Question:
A man and a woman (who are were uncle and niece) were previously Hindus (a religion in India based upon shirk) and they had children while they were together. And now that they have entered Al Islam, they would like to know what is upon them.
Answer:
Allah has said in – Surah Nisa Ayah 23
سورة 4, الآية 23:
حُرِّمَتْ عَلَيْكُمْ أُمَّهَاتُكُمْ وَبَنَاتُكُمْ وَأَخَوَاتُكُمْ وَعَمَّاتُكُمْ وَخَالَاتُكُمْ وَبَنَاتُ الْأَخِ وَبَنَاتُ الْأُخْتِ وَأُمَّهَاتُكُمُ اللَّاتِي أَرْضَعْنَكُمْ وَأَخَوَاتُكُم مِّنَ الرَّضَاعَةِ وَأُمَّهَاتُ نِسَائِكُمْ وَرَبَائِبُكُمُ اللَّاتِي فِي حُجُورِكُم مِّن نِّسَائِكُمُ اللَّاتِي دَخَلْتُم بِهِنَّ فَإِن لَّمْ تَكُونُوا دَخَلْتُم بِهِنَّ فَلَا جُنَاحَ عَلَيْكُمْ وَحَلَائِلُ أَبْنَائِكُمُ الَّذِينَ مِنْ أَصْلَابِكُمْ وَأَن تَجْمَعُوا بَيْنَ الْأُخْتَيْنِ إِلَّا مَا قَدْ سَلَفَ إِنَّ اللَّهَ كَانَ غَفُورًا رَّحِيمًا
Forbidden to you (for marriage) are: your mothers, your daughters, your sisters, your father’s sisters, your mother’s sisters, your brother’s daughters, your sister’s daughters, your foster mother who gave you suck, your foster milk suckling sisters, your wives’ mothers, your step daughters under your guardianship, born of your wives to whom you have gone in – but there is no sin on you if you have not gone in them (to marry their daughters), – the wives of your sons who (spring) from your own loins, and two sisters in wedlock at the same time, except for what has already passed; verily, Allah is Oft-Forgiving, Most Merciful.
And the point being the third category of women that Allah azza wa jall has made forbidden for us, is our sisters. And there’s no difference in this between the sisters who are our maternal sisters and paternal sisters, as all of them are forbidden for us for marriage.
After realizing the impermissibility of marrying our sisters in Islam, is what one must do who’s in this scenario. The Ulama have clarified that if a person, he, marries a woman who is not permissible for him to marry – the likes of the women who are mentioned in this ayah – then the people of knowledge have clarified that a separation must occur between them. Meaning that the man, he must be separated from this woman. And she’s no longer his wife. So if the man is married to a woman that is not permissible for him to marry in Islam, then it is waajib, it is an obligation that the are separated fawran – immediately!
It is also important to note, that this separation that occurs between the man and the woman is not referred to as a divorce, which is referred in Arabic as talaq. It is not referred to as a divorce, but it is referred to as a tafreeq, as a separation which occurs between them. This is due to the fact that there is no legislated marriage that occurred between them. Therefore the separation which occurs between them is not referred to as a divorce, a talaq. Rather it is referred to as a mujarad tafreeq, merely a separation which must occur between them immediately.
Therefore as we mentioned, a separation must occur between the man and this woman. And she’s no longer his wife nor is he her husband. However, that which is there of relationship between them if brotherhood, then this something which is still established. There remains then the matter which relates to the children. What should be done in regards to the children? Are these children considered to be their children, or not?
In response to this, the noble Shaykh Muhammad Ibn Saalih Al Uthaymin rahimahullaah ta ‘ala in some of his Islamic Verdicts which are found in Liqall Babul Maftooh. He rahimahullaah ta ‘ala mentioned that if a marriage contract occurs between a man and a woman in the state of disbelief, the man is a disbeliever and the woman is a disbeliever. And while this contract occurred, this contract was correct and rendered and deemed to be correct amongst those people of disbelief. Whether they are Hindus or whether they are Buddhists, or whether they are Christians or whether they’re Jews, this marriage contract which occurred between the man and the woman was deemed to be correct amongst those people, even if that marriage contract is invalid in Islam, then those children are ascribed to their mother and father. This is a summary of what he rahimahullaah ta ‘ala mentioned in relation to what we were speaking about at this particular time.
And the Shaykh clarified this further by mentioning for example a man who was a majoosi – a fire worshiper- and he married his sister while he was in the state of disbelief. So he rahimahullaah ta’ala said, so if they both accept Islam then it is an obligation that a separation takes place. Meaning that that woman is not permissible for that man in marriage.
So this group of people you’ve mentioned, meaning from the question, we say if you believe that that which occurred from you in having intercourse with these women was based upon a marriage and a contract, then this is not fornication and the children are ascribed to you to the end of his rahimahullaah statement.
Therefore in summary, we benefit from this. This woman is no longer the wife of this man, and this man is no longer the husband of this woman. And a separation must take place between them, meaning he can no longer have intercourse with her and so on and so forth from the affairs between the husband and the wife. These children are to be ascribed to the mother and father based on what was mentioned by the Shaykh previously. We ask Allah tabaaraka wa ta ‘ala to grant us beneficial knowledge and aid us in implementing it. Wal Hamdulillah Rabbil Aalameen!!!
Answered by : Noble brother Abu Atiyyah Mahmood As Somalee
Transcribed by : Abu Muwahhid Asadullah At Tarinidadi
Transcriber Note- the brother Abu Atiyyah was mistaken in the question. Instead of it being a brother and a sister who were married as Hindus and came to Al Islaam, it was an uncle and a niece. Nevertheless, the ruling still applies to them both.