Praise be to Allaah.
Firstly:
Undoubtedly what the husband did to this small child – if it
is proven – is a serous crime, for which he deserves to be stoned to death.
Perhaps such incidents indicate how far such scum are from the laws of
Allaah. Hence the Muslim should be careful with regard to marriage, and he
should be caution and be careful about letting female relatives of the wife
be alone with people who are weak in faith, even if they are small.
Secondly:
It is well known that it is not permissible for a man to
married at the same time to two sisters, and it is nor permissible for him
to marry his wife’s mother – after doing the marriage contract with her – or
her daughter – after consummating the marriage with the mother. So if the
husband commits zina with the wife’s sister, mother or daughter, does his
wife become haraam for him and must he divorce her? And if he was not
married to her, is it permissible for him to marry her? These are issues
concerning which the scholars differed, and there are three opinions:
1.
The view of the majority is that his wife does not become
haraam for him. This is the view of Ibn ‘Abbaas (may Allaah be pleased with
him), ‘Urwah, Sa’eed ibn al-Musayyab and al-Zuhri, and it is the view of the
majority of scholars. Some of them narrated that Ibn ‘Abbaas said that his
wife becomes haraam for him, but this is da’eef (weak); the correct view is
that which we have mentioned above.
Their evidence is that marriage in sharee’ah applies only to
the woman with whom the marriage contract is done, not just to intercourse.
Moreover, there is no dowry, ‘iddah or inheritance in the case of zina. Ibn
‘Abd al-Barr said: The scholars of different regions who issue fatwas are
unanimously agreed that it is not haraam for the zaani to marry the woman
with whom he committed zina, so it is more permissible for him to marry her
mother or daughter.
2.
Ibraaheem al-Nakha’i, al-Sha’bi, Abu Haneefah and his
companions, Ahmad and Ishaaq said, and it was also narrated from Maalik,
that if he commits zina with a woman, her mother and daughter become haraam
for him.
3.
The view of the Hanafis – which is also the view of
al-Shaafa’i – is that touching with desire for a permissible reason comes
under the same ruling as intercourse, because it is intimacy. But if it is
done for a haraam reason, it has no effect, like zina. They said: His wife
become haraam for him if he merely touches her mother or looks at her
private part.
Ibraaheem al-Nakha’i said: They used to say: If a man looks
at a woman and at that which is not permissible for him, or touches her with
desire, then they both become haraam to him.
Al-Musannaf (3/303).
The most correct view is the view of the majority, that his
doing haraam actions with his wife’s mother, daughter or sister does not
make his wife haraam for him, whether he is married or after the marriage
has ended. Hence it is known that if a husband molests his wife’s daughter
and even it is proven that he raped her, this reprehensible act does not
mean that his wife becomes haraam for him.
Al-Bukhaari (may Allaah have mercy on him) narrated (5/1963)
that Ibn ‘Abbaas (may Allaah be pleased with him) said: If a man commits
zina with his wife’s sister, his wife does not become haraam for him.
Al-Bayhaqi narrated – in a report classed as saheeh by
al-Haafiz Ibn Hajar (7/168) – that Ibn ‘Abbaas said concerning a man who
committed zina with his wife’s mother: He has transgressed two sacred
limits, but the wife does not become haraam for him.
Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said:
Question: If a man commits zina with a woman, do his
ascendants and descendents become haraam for her, and do her ascendants and
descendents become haraam for him?
Answer: They do not become haraam, because that is not
included in the verse (interpretation of the meaning): “Forbidden to you
(for marriage) are: … your wives’ mothers, your stepdaughters 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” [al-Nisa’ 4:23]. The zaaniyah (woman who commits
zina) is not included in this, so if a person commits zina with a woman, we
do not say that this woman is one of his wives, and we do not say that this
woman with whom he committed zina is one of “your wives’ mothers” and thus
it remains permissible (to marry her), because she is included in the verse
(interpretation of the meaning): “All others are
lawful…” [al-Nisa’ 4:24].
Al-Sharh al-Mumti’ (5/179).
Thirdly:
You can ask for the marriage to be annulled by the sharee’ah
judge (qaadi) for two legitimate reasons, the first of which is his
evildoing and immorality by committing this revolting crime – if it is
proven; the second is his being away from the home. Both of these reasons
make it permissible for you to seek an annulment of the marriage from the
sharee’ah judge and to demand your rights in full. This is called al-talaaq
li’l-darar (divorce on the grounds of harm). Imam Maalik and Imam Ahmad (may
Allaah have mercy on them) said concerning it: The harm which justifies
seeking a separation of the couple includes everything that harms the wife
or involves mistreatment of her, physically, mentally or psychologically.
That varies from one woman to another, and according to circumstances and
customs. Examples of harm for which a wife may ask for divorce include
hitting her for no legitimate reason, forcing her to do something haraam or
not to do something obligatory, and evil deeds, immorality and misconduct on
his part.
And Allaah knows best.
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