My sister is married. She was married six years ago and she also has five children. Two years ago started to remain mentally unstable and now since one year she has been completely insane. Her husband has divorced her one and a half months ago. Husband is fine and has sound mind but his wife is completely mad. So does the divorce occur in such case? If yes then what is the procedure to do Ruju’?
- The rights of divorce are with the husband; therefore if he was mentally fine then the divorce has occurred and the wife has not to be in her senses for this. However, if a woman is seeking for Khula’ (wife seeking separation from her husband) then she must be mentally stable.
- Similarly it is the right of the husband to do Ruju’. He can negotiate with his wife if he wants to do Ruju’ but with the condition that the ‘Iddat must not have completed. Allah the Exalted has said:
((وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ))
and at the end He said:
((وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَلِكَ إِنْ أَرَادُوا إِصْلَاحًا))
“And the divorced women shall wait for three menstrual periods… And their husbands have better rights to take them back in that period.” ((Surah al-Baqarah: 228))
Therefore, a man can take his wife back within the time of ‘Iddah. There is no need of Mahr, renewal of marriage etc however this will be counted as a Talaq.
But if the person wants to take her back after the completion of ‘Iddah, and because the marriage ends with the completion of ‘Iddah, therefore to take that woman back as his wife it is necessary for him to do Nikah again. Allah the Exalted has said:
وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَنْ يَنْكِحْنَ أَزْوَاجَهُنَّ إِذَا تَرَاضَوْا بَيْنَهُمْ بِالْمَعْرُوفِ
“And when you have divorced women and they fulfilled the term of their prescribed period, do not prevent them from marrying their husbands.” [Surah al-Baqarah: 232]
Hence we know that after the completion of ‘Iddah both may again become husband and wife after marrying again. However, this can happen only if the wife is ready for new marriage because just as the permission from the guardian is mandatory similarly the consent of the wife is also mandatory.
‘Abdullah bin ‘Abbas (may Allah be pleased with them) says:
الْأَيِّمُ أَحَقُّ بِنَفْسِهَا مِنْ وَلِيِّهَا، وَالْبِكْرُ تُسْتَأْذَنُ فِي نَفْسِهَا، وَإِذْنُهَا صُمَاتُهَا»؟ قَالَ: نَعَمْ
“A widowed has more rights on herself than her guardian, and virgin’s permission must be sought and her permission is her silence.” [Sunan Abu Dawud: 2098]
Besides that, he has to give the fixed Mahr because the previous Mahr has ended with the end of Nikah. It is also necessary that marriage should not be done inside a closed door; rather the presence of the witnesses is mandatory.
- It should be kept in mind that right to do Ruju’ during the ‘Iddah, or the right to marry again after it is only after first or second divorce. This right ends after the utterance of the Third divorce. After that only one option remains that the woman marry with another man with the intention to live with him, and if the husband dies or he gives her the divorce then only the marriage with the first husband will be valid.
- As we have mentioned earlier, during the ‘iddah period husband has the right to do Ruju’. If it is done after negotiating with the wife that is fine, but seeking permission from the wife is not necessary for Ruju’. However, after the completion of ‘Iddah the consent of the woman is along with that of man is also mandatory to perform marriage, as it has already been mentioned above. If the wife is insane and she has lost her intellect and consciousness then her consent shall be enquired through indications and clues because in insanity a person does not remain in a single condition. It is better if the consent or non-consent is known but if it cannot be known then her father or brother, as a guardian, shall marry her (to him).
Lastly, we would like to advice the husband who has divorced his wife because of her insanity that he should take her back while fearing Allah in this regard. He should provide her the medical treatment as per his financial capacity and try to take care of her. An ill person has rights even if that person is a common human being, but here she is the mother of his five children. Allah’s bounties and resources are prevalent in today’s time; modern procedures of treatments have been invented. Many human beings whom we leave due to their madness and insanity, if we could give a bit of attention towards them they can also live a normal life again. Contact with an expert doctor or good Hakeem and ask a righteous person to make Du’a and perform Ruqya, and also make Du’a yourself so that Allah the Exalted may provide a healthy life.
It should always be remembered that a healthy life is in the hands of Allah. Allah may give this blessing to someone for some time, and He may take it back if he wills. We should thank Allah for the blessing of health, but those who are deprived of this blessing should be taken care of, and not to be thrown out by making them the target of hate such that they keep wandering from one street to another.
May Allah the exalted guide all of us.
His excellence Shaykh Abu Muhammad AbdusSattar Hammad (President of the Lajnah)
His excellence Shaykh Abdul Haleem Bilal (may Allah preserve him)
His excellence Shaykh Abul Hasan Mubashshir Ahmad Rabbani(may Allah preserve him)
His excellence Shaykh Javed Iqbal Sialkoti (may Allah preserve him)
This is a translation of the original text of the fatwa which was issued in the Urdu language.