There is a Christian woman who is married and has three children. She is close to entering Islam – by Allah’s leave – but her husband is also Christian, and she is afraid that if her husband becomes Muslim, he will take a second wife. Can she stipulate in the marriage contract that her husband should not take a second wife? Please note that at present they are not Muslim, but after they become Muslim – by Allah’s leave – is it valid for them to write this condition in the marriage contract?
Praise
be to Allah
Firstly:
Stipulating that
the husband should not take a second wife is one of the conditions that it
is permissible for a wife to stipulate, according to the madhhab of Imam
Ahmad (may Allah have mercy on him). It was also narrated from some of the
Sahaabah and Taabi‘een, and was the view favoured by a number of senior
scholars. The permissibility thereof has been discussed previously in the
answers to questions no. 108806,
223559 and 228848.
Secondly:
If a couple
become Muslim around the same time, and there is no lengthy interval in
between, or if the husband becomes Muslim before the wife’s ‘iddah following
her becoming Muslim ends, then their previous marriage contract remains
valid.
In this case, it
is not valid for her to stipulate that her husband should not take a second
wife, because the conditions that are valid in contracts are those that are
stipulated when the contract is first drawn up, or they are agreed upon
before marriage.
If the wife
becomes Muslim before her husband, and her husband delays becoming Muslim
until her ‘iddah has ended, then in this case their marriage is annulled.
Then if her husband becomes Muslim after that, it is essential to draw up a
new marriage contract between them, according to the majority of scholars,
in order for it to be permissible for her to go back to him.
In this case –
that is, if they want to do a new marriage contract, there is nothing wrong
with her stipulating whatever conditions she wants to, to be included in the
new marriage contract.
And there is
nothing wrong with her stipulating that he should not take a second wife.
Ibn Qudaamah
(may Allah have mercy on him) said:
If one of the
spouses becomes Muslim, and the other delays becoming Muslim until the
woman’s ‘iddah has ended, then the marriage is annulled, according to most
of the scholars.
End quote from
al-Mughni (7/154).
We have
previously discussed this issue and explained that the more correct view is
that after the ‘iddah has ended, the woman has the choice: she may either
wait for her husband to become Muslim, and if he becomes Muslim, then she
may go back to him on the basis of the first marriage contract, or she may
marry someone else if she wishes.
See the answer
to question no. 21690.
Thirdly:
With regard to
conditions added to the contract after it has been concluded, they are not
binding upon either party.
Al-Mirdaawi al-Hanbali
(may Allah have mercy on him) said:
The time for
mentioning conditions with regard to marriage is at the time of drawing up
the contract. This was stated by al-Muharrir and others.
Shaykh Taqiy ad-Deen
(may Allah have mercy on him) said: The same applies if they agreed on the
condition before the contract was drawn up, according to the prevalent view
of the madhhab.
I say: This is
the correct view, concerning which there can be no doubt.
If the condition
is stipulated after the contract has been drawn up and become binding, then
the view that was narrated from Imam Ahmad (may Allah have mercy on him) is
that (this condition) is not binding.
End quote from
al-Insaaf (8/154).
Shaykh Ibn
‘Uthaymeen (may Allah have mercy on him) said:
With regard to
marriage contracts, it is not possible to add retroactive conditions.
With regard to
sales contracts, it is possible to add conditions after the contract has
been drawn up, such as conditions added before the two parties to the deal
separate or if the option to add this condition is mentioned in the
contract.
End quote from
ash-Sharh al-Mumti‘ ‘ala Zaad al-Mustaqni‘
(12/163).
Fourthly:
What this woman
should do is hasten to enter Islam, and not let the issue of her husband
taking a second wife prevent her or her husband from becoming Muslim,
because that comes under the heading of the Shaytaan trying to scare her and
discourage her from becoming Muslim. So she should try to annoy the Shaytaan
and pay no heed to his attempts to scare her or the negative thoughts that
he casts into her heart to try to stop her and her husband becoming Muslim.
Rather she
should think positively of Allah, may He be exalted, and realise that He
will never forsake her if she becomes Muslim. Rather the more a person turns
to Allah, the more Allah will turn to him, love him, honour him and make his
affairs easy for him. Allah, may He be exalted, says (interpretation of the
meaning):
“And
whoever fears Allah – He will make for him a way out
And will provide
for him from where he does not expect”
[at-Talaaq
65:2-3].
We ask Allah,
may He be exalted, to guide her and her husband.
And Allah knows
best.
