Rulings and issues for a husband who discovered a romantic relationship between his wife and another man

Firstly: 

If it has become clear to you
that she is having a haraam relationship with another man, or it becomes
clear to you that she is committing zina, or she admits that to you, it is
permissible for you to put pressure on her to give up the delayed portion of
her mahr. 

Allah, may He be exalted, says
(interpretation of the meaning):

“O
you who believe! You are forbidden to inherit women against their will, and
you should not treat them with harshness, that you may take away part of the
Mahr you have given them, unless they are guilty of brazenly immoral
conduct. And live with them honourably. If you dislike them, it may be that
you dislike a thing and Allah brings through it a great deal of good”

[an-Nisa’ 4:19]. 

“brazenly
immoral conduct”
does not refer only to zina; rather it also includes open defiance and
disobedience towards a husband, and reviling him and his family. So it is
more apt that having a haraam relationship with another man should also be
included in that and come under the same ruling. 

Ibn Katheer (may Allah have
mercy on him) said: 

With regard to the words “unless
they are guilty of brazenly immoral conduct”,
Ibn Mas‘ood, Ibn ‘Abbaas, Sa‘eed ibn al-Musayyab, ash-Sha‘bi, al-Hasan al-Basri,
Muhammad ibn Sireen, Sa‘eed ibn Jubayr, Mujaahid, ‘Ikrimah, ‘Ata’, al-Khurasaani,
ad-Dahhaak, Abu Qilaabah, Abu Saalih, as-Suddi, Zayd ibn Aslam, and Sa‘eed
ibn Abi Hilaal said: What is meant by that is zina, i.e., if she commits
zina, then you have the right to ask her to return the mahr that you gave
her, and to  put pressure on her so that she will give it up to you and you
will divorce her by khula‘, as Allah, may He be exalted, says in Soorat al-Baqarah
(interpretation of the meaning):

“And
it is not lawful for you (men) to take back (from your wives) any of your
Mahr (bridal money given by the husband to his wife at the time of marriage)
which you have given them, except when both parties fear that they would be
unable to keep the limits ordained by Allah (e.g. to deal with each other on
a fair basis). Then if you fear that they would not be able to keep the
limits ordained by Allah, then there is no sin on either of them if she
gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)”

[al-Baarah 2:229]. 

Ibn ‘Abbaas, ‘Ikrimah and ad-Dahhaak
said: “brazenly
immoral conduct” is
defiance and disobedience. 

Ibn Jareer – i.e., at-Tabari –
favoured the view that it includes all of that: zina, disobedience,
defiance, being sharp-tongued, and so on. 

In other words, all of that
makes it permissible to put pressure on her so that she will give up her
rights, or part of them, so that he may leave her, and this is good. And
Allah knows best. 

Tafseer Ibn Katheer
(2/241). 

It is essential to understand
that the mere fact that the wife has committed zina does not mean that her
right to the mahr is waived. 

Shaykh al-Islam Ibn Taymiyah
(may Allah have mercy on him) said: 

The right to the mahr is not
waived just because she commits zina, as is indicated by the words of the
Prophet (blessings and peace of Allah be upon him) to the couple who engaged
in li‘aan, when the husband asked about his money; he said: “No, you are not
entitled to any money from her. If you were telling the truth against her,
then it is in return for what was made permissible to you of intimacy with
her, and if you were telling lies against her, then you have even less right
to it.” That is because if a woman commits zina, she may repent, but the
fact that she has committed zina makes it permissible for him to put
pressure on her, so that she will ransom herself from him if she chooses to
leave him, or she should repent. 

Majmoo‘ al-Fataawa
(15/320) 

Secondly: 

Whatever a woman takes from her
husband’s wealth without his knowledge may be one of two things: 

1.She has taken it to spend on herself and on her children and house,
and the reason for her doing that is stinginess and miserliness on her
husband’s part.

2.She has taken it in order to buy luxuries, or to give the money to
her family, and other kinds of spending. 

In the first case, it is not
permissible for the husband to ask her to give this money back, because she
took something that she is entitled to, because spending on the wife and
children is obligatory upon the head of the household. If he falls short in
that or refuses to do it, it is permissible to take from his wealth, even if
that is without his knowledge. 

It was narrated that ‘Aa’ishah
(may Allah be pleased with her) said: Hind – the wife of Abu Sufyaan – said
to the Prophet (blessings and peace of Allah be upon him): Abu Sufyaan is a
stingy man and he does not give me enough for me and my child, except what I
take from him without him knowing. He said: “Take that which will suffice
you and your child on a reasonable basis.” 

Narrated by al-Bukhaari (5049)
and Muslim (1714). 

An-Nawawi (may Allah have mercy
on him) said, discussing what we learn from this hadith: 

… If a person has some right
over another but he is not fulfilling it, it is permissible to take from his
wealth as much as he is entitled to, without his permission. 

Sharh Muslim
(4/373) 

In the second case, it is not
permissible for your wife to take anything from you without your permission,
and if she does that then she is sinning, and you have the right to ask her
to return what she took; if she refuses, you have the right to take back
your wealth from the deferred portion of her mahr or from anything else of
her wealth that you owe her. 

Thirdly: 

The basic principle is that the
mother is more entitled to custody of her children – before the age of seven
years – so long as she has not remarried. What is meant by custody is not
merely providing food, drink and shelter; it also includes teaching them,
educating them, teaching them morals and manners, and taking care of their
psychological wellbeing. If the mother is a disbeliever or an evildoer, it
is not permissible to give her custody of her children. What matters with
regard to custody is not that the one who has custody should be a father or
a mother; what matters is what he or she can offer the child of care and
Islamic upbringing and education. Based on that, the parent who is more
entitled to custody is one who is better in terms of religious commitment.
If the mother, after her divorce, is continuing to follow misguidance and
commit sin, it is not permissible to give her custody of her children, and
in that case custody should be given to the father, but if she repents and
mends her ways, then she is more entitled to custody of them so long as she
has not remarried, for “the one who repents from sin is like the one who
never sinned.” 

Ibn al-Qayyim (may Allah have
mercy on him) said: 

Our shaykh – i.e., Ibn Taymiyah
– said: If one of the parents fails to teach the child and enjoin upon him
that which Allah has enjoined, then he is a sinner and is not entitled to
guardianship over the child; rather anyone who fails to undertake the duties
of guardianship is not entitled to guardianship. In fact he should either
give up guardianship and hand it over to one who will do what is required,
or someone should be made a co-guardian with him who will do what is
required, because the aim is to achieve obedience to Allah and His
Messenger. 

Our shaykh said:

This right is not the right of
inheritance which is attained by ties of kinship, marriage or wala’, and is
the same regardless of whether the heir is an evildoer or righteous; rather
it is more akin to rights of guardianship, with regard to which it is
essential that the individual be able to carry out the duties, have
knowledge thereof and do them to the best of his ability. 

He said: if we assume that the
father marries a woman who does not pay any attention to the interests of
his daughter, and does not take care of her, and her mother is more able to
take care of the daughter’s interests than that co-wife, then in this case
custody should definitely be given to the mother. 

It should be understood that
there is no general shar‘i text to suggest that priority be given to one of
the parents in all cases, or that the child should be given the choice
between his parents in all cases. The scholars are unanimously agreed that
neither of them is given priority all cases; rather one who is a
transgressor and negligent should not be given precedence over one who is
righteous, fair and will treat him well. And Allah knows best. 

Zaad al-Ma‘aad
(5/475, 476) 

Please see also the answer to
question no. 20705. 

Fourthly: 

Divorce of a pregnant woman is
acceptable according to sharee‘ah and is in harmony with the Sunnah. Many
ordinary people think that it does not count as such, but their view has no
basis in Islamic teaching; rather it is a divorce that is in harmony with
the Sunnah. 

Muslim (1471) narrated the
story of how Ibn ‘Umar divorced his wife; according to this report the
Prophet (blessings and peace of Allah be upon him) said:
“Tell him to take her back,
then divorce her when she is pure or pregnant.”

Ibn ‘Abd al-Barr (may Allah
have mercy on him) said: 

With regard to one who is
pregnant, there is no difference of opinion among the scholars that divorce
in this case is in accordance with the Sunnah, from the beginning to the end
of pregnancy, because her ‘iddah ends when she gives birth. Similarly, it is
proven from the Prophet (blessings and peace of Allah be upon him), in the
hadith of Ibn ‘Umar, that he instructed him to divorce his wife when she was
pure or pregnant, and he did not specify either the beginning or end of
pregnancy. 

At-Tamheed
(15/80) 

We have quoted a fatwa from
Shaykh Ibn Baaz (may Allah have mercy on him) on the ruling on divorce of a
wife who is pregnant, in the answer to question no.
12287. 

As this is the case, you can
divorce your wife with one, revocable talaaq, after which you have the
choice: either you can take her back during the ‘iddah  – which lasts up
until the time she gives birth – if you see that she has mended her ways and
you are convinced that she has repented – or you can wait until the ‘iddah
ends, after which she will become revocably divorced. At that time she will
become free to choose her own destiny, but you can take her back if she
wants that and her guardian agrees to it, with a new marriage contract and
mahr, because she will have become a stranger (non-mahram) to you. 

You should not issue three
divorces in one sitting, or in one sentence, because that is a way of
divorce that is contrary to the Sunnah. 

Please see the answer to
question no. 36580 

And Allah knows best.