Taking an oath of Zhihar for something proved to be untrue

Fatwa no. 375 All Praise is due to Allah Alone and peace and blessings be upon the last Prophet. To commence: The Permanent Committee for Scholarly Research and Ifta' has perused the papers submitted by his Eminence, the judge of Khamis Mushayt, which are attached to his letter no. 3368 on 23/12/1392 A.H. to his Excellence, the Chairman of the Departments of Scholarly Research, Ifta', Daw`ah, and Guidance, and which was referred to it from the General Secretariat of the Council of Senior Scholars no. 1911/2 on 23/12/1392 A.H.After having perused these documents, the Committee has found that it may be summed up in the following: 1. Someone seeks a Fatwa (a formal legal opinion) saying: I have a wife, who is the mother of my children. She gave birth to two daughters and her family forced me to divorce her. Then she married another man and gave birth to a daughter before he divorced her. Afterwards, I married her again and she gave birth to two daughters. I gave one of my daughters in marriage to one of my family. When they had problems in their marital life, (Part No. 20; Page No. 271) I thought that the cause of these problems was my wife, so I said to her: By Allah, you will be like my mother if the marital relationship of your daughter and her husband is not good. Later on, I discovered that the disagreement between my daughter and her husband was not because of my wife. Could you please advise? It is worth mentioning that I asked the judge of Khamis Mushayt, who told me that I had to fast for two months. Since I could not fast because of my sickness, the family of my wife came and took her from my house and said: Either observe fast for two months or divorce her, I said to the man in charge, `Aly ibn Sa`id ibn Salimah: Write to them a paper of divorce as directed by the Sunnah in order for them to leave me alone until I ask about the matter. When I went to the judge the second time and informed him about my sickness, he said: You have to feed sixty needy people and take your wife in marriage with a new contract. 2. A letter from his Excellence, the Chairman of the Department of Scholarly Researches, Ifta', Da`wah and Guidance to his Eminence, the Judge of Khamis Mushayt no. 3186 on 6/8/1392 A.H., to make sure of what the questioner mentioned. 3. A letter from his Eminence, the Judge of Khamis Mushayt no. 3368 on 26/11/1392 A.H. and attached to it (Part No. 20; Page No. 272) the minutes explaining the case no. 40, p. 119. The abstract of these minutes is as follows: This man came to him and admitted the letter mentioned above and his wife came to him and admitted the marriage and divorce. She also admitted the second marriage and the offspring and said that she did not hear the second divorce from her husband directly but it was conveyed to her. Then her two brothers came and admitted that he divorced her more than the times he mentioned in the question in the house of someone in Raghwah by saying: I divorce her and this is the exact wording of the last divorce. When he asked the Shaykh, he said to him: You have to fast for two months," but he could not, so we concluded her divorce as directed by the Sunnah. The divorce was on 2/6/1392 A.H. Hasan denied the divorce which her two brothers claimed and said that they had a witness. He also confirmed that they had no witnesses. Therefore, the Judge told him that he should offer the Kaffarah (expiation) of Zhihar (a man likening his wife to an unmarriageable relative) because he asked him about Zhihar only. After a while, he came to ask him about divorce, so he asked him to bring the wife and her Waliy (a legally accountable person acting for a woman regarding marriage) but he did not come again.

After the Committee studied the case, its answer came as follows: The questioner mentioned that he divorced his wife and she married another man and was divorced then he married her again. He made Zhihar because he thought that she ruined the marital life of her daughter. Later on, he discovered that the (Part No. 20; Page No. 273) failure of marital life of his daughter was not because of his wife. When he asked his Eminence, the Judge of Khamis Mushayt about Zhihar, he told him that he should fast for two months. Since he is sick and could not observe fasting and the family of his wife took her and said to him: Either to fast or to divorce her, he divorced her as directed by the Sunnah. Accordingly, there is no Zhihar here and it does not count because he made it according to a matter which he later discovered to be wrong so he should not offer the Kaffarah for Zhihar. As for the divorce which is registered by `Aly ibn Sa`id, it will not be effective or counted. It is mentioned in an attached paper his saying: When we asked the Shaykh and told him to fast for two months and he could not do that, we concluded her divorce as directed by the Sunnah. This shows that the husband divorced his wife because of his incapability of observing fasting for two months as Kaffarah for Zhihar which was issued first. The Judge gave him a Fatwa about that and the Judge admitted that. Consequently, divorce was based on a doubtful matter and proved to be not necessary, so it will not happen. As for the divorce which the Waliy of the wife claimed but the husband denied and both of them claimed that they have witnesses but they did not come, its ruling is up to the judge. (Part No. 20; Page No. 274) May Allah grant us success. May peace and blessings be upon our Prophet Muhammad, his family, and Companions.