Question # 555: There is a sister who recently became Muslim and who was asking what to do regarding her non-Muslim husband, who has been supportive of her conversion and permits her to raise their children according to Islamic teachings. Regrettably, some people advised her that she just should remain with her husband and not be separated from him; one day, he might accept Islam. Please advise on the ruling?
bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).
Dear questioner,
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Shorter Answer: If a woman converts to Islam and her husband remains non-Muslim, then her marriage becomes invalid, i.e., the marriage contract is annulled, and they must separate immediately without requiring a formal divorce. It is not permissible for her to stay with him even if they have no sexual relationship. If her husband embraces Islam while she is still in her waiting period (‘Iddah[1]), then he has more rights to her than any other man (i.e., she remains his wife). However, if her waiting period has expired, then he has no right on her as she becomes irrevocably divorced from him, and she may marry someone else if she wishes. If she desires to wait for him till he becomes a Muslim, she can be his wife, and there is no need to renew the marriage contract.
Long Answer: Allah (سبحانه و تعالى) says in the Qur’an: “And give not (your daughters) in marriage to Al-Mushrikoon (polytheists) till they believe (Soorah al-Baqarah, 2:221) Al-Qurtubi said: “And give not (your daughters) in marriage means, do not give Muslim women in marriage to Mushrik (pagan) men. The ummah (Muslim nation) agrees that a Mushrik should not marry a Muslim woman because this is like putting Islam in an inferior position (Tafseer al-Qurtubi).
Al-Bukhari said: “…Abd al-Warith said, narrating from Khalid from Ikrimah from Ibn Abbas: if a Christian woman becomes Muslim shortly before her husband, she is forbidden for him Mujaahid said: if he becomes Muslim during the iddah [waiting period following divorce], then he may (re)marry her. Allah (سبحانه و تعالى) says in the Qur’an: “They are not lawful (wives) for the disbelievers nor are the disbelievers lawful (husbands) for them (Soorah al-Mumtahanah, 60:10) …” (Saheeh al-Bukhari; See al-Fath).
Imam ash-Shafi‘i said: “If one of the spouses became Muslim before the other, and the husband had already consummated the marriage with the wife, it is not permissible for the husband to have intercourse with the wife, and the marriage is suspended until the end of the ‘iddah. If the partner who had not yet become Muslim does become Muslim before the end of the ‘iddah, then the marriage is still valid. But if he does not become Muslim before the end of the ‘iddah, then the marriage is ended, and it is an annulment without a divorce, and the woman may marry whoever she wishes from that point.” (al-Umm)
We note some of the examples from the history of Islam:
- Zaynab, the daughter of the Prophet (صلى الله عليه و سلم). She was married to Abul-Aas ibn al-Rabee during the Jaahiliyyah (pre-Islamic days of ignorance), but when she became Muslim, their marriage was annulled, and she went and stayed with her father (صلى الله عليه و سلم). When her husband became Muslim, the Prophet (صلى الله عليه و سلم) sent her back to him. ((Narrated by al-Tirmidhi; Abu Dawood; Ibn Maajah; classed as sahih by Imam Ahmad. Al-Tirmidhi said there is nothing wrong with its isnad).
The correct view is that the husband can go back to her with no need to renew the marriage contract. This is the view favored by Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim. It is also the view regarded as most correct by Shaykh Ibn ‘Uthaymeen. If the woman is still in her iddah (waiting period), he has more right (than anyone else) to marry her. If her iddah has ended, she is free to choose whether to go back to him or not.
Ibn al-Qayyim said: “But…the ruling of the Prophet (صلى الله عليه و سلم) indicates … that the marriage comes to a halt. If he becomes Muslim before the end of her iddah, then she is (still) his wife, but if her iddah ends, then she may marry whomever she wants. If she likes, she can wait for him, and if he becomes Muslim, she is his wife, and there is no need to renew the marriage contract.” (Zaad al-Maad)
- Al-Qurtubi said: Talhah ibn Ubayd-Allah was married to Arwa bint Rabeeah ibn al-Harith ibn Abd al-Muttalib. They were separated by Islam, then in Islam, Khalid ibn Saeed ibn al-Aas married her. She was one of the [Muslim] wives of the non-Muslims who fled to the Prophet (صلى الله عليه و سلم). The Prophet (صلى الله عليه و سلم) kept her in Madinah and married her to Khalid (Tafseer al-Qurtubi)
- The daughter of al-Waleed ibn al-Magheerah, the wife of Safwan ibn Umayyah, became Muslim before him, and the marriage was annulled. Then, he became Muslim later on, and she went back to him. (Narrated by Malik in al-Muwatta) Ibn Abd al-Barr said: I do not know of any unbroken sahih isnad for this hadith, but it is famous and well known to the scholars of Seerah, Ibn Shihab, the leader of the scholars of Seerah, and al-Shubi. The fame of this hadith is stronger than its isnad in sha Allah (al-Tamheed)
- Umm Hakeem bint al-Harith ibn Hisham, the wife of Ikrimah ibn Abi Jahl. Her marriage was annulled, then he became Muslim during her iddah, so she went back to her husband (Narrated by Ibn Abi Shaybah in al-Musannaf)
The Standing Committee for Issuing Fatwas was asked about a Christian woman who was elderly, as was her husband. She became Muslim, but he did not, and there was no sexual relationship between them. Is it permissible for her to stay with him, or should the marriage be annulled?
They replied: “If a Christian woman becomes Muslim and she is the wife of a Christian man, the marriage contract is annulled. Based on that, it is not permissible for her to stay with him even if they are old and have no sexual relationship.” (Fatawa al-Lajnah al-Daa’imah)
[Next,] if [the sister who accepted Islam decides to desert] her [non-Muslim] husband…, then she has the right to do so, but it is not permissible for her to desert her children. The children who are below the age of puberty are ruled to be Muslims because of following their mothers, as the children follow the best of their parents regarding religion… The father has no right to custody of the child who has not reached puberty, so she is obliged to strive to take the child from their non-Muslim father.
(The above reply is based on various answers on similar topics provided by Islamqa.info and Islamweb.net)
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.
Wassalaam
[1] Three menstrual periods if she menstruates, or three months if she is past menopause, or until delivery if she is pregnant