I traveled with my first wife to let her visit her family, and it happened that I divorced her there and came back home. About one month later, I had to meet her in a hotel in her country to give her back her belongings. While we were alone there, we kissed and hugged lustfully out of missing each other.
Now the iddah (waiting period during which divorce is revocable) has passed, and now I want to remarry her. So, do I have to remarry her with a new marriage contract, or are the kissing and hugging we did regarded as legal remarriage? Keep in mind that I did not have the intention of remarrying her when we kissed and hugged.
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- Muslim scholars unanimously agree that it is valid to legally return to one’s revocably-divorced wife (that is, in the first or second divorce) by a verbal statement.
2- Some scholars maintain that such actions as a kiss, a touch, or intercourse cause the valid return to one’s revocably-divorced wife as long as such actions are done lustfully, even if one does not have the intention of returning to her.
The Kuwaiti Fiqh Encyclopedia, states:
The Muslim scholars unanimously agree that (a man’s) touching and kissing with neither lust nor intention of legal return to his revocably-divorced wife do not cause the legal return to her.
However, they disagree concerning the effect of lustful kissing as follows:
The followers of the Hanafi School of fiqh view that one’s returning to his revocably-divorced wife through lustful sexual intercourse, touching, or kissing is valid—whether the kiss is on the lips, the cheeks, the chin, the forehead, or the head, whether it is done stealthily, and whether it is done while the ex-husband is asleep, forced, or insane—as long as he admits doing it.
They view that it does not matter whether it is the man or the woman who does so lustfully, provided that the man admits doing it. Yet, such actions do not cause a legal return if the revocably-divorced wife claims that her ex-husband did so and he denies.
On the other hand, the followers of the Maliki School of fiqh stipulate intention as a prerequisite for legal return to a man’s revocably-divorced wife.
They view that kissing his revocably-divorced wife causes their legal remarriage if the man has the intention of returning to her by so doing.
They also maintain that any action, even if it is sexual intercourse, does not cause their valid return if it is void of intention (to remarry).
The followers of the Shafi`i School of fiqh (and apparently Al-Khiraqi, who belongs to the Hanbali School) believe that actions like kissing, touching, or even having intercourse do not by any means cause the valid return to a man’s revocably-divorced wife.
This is because they believe that such actions are deemed prohibited in this case, and legal remarriage must be based on something lawful; therefore, the valid return takes place only by a verbal statement first.
However, the other opinion attributed to the Hanbali School is that sexual intercourse causes valid return to one’s revocably-divorced wife, even if it is void of intention.
Yet, according to the opinion reported to have been maintained by Imam Ahmad ibn Hanbal, mere lustful kissing or touching are not regarded as valid return to one’s revocably-divorced wife; still some Hanbali scholars regard it sufficient for valid return.
Moreover, in his well-known book, Hashiyah, Ibn Abidin stated the following while clarifying the ways of valid return to one’s revocably-divorced wife:
Returning to one’s revocably-divorced wife is valid if it is done through lustful kissing, whether the kiss is on the lips, the cheeks, the chin, the forehead, or the head, or through touching, whether there is a barrier or not, as long as it does not restrain one’s lust, or through staring lustfully at the woman’s sexual organ.
This opinion is not restricted to the followers of the Hanafi School, for the Kuwaiti Fiqh Encyclopedia attributes this opinion to many of the early Muslim scholars as follows:
This opinion of the Hanafi scholars is also narrated to have been maintained by many of the the Companions’ successors, such as Sa`id ibn Al-Mussayib, Al-Hasan Al-Basri, Muhammad ibn Sirin, Tawus, `Ata’ ibn Abi Rabah, Al-Awza`i, Ath-Thawri, Ibn Abi Laila, Ash-Shi`abi, and Sulayman At-Timi.
Furthermore, Ash-Shawkani said in this regard:
“The early Muslim scholars differed regarding the ways of validly returning to one’s revocably-divorced wife. Al-Awza`i views that it takes place through sexual intercourse, which is also the opinion attributed to some of the Tabi`in. It is also the opinion of Malik and Ishaq, but they stipulate that the man should have the intention of returning to his revocably-divorced wife through that sexual intercourse.
The opinion of the scholars of Kufa is the same as that of Al-Awza`i, yet they have added that such a valid return takes place also if the man touches her lustfully or stared lustfully at her sexual organ.
However, Ash-Shafi`i views that the valid return to one’s revocably-divorced wife takes place only by a verbal statement. Ash-Shafi`i’s argument is that divorce invalidates marriage (and its lawful practices).
This is also the opinion maintained by Imam Yahya. The apparent valid opinion is that maintained by the former scholars, for the `iddah is made as a chance to change one’s mind, which can be validly done through either a statement or an action.
This is also illustrated in the apparent meaning of the verse in which Almighty Allah says, ‘… And their husbands would do better to take them back…’ (Al-Baqarah 2:228)
Also, the hadith in which the Prophet (peace and blessings be upon him) said “Order him to take her back” shows that the valid return to one’s revocably-divorced wife can be through an action, and that it is not restricted to a verbal statement, and whoever claims that it must be through a verbal statement should provide legal evidence.
Almighty Allah knows best.
Editor’s note: This fatwa is from Ask the Scholar’s archive and was originally published at an earlier date.