The second type is: invalid and that is of two types:
The first type is: The condition is invalid but the marriage is correct, such as stipulating to deprive a woman of her Mahr (mandatory gift to a bride from her groom), stipulating that he will not spend on her, stipulating that she spends on him, giving her more rights than her fellow wife or less, stipulating that he will not have sexual intercourse with her except in daytime, or having sexual intercourse with her one night a week, ...etc. These conditions are invalid even if the wife agrees to them. She has full right to cancel them and ask for her full rights, and marriage shall be correct because these conditions are contrary to the purport of the contract, in addition to overlooking some rights that are entailed by the contract even before concluding it. (1) (2)
The second type is: Marriage shall be invalid, and that has three cases as follows:
First case: Shighar marriage in which a guardian gives the hand of his daughter in marriage to another man provided that the other shall give him his daughter in marriage without Mahr. This kind of marriage is null and void (3) because of the Hadith of Ibn `Umar (may Allah be pleased with him) who said: "The Messenger of Allah (peace be upon him) Shighar marriage which means that somebody marries his daughter to somebody else, and the latter marries his daughter to the former without paying Mahr." (4)
Second case: Al Muhallal marriage in which a man marries a woman in order to make her lawful for her husband who divorced her three times. This kind of marriage is forbidden according to the most correct view of scholars because of the Prophet's saying: "Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful." (5) Likewise, if a person had the intention to make her lawful for her first husband without stipulating that. Nafi` reported on the authority of Ibn `Umar (may Allah be pleased with him) that a man said to him: "I married her to make her lawful for her husband but he neither commanded me nor knew about this, so what is the ruling? He said: No, You should marry her out of desire; if you love her, keep her in marriage but if you hate her, divorce her." (6)
Third case: Temporary marriage in which a man marries a woman for a fixed period of time, or stipulates that he shall divorce her within a fixed period, or to have the intention to divorce her in a fixed time without stipulating that to the woman or her guardian; these are three cases.
As for the first case which is a man marries a woman to a fixed period of time this is the temporary marriage which the Prophet (peace be upon him) gave permission for because of singularity during conquests and travel then forbade it. Ibn Mas`ud (may Allah be pleased with him) He said: "We used to participate in Jihad with the Prophet (peace be upon him) and we had no women (wives) with us. So we said (to the Prophet peace be upon him). "Shall we castrate ourselves?" However, the Prophet (peace be upon him) forbade us to do that and thenceforth he allowed us to marry a woman (temporarily) for a fixed period by giving her even a garment." (7)
Sabrah Al Juhany (may Allah be pleased with him) narrated that he was with the Messenger of Allah (peace be upon him) He said: "O people, I had permitted you to contract temporary marriage with women, but Allah has forbidden it (now) until the Day of Resurrection. So he who has any (woman with this type of marriage contract) he should let her off, and do not take back anything you have given to then (as dower)." (8)
The Hadiths reported in the prohibition of temporary marriage are numerous (9)
The second case is that a man marries a woman and stipulates to divorce her in a fixed period of time, such as saying: "until I go back home," or "until I finish my trade," or "after a year" ...etc. This kind of marriage is null and void because it looks like the temporary marriage, and because it contradicts the purport of marriage which is the permanent relationship, tranquility, comfort, and having children.
The difference between this kind of marriage and temporary marriage is: it lacks the word of divorce because the temporary marriage ends as soon as the period is over. (10)
The third case is: A person marries a woman while having the intention to divorce her. This type of marriage is controversial among scholars as follows:
1- The first view is: Marriage is valid if it has fulfilled its pillars and conditions, and the husband's intention does not affect because he may like the woman or she may beget a child which will keep the relation between them going; this is the view of the majority of scholars. (11)
2- The second view is: Marriage is not valid because it is a temporary marriage even if a person does not stipulate. Based on the Al Muhallal marriage in which a person has the intention but does not stipulate it, scholars agreed to nullify that marriage which is like this type. That was the view of Al Awza`y and a group of scholars.
3- The third view is: marriage in invalid but a person commits a sin, but it is better to prevent this marriage because it contains deception to the woman and her guardian because if they had known his intention before marriage, they would not have accepted that marriage. A believer loves for his Muslims brother what he loves for himself. It also opens a great door of evil due to lenience in Shari`ah rulings, and travelling for marriage for several days with the intention of divorce even without stipulation is considered playing with the Shari`ah rulings because the intention is enjoyment and not marriage.(12)
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(1) It was reported from Ahmad some narrations to sustain the nullification of the marriage contract. It was reported from him in An-Nahariyyat Wa Al Layliyat "This kind of marriage is not recognized by Muslims." These conditions are known in the marriage that is known today as Al Misyar marriage. Therefore, marriage will be valid but the condition is null and she has to demand for her rights of alimony and sexual intercourse. See Manar As-Sabil 2/160 Al Kafy Fi Fiqh Imam Ibn Hanbal 3/55.
(2) See: Manar As-Sabil 2/160, books and letters of Ibn Taymiyah 32/158, Subul As-Salam 3/264, Al Kafy Fi Fiqh Imam Ibn Hanbal 3/55, Al Mughny 7/71, and Al Qawanin Al Fiqhiyyah of Ibn Jazzy 1/145.
(3) See Subul As-Salam 3/257, Rawdat At-Talibin 7/40, Manar As-Sabil 2/172, Dalil At-Talib 1/231.
(4) [Reported by Al Bukhari and Muslim].
(5) [Reported by Abu Dawud and At-Tirmidhy who graded it as good and authentic Hadith, Ibn Majah].
(6) See: Subul As-Salam 3/269, Manar As-Sabil 2/158, Hashiyat Ar-Rawd Al Murbi` 6/320.
(7) [Reported by and Al Bukhari and Muslim].
(8) [Reported by Muslim].
(9) See: Subul As-Salam 3/266, Hashiyat Ar-Rawd Al Murbi` 6/324, Manar As-Sabil 2/159, books and letters of Ibn Taymiyah 32/158, Al Mughny 7/72, Hawashy Ash-Shirwany 7/224, and Bada'i` As-Sana'i` 2/272.
(10) See the previous references.
(11) See: Manar As-Sabil 2/159, the fatwas of the Sacred country scholars p. 428-429.
(12) This is the view of Imam Ahmad and sheikh Ibn `Uthaymain (may Allah bestow mercy on him), see the fatwas of the Sacred country scholars, Hashiyat Ar-Rawd Al Murbi` 6/324.
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