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Chapter thirty » Usurpation (Ghaṣb) → ← Chapter twenty-nine » Khulʿ divorce

Chapter twenty-nine » Miscellaneous rulings on divorce

Ruling 2554. If a man has sexual intercourse with a woman who is not his wife supposing that she was his wife, the woman must observe ʿiddah, irrespective of whether she knew that he was not her husband or supposed that he was her husband.

Ruling 2555. If a man fornicates with a woman whom he knows is not his wife and the woman knows that he is not her husband, it is not necessary for her to observe ʿiddah. However, if she supposes that he is her husband, then the obligatory precaution is that she must observe ʿiddah.

Ruling 2556. If a man deceives a woman into not fulfilling her marital duties towards her husband so that her husband is led into divorcing her and she marries the man, the divorce and the marriage are valid. However, both of them will have committed a grave sin.

Ruling 2557. If a woman stipulates a condition in the marriage contract that she has the right to divorce in certain circumstances – for example, if her husband travels for a long time, or does not pay her expenses for six months, or is sentenced to a long imprisonment – then such a condition is invalid. However, if she stipulates a condition that in certain circumstances, or without any restriction or condition, she is to be his agent in being able to divorce herself, then such a condition is valid and her husband cannot later depose her of her agency (wikālah), and if she divorces herself the divorce is valid.

Ruling 2558. If a wife’s husband has disappeared and she wishes to marry another man, she must refer to a just jurist (mujtahid).(1) And in certain circumstances that are mentioned Minhāj al-Ṣāliḥīn,(2) the jurist can divorce her.

Ruling 2559. The father and paternal grandfather of a man who is permanently insane can divorce his wife if that is in his interests.

Ruling 2560. If the father or paternal grandfather of a child marries him to a girl in a temporary marriage, he can give the remaining period of the marriage to the girl if it is in the interests of the child. This applies even if part of the period includes a time when the boy is bāligh; for example, a father marries his fourteen-year-old son to a girl for a period of two years. However, the father or paternal grandfather cannot divorce the child’s permanent wife.

Ruling 2561. If a person considers two people to be just on the basis of something that is legally authoritative (al-ḥujjah al-sharʿiyyah) [such as the statement of a reliable person], and he divorces his wife in their presence, then in such a situation, another man can marry that woman himself or he can marry her to another man after her ʿiddah comes to an end if he doubts in the two witnesses being just but deems it probable that the man who divorced the woman considered them to be just. However, if he is certain about the two witnesses not being just, then he cannot marry the woman.

Ruling 2562. If a man gives his wife a revocable divorce, she is still considered to be his legal wife until her ʿiddah comes to an end. Therefore, she must not prevent her husband from deriving any sexual pleasure that is his right. Also, it is permitted (jāʾiz) – rather, it is recommended (mustaḥabb) – for her to make herself look attractive for him, and it is not permitted for her to leave the house without his permission. As for the husband, it is obligatory on him to pay for her maintenance (nafaqah) if she is not recalcitrant (nāshizah),(3) and her shroud (kafan) and fiṭrah alms tax (zakāt al-fiṭrah) are also his responsibility. And in the event of death of one of them, the other inherits from the deceased. Furthermore, the man cannot marry the woman’s sister while the former is observing ʿiddah.

(1) A mujtahid is a person who has attained the level of ijtihād, qualifying him to be an authority in Islamic law. Ijtihād is the process of deriving Islamic laws from authentic sources.

(2) This is al-Sayyid al-Sistani’s more detailed work on Islamic law.

(3) A recalcitrant wife is one who does not perform her obligatory marital duties, which are explained in Ruling 2430.
Chapter thirty » Usurpation (Ghaṣb) → ← Chapter twenty-nine » Khulʿ divorce
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