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#08 Fiqh of Family – Grounds that Constitute Annulment of The Marriage
Channel: Hatem al-Haj
Series: Hatem al-Haj - Fiqh of Family
File Size: 34.82MB
Episode Transcript ©
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Bismillah Alhamdulillah wa salatu salam ala rasulillah Asahi ramen with some I'm about to proceed, chapter on the facts that constitute grounds for the annulment of marriage, Bible or ability of Serbian nikka.
Kodama Allah and who died in the 620 after hedra in his book calahonda, which is an abridged manual of Hungary, said babalola to nikka the chapter on the facts that constitute grounds for the annulment of marriage
la Carmen Lucan alma junoon, and Alma zoomin abrasca, Roger
bhuvan, for the homeless for Nika Illa. Miyako Halima,
whenever one of the two spouses finds the other,
to be insane, or afflicted with vitiligo, or leprosy, for if the man finds the woman to have an obstructive genital tract, or she finds him with a cut off penis, they are entitled to announcement of the marriage, assuming that the defect was not known prior to the contract, assuming the defect was not known, prior to the contract.
So it this is one of the chapters one of the topics that that makes you a little bit uncomfortable when you teach it. But the law, you know, the law has basically to address human reality. And that is human reality. And when it comes to human reality, the law also has to make provisions for different people with different sort of spiritual aspirations and different conditions and statuses. So someone got married to someone, and they found that
he or she has a defect that will make marriage basically very difficult for them, are they entitled to an agreement and this case, and that's what this is about? Basically, we have agreement among the scholars on the concept, but they disagree on the details and agreement among the scholars on the concept, but they disagree on the details, and there are some issues that we need
to discuss here. One of the issues that we need to discuss is that the jury is giving the right to the person who felt deceived or who felt lied to, to seek the annulment of marriage because so that they are not
basically bound by that marriage that they felt were they were deceived into.
If there is a take home message from this chapter, it is transparency. It is basically to be as transparent as you can when you get married.
So that there will be no disappointment and everything will be clear. And people will not feel deceived.
A second thing that I wanted to mention here is that
when people get married, and then they find this out, if they are able, if they feel that they can basically
maintain the marriage or the can stay in that marriage, then they're not, then it's fine. It's up to them. What the Sharia does is that it gives them away out only and it does not ask them to take it and gives them away out but it does not ask them to take. And if someone did it out of the kindness and stayed in the marriage out of the kindness of their heart, then obviously, it is clear that this would be
Having said that, now what are those defects that constitute grounds for the annulment of marriage, you will find that those defects that were mentioned here are the Jeff mentioned here. There are eight defects according to the authorized position in the Hanbury Mazda. And you'll find that these defects
can be put under one of two categories, one category and you want to remember the categories because you want to remember the rationale more than the examples because that is more helpful. The first one is basically
may is is about
Making companionship, difficult companionship, companionship Sakaba
making the song difficult. If someone is insane, for instance, or something of that nature, it makes the soccer or companionship difficult. The second one is about making, you know, sexual intercourse
or sex or intimacy.
Basically undoable or difficult. So it is one of the two. And certainly marriage is about these two, there is nothing, you know, it's about companionship and it is about sexual pleasure. So, it is about these two, and if you can get one of these two out of the marriage, than that is a marriage that
could be revoked.
Now, you could add to this, like things that are harmful to the extent of ruining the marriage, but they don't necessarily compromise one of these two,
according to a position that is not authorized in the very method, yet was chosen by Mira himolla
the strategy of the man should be grounds for the annulment of marriage. Now, the trinity of the woman, the strategy of the man, they say if the woman is sterile, he has the ability to have children with another woman, if he is thorough, she does not have that ability. So, they say that the sterility of the man
is grounds for that. Now, you could say
that this type of harm this level of harm.
Now, the other combat is and the rest of the scholars that not necessarily, you know, mean that they would just be limited to this, but if there is data, there are the woman can ask for separation, separation, that is not an annulment for 10 different reasons.
Separation, that is not another moment for 10 different reasons. And in fact, she was radiochemical hemella. In his book advocate Islamia, the lead to who he was, he had a comprehensive chapter on that particular
concept, the you know, when can a woman asked for separation, and be entitled to separation. So they usually say that the Nazis are the only ones who say that a woman can seek separation for a doctor, but the medic is meant by this verbal abuse, or physical abuse, but there are
a myriad of other
types of adrar, like Ottoman Africa, for instance, failing to sustain her.
For instance, like being absent, you know,
there's like a myriad of other adrar that all the scholars have them.
Basically consider how valid to seek separation, but the magic is higher, the ones who were explicit when it comes to physical, physical, or verbal abuse, or or, or physical abuse.
So anyway, so keep in mind, keep in mind that when we say that she's not entitled to unemployment, we're not saying that she's not entitled to separation, right. amendment is to revoke the contract. separation is to recognize the contract but to separate from now, you know, to seek separation now, and to say that she would also say that she's not entitled to separation does not mean that she cannot have separation which is harder, even though she's not entitled that is in case she is unable to live with a man
And you know, in the chapter further we will go over the details of who granted her hola
against the man's wish.
But but there are three different concepts here that they don't
20 to confuse, a woman can ask for a noun that is faster that is the revoke the contract. This is more limited than a woman can ask for separation based on data based on some harm that befalls her. And as I said there are there is different types of harm not limited to physical or verbal abuse. And then a woman who does not have a legitimate, palpable, tangible reason, she could still ask for her, if she truly feels inside, unable to be in that marriage. Today, we will not talk about seeking separation, we will only be talking about seeking annulment first of the contract as if the contract did not exist. But certainly when you have first caliber contract, there are certain consequences
that will never be repealed. One of the consequences is that she will be deserving of her Mahara
in in all cases, if consummation took place,
regardless of the scenario, she'll be deserving of the month. One of the consequences is that any children that result from that marriage are legitimate children, even if we revoked the marriage later on. So retrospectively revoked the marriage. So, but if so, if we say that there are harms that have that don't basically compromise one of these two companionship or intimacy, there are other harms. There are other things like let us say,
a man came to a woman to propose to her and he asked him, Are you married? And he said, I am not. And after the marriage, he discovered that he is he entitled to unemployment?
Of course, you will say yes.
She entitled to unemployment. Yes, she is, according to the majority of the contemporary Hammadi scholars, earlier competi scholars did not necessarily address this, but building on this, there is there is clear deception here. Now, if she did not ask him, and he turned out to be married, is she entitled to unemployment? No,
He does not. He's not required to volunteer that information. But he's required to be truthful, if he was asked, and if he was not truthful, then that lie will entitle her to unemployment.
Well, if he's not forthcoming with his marriage, it is her fault that he did not ask.
But because because like he is entitled to
then the then the next question that needs to be answered here is that
defects? Are those defects fixed or not fixed? Should we remember the rationale for the are fixed in the mazahub? So whichever method is ascribed to these are the defects and that's so the majority, in fact, it seems to be the agreement of the form as I have that the Arctic's there is a position in the combatting method that they are not fixed and that position was adopted by Damien Allah, but the majority seem to say that these defects are in fact fixed.
The only thing is that they disagree so much on what they are. They agree that they are fixed, but they disagree so much on what they are. So they are fine according to the canopies. And keep in mind, what is peculiar about the canopies also is that they would never give the man the writer moment. They only give the right allotment to women, because they say the man can divorce her. But if he, you know, just give her a matter of like $2 million.
that is the majority will say, no, it is you know, he's entitled just as much as she is entitled if she was the same. He was he hasn't
titled if he was deceived, because there are sort of monetary and other types of consequences for marriage, and if she's entitled to revocation, he is entitled to revocation, if he was, was also deceived into it, but the HANA fees will say no right of annulment for the man, he has the right to divorce, we will give her the right of annulment, because she does not have the right to divorce. But again, at the same time, she does have the right to separation that is court enforced separation, she cannot initiate the divorce. But you can demand that and if he was found to have grounds for it, she will be given a court enforced separation which is called plead,
you can call Dr. Li Li, which is court and for separation. Anyway, the defects that the HANA fees mentioned are five.
And they say that this is only for the woman to use not for the man that defects that the
for instance, the the shaft, you mentioned are seven, the defects that the honeyberries mentioned in their authorized view are eight.
The Maliki's have 13.
And the honeyberries. In the non authorized view, as we said, they expanded this to 16.
The fact that,
as I told you, they may have chose the third extremity of the man, for instance, would be grounds sufficient grounds. So they disagree. So now we have another group of scholars, but they are not the majority, they are a small minority, but oftentimes you cannot deny that the position of this small minority makes so much sense. So you have scholars like Samurai Hans ohare, and Mohammed Ahmed huson, and later admitted, who said that defects are not fixed. It is basically the rationale, whatever would make the marriage. So nowadays, for instance, that some of these diseases are treatable, so they may not some of the diseases that the scholars have mentioned in the past, could
be nowadays treatable, but HIV for instance, could it constitute grounds for separation, if there was no transparency if people if you if as a person married, and they he did not he was not forthcoming? Or she was not forthcoming with her diagnosis? And the other person discovered that he or she are HIV positive? Does that constitute grounds for annulment? Based on the rationale it does? And if you say that the defects are not fixed,
like Sir, I already had the Muhammad, Hassan, urbanity mayor, then you could add to them, you will have flexibility, the judge will have flexibility nowadays to say, no, this can be treated, just go, you know, take care of it, and then come back to me later. Or he could say, yes, this actually was not mentioned in the books, but it is, you know, legitimate, substantially legitimate reason for an ailment.
So, one thing that we learned is that
we've got to be transparent
and more transparent.
Now, that does not mean that the sometimes people ask you I have to tell about all of my sins in the past? No, you probably don't, unless the sins are consequential.
And there would be it would be a judgment call regarding a certain type of sins, whether they are consequential or not, sort of psychologically emotionally consequential or not.
Certainly you don't need to tell us about your sins because we cover up our sins that is, we are instructed not to be Mujahideen not to be people disclose their sins, we cover up our sins, we repent, we cover them up, and we move on. But there there there are certain sins that may be consequential to the other party. And in this case, transparency would be a judgment call. Like if you really want to reveal your past
to the suitor would be a judgment call. You're not required to do it. islamically
If you were not
chase, for instance,
if you have a history
and there is a child
Well, how do you? How do you?
How do you hide that?
drug addiction if you recovered,
then you don't need to tell of your past
if you have recovered.
Yeah. Now, Honestly speaking, as I said, there is a difference between whether you're required or not required, or whether it is best that you can or not. So, what I am saying here is that you are not required to tell
is it best, if you tell them? Probably yes, because the more transparency that you know, but certainly, you're not going to give them a list of all of your sins that it because that that's, first of all, that will take you a few years to discuss.
it is not the Islamic way, you know, sins are to be forgotten, and you people are encouraged to move on and to start a new page with the last panel, Tada. And as human beings, we are also, we should also give the people the chance to flip the page, we should give the people the chance to flip the page.
Anyway, but it's a judgment call, at the end of the day, there are certain things that are required to tell
there are other things that are not required. But if you want to speak about them for for more clarity and more transparency, it's probably a good idea. But others would never mean that you just need to basically give a list of your entire past and all of your sins in your past.
Sometimes also, like a particular sense could be haunting. You know,
like if if a woman for instance, says that, you know, someone touched me or something of that nature, that could be
for certain types of men, particularly hot blooded men, that could just be that could just theory persist in their mind forever, and just ruins the relationship forever, even though it was just a casual encounter, that people have moved beyond that and prevented from it and, and all of that stuff. Should you really say that someone hugged me? Or does she have to say that for instance?
And what are the consequences for the future relationship?
And some men in particular just can't move beyond that, it just keeps on coming back to them.
Is there like, is it wise in this case, to be really forthcoming? And to be to have that level of clarity and transparency?
That is why there is a difference between the platonic triad and God, Goddess goodness. So, we do not have a commitment to one particular aspect of platonic trayer. truth, justice, beauty, and because beyond them at a higher level of abstraction, there is goodness. So truth is, is valued to a great extent and Islam. But if someone comes and asks you for a runaway, like a tyrannical ruler, for instance, the kantian example, like a tyrant comes and asks you for
the whereabouts asks you about the whereabouts of a run away who is
you know, who is likely to be oppressed by this tire and to have the found them
in Conti and categorical imperatives, you have to say the truth because it is the truth. But do we put that much weight or give that much value to the truth versus mercy for instance, versus the good?
You know, which is God?
No, we don't. We are in this case, given a license to conceal the truth or to even lie if the truth will ultimately result in oppression.
But that's a long discussion and you know, let's let's just go back to the shape here. So that she acts as metadata. How does Audrina lockergnome look at how much known and how much doom and how but also how
boob and photographers Monica Hi, Lamia Halima,
whenever one of the two spouses finds the other to be owned insane or afflicted with a leg or leprosy.
Or if the man finds the woman to have an obstructive genital tract or she finds them with a penis, they are entitled to the marriage, assuming that the defect was not known prior to the contract, because the time of the contract is the
separation before and after. If the defect was known, prior to the contract, no one has the right amendment.
Then the SEC said, certainly for the Lego, you know, it could be
to some people that it could be grounds, it could make it difficult for the physical attraction. And the physical attraction is part of what people get married for, you know, so they're their inclusion of the Lego here is not basically completely nonsensical, as you may think, because it's not really a dangerous or contagious disease. It's not leprosy that you can catch from him or her. But it could be, it could cause physical aversion. And a physical attraction is one thing people pursue or seek in marriage, then that can cause the the opposite. That does not mean that they are telling you to divorce or to seek annulment. They're just giving you a way out, but they're not asking you to take
it. They're not even recommending for you to take it. And if you don't take it and if you stay in the marriage, you know, out of kindness, you'll get rewarded, and that would be a praiseworthy
Then does he accept
what I do so trust me hakon. annulment is not permissible without a judicial ruling. So announcement is not automatic. In this case, you will have to seek Helmut Harkin, you would have to go to court, it has to be court enforced. It is not automatic. It has to be court enforced.
When it that maratona Xhosa in Lesotho Isla
de la Sonata monzo Tara for de
la Musa harira
woman claims that her husband is impotent and does not get an erection with her. But he disputes that can keep in mind these are things that courts all over the world, they these are cases that courts have to entertain. So the law has basically to provide guidance for the course. So,
but he disputes that and claims to have not sought her yet, he will be given up to one year from the time of disputation. If he does not have intercourse with her by then she will be given the choice of staying with him or leaving him. Now, he does have the male Oregon, but it is not functional. But you know, that's not easy to discover. Because you know, elections just does not happen this way. So, we are not going to say you know look at him and see if this function or not because it can it may not happen. So they said give him a year. Why did they say give him a year they said within the year you will go through the four seasons. And if this was transient, caused by, you know, humidity
or whatever it is, then the reason for it was
disappear and then it will go away. But after one year going through the Four Seasons, it is not going away because you have already gone through the Four Seasons, that is the point in the one year four seasons. Now,
in our times could we say that
someone do the experts will say that this person is impotent is never going to be able to get an erection, we need to stay for a year. Now, the scholars took this rolling because Amara kept up and other the Sahaba they figured that this was, you know, the the rational logical thing, you know, just give him a chance. Because these things are, you know, could happen could be transient.
But But if there was no if the Oregon was not there, they will not give him the chance. So it's not just that they're trying to give the man like, like, they're trying to favor for the man. It's just that the organ is there, but the function may be
impeded by some trains and treason. So that's, that's the thing here that they're talking about.
That's the thing with impotence, or
sculpt the unknown with Bob Miller A,
which is impotence
for electorate piraka who farrakhan hachimura in Houma, elantech, una caja de matar on Navajo cobbler Nika palette for the to be here in and fee walked in. If she
chooses to leave him, the ruler will separate them unless, unless she knew of his impotence before her marriage, or said I accept Him as impotent at any point in time, at any point in time. If she said I accept Him as impotent, she will never have the subsequent right to announcement. If she had known of his impotence prior to the contract, she will not have to not be entitled to an agreement of the marriage. Keep in mind, we're talking about an agreement that is revocation of the contract. We're not talking about the other things that she can demand, demand separation for about or demand credit or something of that nature.
Then the sheikh said in alamut bothered was second at Animoto Alibaba, let me ask Kotaku when Carla kadalai met Ronnie our audio be bad enemy half and carrot factory.
If she comes to know about it, after the contract, he he abstains from seeking separation, she retains her right to do so. If she says she knew my F, he says she knew of my impotence and accepted me after that. And she denies it, then the claim to be considered is hers. Her claim will be favored or his. So two points here. If we say that, here's the contracts contract.
Here is consummation.
If she came to know here
that he is
that he's impotent, and she did not basically walk away from this marriage. She lost her right to unknown
if she came to New here after the consummation, that he is impotent, and she does not promptly demand separation. She had lost their right to unemployment
That's, that's why we're coming up at this point. If she came to know in this period between the contract consummation between the contract and consummation, if she came to know in this period, that he is impotent.
Now, her right to announcement will not be dropped, she will not lose that entitlement except,
except less explicitly, not just that she stayed silent or didn't do anything about it or didn't say anything about it, but you will have to explicitly say, lovely to be here and Nina hi accept him in that way. If she says it, she loses the right to annulment. If she does not say it, but does not walk does not act upon, then she will not lose it. She will not lose it. So why are they saying this?
Why are they saying this? They're they're saying this because in this period,
she could be you know, it's after the contrary.
They're already married. She may not recognize the full blown meaning of this, because it's not consummated. And it is not like before the contract where you just walk away easily. So she is stuck in that period. She is contracted. And, you know, she may not realize the full blown meaning of his impotence. After the consummation, she can realize the full blown meaning of his impotence before the contract, she can walk away easily. In that period, they kept her right for alignment. If she felt overwhelmed, sort of like and could not do anything about it could not take any action or say anything. They give her the captive or try to for her until the consummation that after the
consummation. So that's, that's all the discussion that he's going through here. But one thing at any time when, when pre Volker right, what is it? explicit? acceptance? They say, I accept him this way.
But she explicitly said, Okay, well.
What can we do to her like someone should have told her you know, she, she knew it, she explicitly said I, I'm okay with this way. Because at the same time, they also recognize and recognize that some people may not want marriage for sex, they want it for companionship. So maybe that is what he wants companionship.
Then the sheikh said we're in Kanaka Lim to unnati. When Carla could animate on Nettie our other yet be bothering me half and carat from colo colo. He says she knew my evidence and accepted me after that, and she denies it, then the claim to be considered is hers. Keep in mind,
there is a principle in Islam, which is called the status quo. But there is another principle in Islam that is called Albania to automata dot immunodominant. So, the proof
the burden of proof is on the claimant and the denier will have to take an oath would only need to take an oath would only need to take an oath. So always the claimant has. So once we have established something, it is it is there, we will not remove it.
So what we established here, he admitted that he's impotent. This is established. He then claimed that she knew she denied
who has to prove he has to prove he has to prove that she knew
because now we know that he's impotent. He claimed that she knew she denied he has to prove them. Then they will favor her statement over his in this case.
Then it says when I saw baja Mara mucuna and neenan when it does Attica and karatu in Canada, Korea
sepatu Raja Raja Illa Callaghan when cannot say eventful colocado whom I mean if he had intercourse with her once he is not
impotence, if he claims to have had intercourse with her, but she denies it. One, if she was a version, she will be examined by trustworthy women and their statement shall be accepted to, if she was failure,
his statements along with his oath shall be taken his statement along with his oath shall be taken. So two things here that we have to
now, if he had intercourse with her once, then he's not impotent. because everything's people can just
now, if he's not having if he is not fulfilling her needs, she can demand divorce or separation, or whatever it is, but she is not entitled to unemployment, she is not entitled to unemployment, is that clear. But if he's not fulfilling her needs, she can seek other conservative ways of separation.
The second thing here is, if he claims to have had intercourse with her, but she denies it, then that's, that's a problem. Why is it the problem?
Because to establish this is impossible,
to say to the claimant, they say to the claimant, you need to establish it, it just doesn't make any sense. How do you how do you establish this, because I asked him, if he has no more, and I'm
not gonna set the default here is that these things happen in private, it's just not going to be able to bring two witnesses.
So the claimant here, we will not apply that guy that the claimant has to prove.
Okay, so now what do we do?
Who has the upper hand here, she or he, he, why, because he, he is the one who's holding on to what status quo, the status quo, they're married,
they are married, she is seeking to terminate an established relationship, she is seeking to terminate a valid contract, he has the upper or the upper hand, because he is on which side inside of the status quo.
And always, like I said,
where we are on the side of status quo. Now anyone who wants to move from status quo, the burden of proof is on the one who wants to terminate status quo. Hi, hi, I'm here in this apartment. I've been living in this apartment, people have been watching me come in and out of this apartment for the last five years. And these are my neighbors, you come to say that the apartment belongs to you? Well, status quo. You have to prove it. I don't have to prove anything. It is my apartment. People have been seeing me live in this apartment. We are married. You're claiming that you know that. We never had intercourse. Now.
Why are you claiming this? That idea of intercourse as we said, you can prove intercourse because it's private matter. So why are you claiming this because you see terminate the status quo, prove that we did not have intercourse. If she was a virgin. And she instead of Verizon, she'll be able to prove it.
Whoa, terminate virginity. What if he said no, it doesn't always terminate virginity.
Because we also realized
that, you know, there is the condition of the elastic Iman and intercourse does not necessarily terminate virginity.
They will still say it is they will still favor her over him.
They'll say is a because that's rare. And you know, you're claiming that you have intercourse but it did not terminate their virginity that's too hard to to figure out now. So they will give her another moment of the contract. If she is still a virgin. Despite his claim, that intercourse did take place. But she you know, still had her virginity.
And that would not be virginity but she still has the indication of virginity I guess.
Nowadays, is there a way to figure out this? Maybe
in the past, there's no way to figure that out.
This nowadays is
through forensic medicine and all that stuff. I guess there is, there is a way to figure out if intercourse happened recently, but there is no way to figure out if intercourse happened a long time ago.
But but then let's go to the other, basically possibility. The other possibility is that she was not very good previously well, and she says he didn't touch me, she seeks an omen, because she says he never touched me.
They will not, they will not in this case.
recognize her claim? If he denies it, because they cannot prove it. That would not make him make any sense. What do you mean, prove it gets you two witnesses.
So they will tell her, you are the one who seeks to terminate status quo, we will keep it until you're proven
the burden is on you. Because you're the one who's seeking to terminate status quo.
they said prompt, so she has to act on it, frankly. So when she goes to court, they would have to ask her if she came, you know, after a week, What kept you for a week to see we'll need to immediately act on it, promptly act on it, she would have to explain why she was late. But if she comes to court, you know, after one year, and say, Well, we know that she changed her mind. Now she can if she seeks to separate, she cannot seek an element, an element is a big thing. A moment is revoking a contract that fulfills its conditions and pillars. So big thing, you know, we have a contract for the conditions in terms of the contract were all fulfilled, and you want to
retrospectively revoke that contract. That that's a big thing. It should only be granted in dire cases, situations where we were the party that that claims harm, can actually prove that harm, and can prove that it is substantial harm that would impact their ability to stay in this marriage, whether it is companionship or
That brings us to the end of this chapter. It is a smaller chapter. So we ended up a little bit early so we can have like some more questions and answers and show during the q&a session.
But I was not able to basically, I thought of starting the next chapter on Saba, but the chapter on sybok or Manhunter, or diary is a long chapter.
So it was it was not going to work.
That's exactly what I was talking about. Holic Shadowlands.
Okay, this this is an important part. I'm sorry.
I did not mention this, but it should be mentioned here.
The revocation now will give them the man the right to the Bowery with the revocation give the man the right to the dowry.
Yes and no. But it is mainly Yes.
If this happened, if the revocation happened the prior to the consummation, the man will be entitled to that hour he will take the battery back. If he gave her one half, he will take that one half back.
So the man is entitled to taking hero that hour. Okay. If the consummation happened, if the if the if the revocation happened after the consummation, consummation, he cannot take the dowry from her, he will take it from whoever deceived him.
And if so, so, he will take it from here whether he or will ever got him into this, but he will not take it from her. From her. He will take it from whoever got him into this territory.
Because after consummation, no one now if c is the sole, responsible party, she deceived it will lay.
The man would be taken away from her. He will take it from the weather and the weather he will take it from her if she deceived the weather