her marriage! That seems exceedingly odd. Moreover, we are talking about a marriage that is already in existence. We are told that the father-in-law has committed an act which has the effect of aiming a gun at that marriage and shooting it in the heart so that the marriage is immediately dead and there is no way to save it whatsoever. I know only of three ways to terminate a marriage: the first is by the death of either spouse which is an act of God; secondly, by divorce which is an act of the husband; and thirdly by a termination order given by a judge either on the application of the wife or because he finds something wrong with the marriage itself. For an outsider to terminate the marriage of a couple, no matter what relationship he has with them, is simply unheard of. Let me make it very clear that the ruling given in that newspaper, telling the women that her marriage is no longer in existence is a wrong ruling. I say this on the basis of a well-known rule which Imam Al-Shaf'ie has established and which is taken up by scholars ever since. That rule says: "Nothing forbidden can invalidate something lawful." When we apply it to the case in hand, we realize that the marriage between this woman and her husband is the lawful situation. The "fondling" of the woman by her father-in-law is the act that is forbidden. Hence, it cannot invalidate the marriage. In the case of this particular lady, she is the victim of an assault. But if we take a different situation in which the woman is willing and she responds to the advances of her father-in-law, she would be committing a very vile crime, but the crime itself does not invalidate her marriage. This is based on the same rule that Imam Al-Shaf'ie has formulated. What God has forbidden in connection with a woman and her father-in-law is that the two should never get married. That is not possible at all. It is a permanent prohibition which does not allow a man to marry a woman who had been married by his son. Once she has been married to his son, the prohibition for her to marry the father is permanent. Hence, her relationship with her father-in-law is that with a "mehram". It is true that some people have a loose standard of morality, and they may be guilty of actions of the nature which the man in this case has committed. But that does not impose a general restriction on Muslim men and women, as the South African newspaper tries to make out. There are people who do not hesitate to commit incest with their daughters. Are we to impose a restrictive relationship between men and their daughters because some perverted persons commit incest? The woman need not tell her husband about what happened between her and his father, if she feels that by telling him she could cause a problem in the family. However, it is her duty to avoid her father-in-law and to make sure that she would never be alone with him again. That is all that may be required of her.

Our Dialogue ( Source : Arab News - Jeddah )