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Irsyad al-Fatwa #193.PNG

 

Question:

In the drama ‘Menanti Februari (Waiting for February)’, the husband went missing at sea for six months. The wife marries another guy during that time. One day, the husband returned home, finding his wife is married to his best friend. What is the ruling of the marriage?

Answer:

Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.

Definition of Mafqud (Missing Person)

The word al-mafqud originates from Arabic language from the root word fa qa da which means lost, missing and disappear [1].

Imam al-Syafie defines it as: “Whoever that is unheard from (does not send any word).” [2]. Imam al-Nawawi defines mafqud as: “Someone that is unheard from and his whereabouts are unknown during his travels, war or shipwreck and others.” [3]

The contemporary scholars from mazhab Syafie states mafqud as: “A person missing from his place of residence for a long time with no news and it is unknown whether he is alive or dead.” [4]

The Duration of Mafqud in Mazhab

There are no clear Quranic or prophetic evidences that set certain durations for mafqud before a person is presumed dead (legal presumption of death/declared dead in absentia).

Most opinions for the duration of mafqud are from the opinions of the companions of the Prophet PBUH, however, there are no opinion from ijma’ (scholarly consensus) regarding this issue, for the differing opinions are from the opinions of the companions and the tabi’en. However, the scholars agreed that it is necessary to determine the duration of a mafqud.

The Prophet PBUH said:

امْرَأَةُ الْمَفْقُودِ امْرَأَتُهُ حَتَّى يَأْتِيَهَا الْبَيَانُ

“For the wife of a missing person, she will be considered as his wife until a clear evidence come proving otherwise.”

Sunan al-Baihaqi (15565)

Before we explain the duration for mafqud according to mazhab Syafie and other mazhab and legislation system in Malaysia, first let us explain about the following situations:

  1. A missing husband but he can be contacted, and his condition is known. In this situation, the wife does not have any right to marry another man. However, if the husband is unable to provide for her, then she has a right to demand for fasakh through a qadhi.
  2. A missing husband, where his condition and location are unknown. In this situation, the fuqaha have differing opinions regarding this issue. The details are as follows:

 

First: Mazhab Syafie

 

According to qaul jadid of Imam al-Syafie (the opinion which is presented by al-Imam al-Syafi’e when he stayed in Iraq), the duration for the wife to wait before marrying another man is until she has confirmation of her husband’s death or that he has divorced her. However, according to qaul qadim (the opinion which is presented by al-Imam al-Syafi’e when he stayed in Egypt) of Imam al-Syafie, the duration is 4 years with the addition of the duration of ‘iddah, which is 4 months and 10 days. This is also the opinion of Umar bin Al-Khattab, ‘Uthman bin ‘Affan, Ibn ‘Abbas, Ibnu ‘UmarMalik bin Anas, and Ahmad.

The strong opinion among the scholars of al-Syafie is that the duration must be determined by the judge for the case. However, there are also opinions stating the duration for mafqud as 68 years, 70 years, 80 years, 100 years and 120 years. [6]

Second: Mazhab Hanafi

 

In mazhab Hanafi, a missing person is presumed dead when all the people that lived in the same time of life as him are all dead. However, scholars of mazhab Hanafi did not set a certain age for someone to be declared as dead.

For Imam Abu Hanifah, he declared death for a missing person if the missing person has reached 120 years old and this opinion is supported by al-Qadwari. Abu Yusuf set the age as 100 years old, and there are some scholars that state the age depends on the ijtihad of the judge, taking into consideration the condition of the missing person and the evidences presented to him.

 

Third: Mazhab Maliki

 

According to mazhab Maliki, if a person went missing in Muslim countries, he can be declared dead after the waiting for a duration of 4 years. Furthermore, his wife has to complete her ‘iddah of 4 months and 10 days for the death of her husband before she can marry another man.

If he went missing in other countries (other than Muslim countries), then he cannot be presumed as dead before valid evidences are presented to the court or if he has reached an age where it will be impossible for anyone to be alive at the age. Imam Malik and Ibn Qasim state the age is around the age of 80 years old, while Ibn Arafah said it to be around 75 years old. There are also scholars that hold the opinion that it is the same as a person who went missing in Muslim countries.

If a person went missing during a war against the non-Muslims, Imam Malik and Ibn Qasim’s opinion states that the wife has to wait for a year before completing her ‘iddah. There are also opinions in mazhab Maliki that ruled it the same as someone who went missing in countries other than Muslim countries.

If a person went missing in a war between Muslims, then there are differing opinions in this mazhab, some state that the wife has to wait a year before completing her ‘iddah, while others state that it depends on the ijtihad of the judge or the ruler.

 

Fourth: Mazhab Hanbali

 

According to scholars of mazhab Hanbali, there are two opinions for someone who went missing but his departure is generally considered as safe:

  1. The husband and wife are considered married until there is evidence that proves that the husband had died.
  2. The wife has to wait until her husband reached the age of 90 years old, and there are other narrations that state that the duration is determined by the ruler or mufti. This is the strong opinion in mazhab Hanbali.

If a person went missing and his departure is considered as dangerous, then the wife has to wait 4 years before she starts her ‘iddah for the death of her husband. [9] To determine the general duration of mafqud, it depends on the ijtihad of the judge, according to the time he went missing for a long time and that there are no longer people that are of the same age as him that are still alive. [10]

The Duration of Mafqud According to the Syariah Law in Malaysia

Section 806 of the Syariah Court Evidence (Federal Territories) Act 1997 (Act 561) provides for:

When the question is whether a person is alive or dead, and it is evident that no news has been heard about it for four years by the person who should have heard of it if he is alive, then the burden of proving that he is still alive switched to the person affirming it.

This provision is reinforced by section 53 (1) of the Islamic Family Law (Federal Territories) Act 1984 (Act 303) stating that:

"If the husband of any woman is dead, or is believed to have died, or has not heard about  for a period of four years or more, and such circumstances as he may, for the purpose of enabling her to remarry, be considered in accordance with Syara’ law as dead, the Court may, on the petition of the woman and after such reasonable inquiry, issue in the prescribed form a certificate of the death of the husband and the Court may on the petition of the woman make an order for the dissolution of marriage or fasakh as provided for under section 52. "

The Statement of Mufti Wilayah Persekutuan

After discussing the opinions of Islamic scholars, we are inclined towards the opinion that states that the duration for mafqud depends on the decision and consideration of the judge. This is in line with a strong opinion in mazhab al-Syafie. Furthermore, it corresponds to the act stipulated in Malaysia through the Syariah Court. Which means, if the judge decides that the duration is 4 years or more, then the wife has to wait, and it is permissible for her to remarry after completing her ‘iddah. Thus, after 6 months – as an example – there is an evidence that proves her husband has died, then the wife can straight away start her ‘iddah and after its completion, she can remarry.

If the husband returned after the duration of mafqud ended, he has a right to choose to remarry his wife or accept the returning of the mahar given before (consenting to his wife’s new husband). This is in accordance with a statement by Saidina Umar and Saidina Uthman:

إِنْ جَاءَ زَوْجُهَا خُيِّرَ بَيْنَ امْرَأَتِهِ وَبَيْنَ الصَّدَاقِ الْأَوَّلِ

When the husband returned (after the duration of mafqud ended), then the husband can choose to take his wife back or accept the return of his wife’s mahar.

Sunan Abi Syaibah (16723)

Regarding the issue of the drama ‘Menanti Februari’ (Waiting for February), if the husband went missing at sea (in Malaysia for example), then the duration for mafqud depends on the decision of the judge after consulting with Malaysian Maritime Enforcement Agency, the Prime Minister's Department who are responsible for carrying out maritime search and rescue duty at the Maritime Zone of Malaysia and in the deep seas.

Hence our opinion are as follows:

  1. The marriage of the wife with her new husband is invalid for the duration of mafqud stated is 6 months without any scene showing that the wife receives a court decision regarding her marriage status with her missing husband.
  2. The first wife is still considered as a legitimate wife of the missing husband for the duration for mafqud has not ended.
  3. The child that the wife is pregnant with, as a result of her relationship with her second husband is considered as a syubhah (doubtful) child conceived from syubhah (doubtful) intercourse and is named as the child of his or her biological father (the second husband) and the child will inherite from the father. The scholars agree to the obligation of ‘iddah and the validity of lineage from an invalid marriage due to marrying another man’s wife, if there are syubhah (doubts) that nulls the fornication ruling, for they did not know the prohibition of the marriage. Hence, the marriage (invalid) is not considered as fornication, and the chid is considered as the child of the man that have intercourse with the mother. [11]
  4. The wife is unable to ask for fasakh to the court, for fasakh can only be asked if the husband went missing for more than a year, while in the drama, the husband has been missing for just 6 months. Refer to Section 52 Order to Disperse Marriage or For Fasakh In Islamic Family Law (Federal Territories) Act 1984 Act 303.

Conclusion

Husband and wife should know the basis in religion, and if they don’t, they should ask the people who are experts in Islamic family law. Our advice to Malaysian film and drama directors, is that the views of the authorities such as the Islamic Development Department (JAKIM) should be taken seriously in order to uphold the industry as syariah-compliant industries. Drama and film are an excellent medium to spread Islamic understanding and noble values across any religious boundaries. May Allah give us good understanding of religion and protect us and our families from anything that destroys the marriage institution.

End note

[1] Ibn Manzur, Lisan al-'Arab

[2] Al-Syafie. Al-Umm, 6/182.

[3] Al-Nawawi, Raudhah al-Talibin, 6/34.

[4] Mustaffa al-Khan et.al. Al-Fiqh al-Manhaji. 2/331; Wahbah al-Zuhayli. Al-Fiqh al-Islami wa Adillatuh, pg. 784-785.

[5] Ibn Hajar al-Haitami. Tuhfat al-Muhtaj, 2/253-254

[6] Al-Khatib Al-Syarbini. Mughni al-Muhtaj, 3/38; Sulaiman bin Muhammad bin Umar. Hasyiah al-Bujairimi, 3/260.

[7] Muhammad bin Ahmad bin Abi Sahal al-Sarkhsi. Al-Mabsut, 11/ 37-38; ‘Ala al-Din Abi Bakar bin Mas’ud al-Kasani. Badai’ al-Sanai’ fi Tartib al-Syarai’, 5/289 & Ibn Nujaim.  Al-Bahr al-Raiq, 5/178.

[8] Malik bin Anas, Al-Mudawwanah al-Kubra, 2/30-31; Muhammad Arifah Al-Dusuki, Hasyiah al-Dusuki ala Syarh al-Kabir, 2/479.

[9] Al-Buhuti. Kasyfa al-Qina’ An Matan al-Qina’, 4/515.

[10] Muhammad Toha Abu al-Ula Khalifah, Ahkam al Mawarith: Dirasah Tatbiqiyyah, pg. 542

[11] Mausu’ah al-Fiqhiyyah al-Kuwaitiyah, 8/123-124.