Answer
Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
In this fatwa:
1- In a husband’s absence, a wife is not allowed to marry another man until she has resorted to a judge to take the due procedure either to notify him to come (if he is available) or to issue a judgment declaring him to be absent.
2- If at any time the first husband turns up, her second marriage cannot be annulled at all.
In his response to your question, Dr. Sano Koutoub Moustapha, professor of fiqh and its principles, International Islamic University, Malaysia, states:
Marriage never ends automatically; rather there are ways of nullifying marriage: by the husband’s actual uttering of the words of divorce, by his divorcing a wife in absentia, by the wife resorting to a judge who can declare the marriage contract annulled or by khul.
Islam calls upon husbands to keep in touch with their wives while they are away. In the event that you mentioned, his wife has a right to annul their marriage. The period she can wait should not be more than one year according to most of the schools of thought.
In other words, if a husband leaves a wife without communicating with her for more than one year, the judge should allow his wife to go for iddah, which is a three-month period, and all her expenses should be taken from the husband’s wealth if he has any.
Consequently, she is allowed to get married with whomever she wishes. However, if at any time the first husband turns up, her second marriage cannot be annulled at all.
In this regard, that lady should not be worried of doing anything wrong and her new marriage is legal and acceptable.
This issue is known in Islamic law as the issue of al-mafqud or the issue of a missing person.
Allah Almighty knows best.
Editor’s note: This fatwa is from Ask the Scholar’s archive and was originally published at an earlier date.