Is a divorce considered Islamically valid if it occurred under duress and deception of the judge regarding menstruation, and is the second marriage that took place thereafter Islamically valid?
If a husband divorces his wife during a period of purity (tuhr) in which he had intercourse with her, it is an innovated divorce (talaq bid'i) that, according to the majority of scholars, is revocable. Its pronouncement before a judge does not change its revocable nature. As long as the wife is within her waiting period ('iddah), the husband has the right to take her back, and she is considered in the status of a wife. Some scholars hold that the return (ruju') can be effected simply by sexual intercourse.
If a definitive separation (baynunah) occurs, then the marriage contract must be renewed with the permission of the guardian (wali). If the guardian deputizes someone to document the previous marriage, that person is not permitted to conclude the marriage contract based on this deputization. If he does conclude the contract, it is a فضولي (unauthorized or intermeddling) marriage. However, if the guardian deputizes the woman herself, the marriage is invalid, because a woman is not permitted to marry herself off. In this case, the marriage must be annulled and the contract renewed according to Islamic law, and the child is attributed to his father due to the شبهة (semblance of marriage).
Repentance for lying is obligatory. Not every coercion (ikrah) legally prevents the occurrence of divorce; rather, the prohibitive coercion is that which is compelling (mulji').
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- Original fatwa ID
- 113493
- Imported
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