Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

As Salaam Aleikum wa Rahmatullahi wa Barakatuh.

Dear Brother In Islam, Assalamalikum.

My question is:

Happily married couple, without any children. Husband is a military officer, due to war he is on the duty at line of control. He is captured by the opponent as POW. Family and his country think he is dead. Bride is young so the family gets her married to another man. She is happily married and expecting a baby from her 2nd husband. One day the other county release the POW and he (the first husband) returns home. How can we resolve this issue? Does the bride should go back to her first husband or she should stay with the 2nd husband?

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Answer:

First Husband returns

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is no one (no idol, no person,  no grave, no prophet,  no imam,  no dai,  nobody!) worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

A person who disappears and is presumed dead is what is known as a ‘mafqoodh’ in Islamic Jurisprudence.  If the person is presumed dead, and his wife marries again, and after some time the first husband returns; Shariah Law stipulates that the second ‘nikaah’ of the woman will automatically be annulled and the first husband has a bigger right to take his wife back.  The ‘nikaah’ that was performed with the first husband will be deemed valid and there is absolutely no need to perform the nikaah again if the couple wish to live together as husband and wife.

If after studying the conditions, the first husband does not wish to take his wife back, he must pronounce divorce upon her if he wishes to separate from her, and after fulfilling her ‘waiting period’ or ‘iddah’ of divorce, the wife is free to marry the second husband or anyone else she wishes with a brand new ‘nikaah’ being performed.

If the first husband wishes to take his wife back, but the wife does not wish to continue their marriage, she must either ask the first husband to divorce her or she may initiate a divorce proceedings against her first husband in a Shariah Court. 

The child born from the second marriage will be deemed absolutely legal, will take the name of his biological father, and he will inherit his biological parents and they will inherit from him.

Your Question: Does the bride should go back to her first husband or she should stay with the 2nd husband?

As soon as the ‘mafqoodh’ or the person who had disappeared returns, the second marriage of the woman will automatically and immediately be annulled, and the first husband has a bigger right to demand his wife back. 

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone.  Allah Alone Knows Best and He is the Only Source of Strength.

Your brother and well wisher in Islam,

Burhan