Is it permissible for my brother, whose news has been cut off for three years and whose family has despaired of his return, to marry his brother’s wife?

If a man is absent from his wife, his absence can either be continuous, allowing communication with him, in which case his wife is not permitted to marry another, unless she is unable to be maintained, in which case she can request annulment. However, if his news is cut off, jurists have differed in their opinions:

1. Hanafis and Shafi’is (new قول): The wife of a missing person does not marry until his death or separation is confirmed, based on the hadith (definition): "The wife of a missing person remains his wife until her husband returns." 2. Hanbalis: They differentiate between two types of absence: Absence with apparent peril: (like a person missing in battle or a place of destruction) His wife waits four years, then observes the waiting period of death (four months and ten days), and then becomes permissible for other men. Their basis is the action of Umar (may Allah be pleased with him). Absence with apparent safety: (like travel for trade or seeking knowledge) She waits ninety years from the day of his birth, then observes the waiting period and becomes permissible for other men. 3. Malikis: They differentiate based on the place of disappearance: Within Dar al-Islam (Abode of Islam): A four-year delay is observed after searching and being unable to find any news of him, then his wife observes the waiting period. In non-Muslim lands (as a captive): His wife remains his wife until the end of the presumed lifespan (usually seventy years), unless she fears committing zina (fornication/adultery) or maintenance is cut off, in which case she can request divorce. Between two fighting lines of Muslims: His wife observes the waiting period after the lines separate. Between Muslims and disbelievers: A one-year delay is observed after examination and investigation, then his wife observes the waiting period.

The conclusion is that the wife's marriage before the passage of four years—if the husband's absence indicates peril—is invalid and must be annulled. The same applies according to the Malikis if his disappearance was within Dar al-Islam. Therefore, the wife's marriage to her husband's brother only three years after his news was cut off is clearly objectionable, and she must annul this marriage and refer the matter to the Sharia (definition) court.