Fatwa No : 89375
Marrying the Wife of a Missing Husband

Marrying the Wife of a Missing Husband

The girl I wish to marry had a first husband who was Chinese. He abandoned her and disappeared. She waited for him for seven years and also tried to contact him, but he could not be found. Her family wishes for her to marry me, and the girl herself is also willing. What should I do? Is the marriage permissible?

الجوابُ حامِدا ًو مُصلیِّا ً

In the situation mentioned, if the woman’s husband was a Muslim and the marriage was conducted properly in the presence of valid Shari‘ah witnesses, then the original ruling for her is that if she is able to remain patient and live her life with chastity and modesty, it is better for her to do so. However, if she cannot remain patient, and a situation of genuine necessity arises—such as being unable to provide for herself, or facing a strong risk of falling into sin due to living without a husband—then there is a concession for her to obtain release from the marriage of the missing husband by following the procedure outlined below. The procedure is as follows:
The woman must present her case before a Muslim judge (hakim) and establish, through proper Shari‘ah testimony, that she was married to a certain man. Then, through witnesses, it must also be proven that he is missing and cannot be found. Thereafter, the judge must personally initiate an investigation and search for the missing husband. Wherever it is strongly suspected that the missing person may have gone, a person must be sent to search. In places where there is no strong likelihood but only a possibility, if the judge considers sending letters sufficient, he may send letters to conduct inquiries. If there is hope that publishing an announcement in newspapers may yield information, that too should be done. In short, every possible effort must be made in investigating and searching for the missing husband. When the search has been thoroughly conducted and there is no hope left of finding him, the judge should order the woman to wait for an additional four years. If during these four years the missing husband is still not found, the woman may again submit a request to the judge. At that point, the judge will issue a ruling declaring him deceased. After this ruling, the woman must observe the waiting period (iddah) of four months and ten days for a deceased husband, after which she will be permitted to marry another man.
Furthermore, if the woman expresses before the court that there is a severe risk of her falling into sin, and after having already waited a long period for the missing husband, she is compelled to submit her request while no longer able to remain patient, then there is also scope for dissolution after one year of waiting. In such a case, this dissolution will be considered a talaq-e-ba’in (irrevocable divorce). Note that any period spent waiting before submitting the case to the judge will not be counted.
Additionally, the woman does not automatically become separated from her first husband without the ruling of a judge. When she submits the case to the judge, the judge must conduct full investigation and search, grant a waiting period, and only after the expiry of that period may he proceed according to the method described above.

مأخَذُ الفَتوی

کما فی حاشية ابن عابدين: (هو) لغة المعدوم. وشرعا (غائب لم يدر أحي هو فيتوقع) قدومه (أم ميت أودع اللحد البلقع) أي القفر ،(کتاب المفقود ، ج:4،ص:292،ط:ایچ ایم سعید)-
وفی فتح القدیر: وتکون الفرقۃ تطلیقۃ بائنۃ عند أبی حنیفۃؒ لأن فعل القاضی انتسب إلیہ کما فی العینین(۴/۱۱۹)-
و فی الھدایۃ: و لا یفرق بینہ و بین امرأتہ و قال مالک اذا مضی اربع سنین یفرق القاضی بینہ و بین امرأتہ و تعتد عدۃ الوفاۃ ثم تزوج من شاءت لان عمر رضی اللہ عنہ ھکذا قضی فی الذی استھواہ الجن بالمدینۃ و کفی بہ اماماً و لانہ منع حقھا بالغیبۃ فیفرق القاضی بینھما بعد ما مضی الخ۔(کتاب المفقود، ج؛ 2، ص: 622، ط: رحمانیۃ)-
و فی فتح القدیر: وإذا کان الزوج غنیاً اجلہ الحاکم لسنۃً فان وصل الیھا إلا فرق بینھا إذا طلبت المرأۃ ذلک وتلک الفرقۃ تطلیقۃ بائنۃ لان فعل القاضی اضیف إلی الزوج۔(۴/۱۲۹)-