Marriage not Consummated Due to Medical Condition, then Divorce

Marriage not Consummated Due to Medical Condition, then Divorce

Question:

I pronounced 3 divorces in 3 separate sentences (I divorce you, I divorce you, I divorce you) to my wife. We have been married for over a year, but our marriage is yet to be consummated. Although we have been in privacy and tried to consummate our marriage on numerous occasions, this has been prevented due to a medical problem with my wife. She visited a lady doctor who advised that it seems she has a condition called Vaginismus, which refers to involuntary tightness of the vagina during attempted intercourse. The tightness is actually caused by involuntary contractions of the pelvic floor muscles surrounding the vagina. The woman does not directly control or ‘will’ the tightness to occur; it is an involuntary pelvic response. She may not even have any awareness that the muscle response is causing the tightness or penetration problem.
Can you please advise whether in such conditions all 3 divorces were valid or not. I have read a ruling on your website that 3 divorces pronounced in 3 separate sentences result in only one divorce before consummation of marriage. If so, we would like to re-marry.

Answer:

In the name of Allah, Most Compassionate, Most Merciful,

As explained in detail in a previous answer, which you have referred to, titled: ‘Three Divorces before Consummation of Marriage’ that according to the Hanafi School when a marriage is not consummated, three divorces pronounced in one sentence, such as saying: ‘I divorce you thrice/three times’ do result in three; but if pronounced in separate sentences, such as saying: ‘I divorce you, I divorce you, I divorce you’ only the first divorce comes into effect, and not the second and third one. (See: Al-Fatawa al-Hindiyya 1/373)

The reason for this is that the pronouncement of three divorces in one sentence results in all three being directed to one’s wife jointly, and as such, they all come into effect, even if the marriage is not consummated. However, when the pronouncement takes place in three separate sentences in a non-consummated marriage, the wife is irrevocably and absolutely divorced with the first pronouncement of divorce, because she is not obliged to observe the post-marriage waiting period (idda) due to the marriage not being consummated. As such, the second and third pronouncements of divorce will be considered futile. (See: Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/284-286)

However, this ruling of the second and third divorces not being counted applies only if, in addition to the marriage not being consummated, the couple since marriage were not alone in a way that they had an opportunity to have sexual intercourse (khalwa al-sahiha). Thus, even if the marriage was not consummated but the couple were alone, the second and third divorces would count, because ‘being alone (khalwa)’ here has the same implication as that of consummation itself. A woman divorced before consummation but after ‘Khalwa’ is also obligated to observe the waiting period (idda), and as such, the subsequent divorces pronounced by the husband will be valid. (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/119)

It is important, however, to understand the legal definition of ‘Khalwa’. The renowned Hanafi Jurist, Imam Haskafi (Allah have mercy on him) states in his Al-Durr al-Mukhtar:

‘And being alone (khalwa)… without a physical (hissi) prevention such as the illness of a spouse which prevents sexual intercourse…, without a natural (tab’i) prevention such as the presence of a third person who understands… and without a Islamic Jurisdictional (Shar’i) prevention such as being in a state of Ihram… [This type of Khalwa] takes the same ruling as that of consummation itself… in terms of a second non revocable divorce occurring.’ (See: Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/114-119, Matlab fi Ahkam al-Khalwa)

In other words, being alone (khalwa) is only considered effective when there are no physical/medical, natural or Islamic preventions from having sexual intercourse. The couple had an opportunity to consummate the marriage but opted not to out of their own choice. However, if any of the above preventions take place during Khalwa because of which the couple are unable to consummate their marriage, then this Khalwa is of no consideration, and it will be as though they did not remain alone.

After providing the above definition of Khalwa, Imams Haskafi and Ibn Abidin (Allah have mercy on both) mention certain instances where a physical/medical problem with the wife may prevent penetration. For example, the wife’s vagina is blocked or nearly so because of abnormal growth of flesh (ratq) or bone (qarn) thus preventing penetration, or the spouse is too young to engage in sexual intercourse. (Ibid)

Thus, in the situation you have described, if your wife’s medical condition indeed prevented vaginal penetration and you had thereby been unable to physically consummate the marriage, then your being alone with her will not be considered effective. As such, your pronouncements of three divorces in separate sentences will be judged to have occurred prior to proper seclusion (Khalwa Sahiha), and as such, the second and third divorces do not count. You are free to remarry her. However, you must be careful in determining whether this was a genuine medical condition or merely anxiety reaction before sexual relations. It is worthwhile to seek professional medical advice on the matter.

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Question #: 5780
Published: 10/06/2010