While answering a Question, you said, “As far as the directives of the Islamic Shari`ah are concerned, they do not expressly require of you to seek separation from your husband. In other words, the Islamic Shari`ah is silent about the status of an existing marriage after the wife converts to Islam. In view of this silence of the Shari`ah, there seems to be no ground to consider such a marriage as automatically repealed or prohibited to continue. Thus, in my opinion, the Islamic Shari`ah does not require you to seek separation from your husband.”
But one scholar has said in a similar situation:
When you accepted Islam, your marriage with your non-Muslim wife has terminated then. There is no question of divorce.
What are the basis on which this scholar has given this opinion; please elaborate. I think the problem of the woman is more sensitive than that of the man. I want clarity about it because a Japanese lady is facing such a situation.
The cited difference of opinion is actually the result of a difference of opinion regarding two things:
Firstly, the cited author apparently holds marriage between a Muslim and a non-Muslim to be prohibited, whereas, in my opinion, that is not the case;
Secondly, the cited author is apparently of the opinion that any existing or proposed marriage contract, between a Muslim and a non-Muslim is void and is, therefore, automatically severed and does not require a formal divorce.
I differ with the author on both these counts. As I have stated in a few of my earlier responses, the Qur’an has only expressly prohibited marriage between a Muslim (man and woman) and a polytheist (man and woman). The Qur’an has expressly allowed marriage between a Muslim man and a Jewish and a Christian woman. While the Qur’an is silent about marriage between a Muslim woman and a Christian and a Jewish man. In view of these facts, it is obvious that a clear prohibition exists only in marriages with polytheists. Other marriages can by no means be termed as among the clear and stated prohibitions of the Shari`ah.
As far as the second point is concerned, I am strictly of the opinion that because of the social nature of the marriage contract, it should only be severed or invalidated in a socially recognized manner. Thus, to avoid the potential social repercussions, especially for the woman, an existing marriage should only severed and invalidated according to the recognized legal framework of the society. In my opinion, therefore, there is no such thing as automatic severing or invalidation of an existing marriage.
It is obvious that had Islam not recognized the status of existing marriages, all those who accepted Islam at the call of the Prophet (pbuh) would then have been directed to renew their marriage contracts with their spouses (including, obviously, the Prophet himself), to make these marriages recognizable in the eyes of Islam. This, however, did not happen. All the existing marriages were recognized to be valid and no change of any status of the married couple was effected. In fact, we do not even find a single instance where the Prophet (pbuh) invalidated any existing marriage between a person, who accepted Islam and his/her existing spouse, even though the spouse still ascribed to the polytheistic creed.
Ibn Sa`d in his compilation of Muslim history “Al-Tabaqaat al-Kubraa”, in the life sketch of Zainab (ra) – the daughter of the Prophet (pbuh) – writes:
قدم أبو العاص بن الربيع الشام و قد أسلمت امرأته زينب مع أبيها… أن زينب بنت رسول الله كانت تحت أبي العاص بن الربيع فهاجرت مع رسول الله ثم أسلم زوجها فهاجر إلى رسول الله فردها عليه…عن بن عباس أن رسول الله صلى الله عليه و سلم رد ابنته إلى أبي العاص بعد سنتين بنكاحها الأول (الطبقات الكبيرج: ٨ ص: ٣٢-٣٣)
When Abu al-`aas ibn al-Rabiy` returned from Syria, his wife Zainab (the daughter of the Prophet) had accepted faith and had migrated to Medinah with her father. Later on, he (i.e. her husband) also accepted faith. They were not separated (i.e. there marriage was not invalidated during this time). Qatadah reports that Zainab, the daughter of the Prophet (pbuh) was married to Abu al-`aas ibn al-Rabiy`. She migrated to Medinah with the Prophet of God. Subsequently, her husband accepted faith and migrated to the Prophet of God. At that time, the Prophet (pbuh) gave Zainab back to her husband… According to Ibn Abbas (ra) the Prophet (pbuh) returned his daughter Zainab to Abu al`aas – her husband – after two years of separation, under the first contract of marriage between them (i.e. without effecting a new marriage contract between them).
It is quite clear that had existing marriages been automatically invalidated through the acceptance of Islam of any one or the other of the spouses, each of the companions’ marriages would have been invalidated and subsequently a new contract would have been effected.
In view of the stated points, I do not agree with the cited opinion of the referred author.
I hope this helps.
May 20, 2001