A complex marital dispute: a secret affair and a disputed nikāḥ

Question

In a family husband wife son and a daughter (retarded) son a bright student of 13 years old.In this family husband is having a private mistress (divorcee)all of a sudden this illegal affair becomes public this man says that we had made Nikah but doesn't want to give such witness or details, In fact he is lying. In such a situation, what is the ruling of Sharia ? Girl doesn't want a divorce but she is having many problems to face,she had left the husband house,as husband tortures by offering if she wants sex he will arrange someone for his wife.etc etc. The problem is the retarded daughter a young girl becomes so misbehaviour and violent uncontrollable. In this case a counciling course is necessary which is very expensive next the sons education most important,all of these cannot be done at her parents house as their house is small besides they are unsupportive. In such a situation, to bring up her children she needs the money facility which is available at her husband's home, husband parents are requesting the girl to come back even the husband too has msgd to come back (seems to create a proof to safeguard himself) in between couple of arbitrators are involved to settle the case by saying bygones are bygones forget the past we are there to look after. the girls demand is that children's responsibility is not my alone, I will come back if he gifts the house officially to our children along with my life interest, this is because I have been told many a times to get out from the house and shall give the required expenses money with accountability, and I will not do any of his work or talk, he should not come to me. The sole purpose is to look after bring the children up. Now the question arises, whoever are trying to settle this issue is valid or not,since chap is visiting this illegal wife everyday morning and night,does hics original Nikah becomes null and his new so called wife if no nikah than it becomes Zina (if the Nikah is not proved)on the other hand if arbitrators settles Adultery case,is it correct to say an abetting and aiding case, which jeopardize their on Nikah.

Pls enlighten the Sharia ruling by any Ulemas.

Answer

وعليكم السلام ورحمة الله وبركاته

In the case that the man has truly committed zinā (adultery) with the other woman and has not married her in reality, then the man has certainly committed ḥarām and has made himself deserving of the punishment of the hellfire. He has committed a major sin, and it is incumbent upon him to repent sincerely from his wrongdoings. However, despite the magnitude of the man’s sin, such an act will not invalidate or nullify the first nikāḥ – the first woman’s nikāḥ to him remains intact and unimpacted.

Merely saying that, 'we had made nikāḥ', in public doesn't constitute a valid nikāḥ. ‘Ījāb and qabūl in the presence of witnesses is required for a nikāḥ to be valid. If that had occurred prior to any relationship with the other woman in question, then the accusation of zinā is false and a major sin itself.

He must either prove the nikāḥ with this woman or do sincere tawbah and abstain from any contact with this woman until his nikāḥ has been done according to the sharī`ah if he wishes to continue his relationship with her.

As for the wife, if she is being tortured and being offered ḥarām instead of her rights, then she has the right to demand divorce and separate from the husband. He is sinful for these unlawful actions. However, to make the demand of remaining as a wife and to receive her rights yet not fulfill any of the husband's rights is unjust and against the sharī`ah. The right of the wife is that the husband provides a place of stay that is not shared with any other and that he provides maintenance which consists of food, drink, and clothing. This place of stay is not required to be in her name or the children's name. It is the duty of the wife to obey the husband and speak to him when he asks her to.

Whether the wife decides to remain in nikāḥ with the man or not, the burden of providing for the children remains on the shoulders of the man. Ṣadr al-Sharī`ah Muftī ‘Amjad `Alī, may his secret be sanctified, states:

نابالغ اولاد کا نفقہ باپ پر واجب ہے جبکہ اولاد فقیر ہو یعنی خود اس کی ملک نہ ہو اور آزاد ہو

“The immature child’s expenditure is necessary upon the father in the case that the child is poor, i.e., he has no possessions of his own, and he is free.”

[Bahār e Sharī`at, Vol. 8, Chapter of Nafaqah]

The husband is the one responsible for the expenditure of his children. Even in the case that he did not currently have the means for it, Ṣadr al-Sharī`ah writes:

نابالغ کا باپ تنگ دست ہے اور ماں مالدار جب بھی نفقہ باپ ہی پر ہے مگر ماں کو حکم دیا جائیگا کہ اپنے پاس سے خرچ کرے اور جب شوہر کے پاس ہو تو وصول کرلے

“If the father of the immature child is poverty-stricken and the mother is wealthy, even then the [burden of] expenditure remains on the father. However, the mother will be given the command that she spends from her own possessions and when the husband has it, she may attain it [from him].”

[Bahār e Sharī`at, Vol. 8, Chapter of Nafaqah]

To provide for his children and fulfill their necessities is the responsibility of the man. He must fulfill this by providing them a residence – be it by him transferring ownership of the property to them, or by renting another residence in their name, and Allāh knows best.

Faqīr Sayyid `Abdul Ṣamad al-Qādirī · (may he be pardoned) · Jumādā al-'Ākhirah 25, 1446 AH