My sister fell under the influence of her head and secretly married him, now her husband is in prison, how to divorce with him?
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Question: My sister came for a new job where she was under the influence of her chief. He persuaded her to marry him in secret from our parents. But then it turned out that he was a dishonest man, he was involved in financial fraud and he cheated many people. There was a trial, and he was put in a prison for a long term. During the investigation and trial he denied the marriage with my sister. How can she get a divorce from him? To the prison where he is being held, we can’t get, there is no communication with him. Can she get a divorce on the basis of the fact that they were married without the consent of our parents and that her husband went missing? (Saida)

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Answer:

Assalamu Alaikum Wa Rahmatullahi Wa Barakaatuh

According to the Hanafi Madh-hab, the marriage of a girl without the consent of her guardian will be valid on condition that the groom is compatible with the bride. When we talk about compatibility, we mean that they are on a similar social level, religious level and financial level or the groom is higher than the girl in these factors. If the groom is considerably lower than the girl in any of these factors, the Nikah will not be valid at all.

Your sister’s case needs to be analyzed carefully. If it is established that groom was significantly lower than her in the abovementioned issues of compatibility, her Nikah will be null and void. She should raise the matter with her local Qadhi or Imam to have the marriage officially terminated.

If she is a follower of the Shafi-ee, Maliki or Hanbali Madh-hab, then her Nikah is invalid due to her not having the consent of her rightful guardian. There is no need to analyze whether they are compatible or incompatible according to these Madh-habs.

Assuming that she is a follower of the Hanafi Madh-hab and the marriage was valid due to them being compatible at that time, she can still obtain a divorce from her husband. In this case, it will be advisable that she raises the matter to her local Muftiyat to request her husband to give her a divorce. If he refuses to comply, she may request for dissolution of the marriage based on the grounds that he is imprisoned and that he is not providing financial support for her.

It will be necessary to follow proper procedure when applying for dissolution and hopefully, her local Muftiyat will advise her on the correct procedure.

And Allah Knows Best.

Wassalaam.

Mufti Suhail Tarmahomed

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