Will you give information about Lian: the method of ending a marriage due to adultery?
Submitted by on Mon, 24/05/2010 - 11:11
Dear Brother / Sister,
Ending a marriage due to adultery:
Lian and mulaana are synonymous; they are derived from the root la'n and they are nouns; they mean being driven away from the mercy of Allah; it is an Islamic legal term meaning the mutual act of swearing is carried out before a judge when a husband accuses his wife of adultery and cannot prove it with four witnesses. According to the common definition of Hanafis and Hanbalis, if the husband lies, the curse of Allah is attracted on him with the strengthened witnessing. If the wife lies, she attracts the wrath of Allah on her. That mutual swearing replaces qazf for the husband and the punishment of adultery for the wife. Lian is a divorce method of ending the marriage.
The reason for lian is as follows: If a man accuses a woman who is not a relative of his, he has to prove it with four witnesses. Otherwise, he is flogged with eighty stripes. (an-Nur, 24/4). The punishment of qazf was applied for a man who accused his wife of adultery and could not prove it with four witnesses beforehand. As a matter of fact, when Hilal b. Umayya (may Allah be pleased with him) accused his wife of adultery, the Messenger of Allah (pbuh) asked him to prove it with four witnesses and said that the punishment of slandering (qazf) would be applied if he could not prove it. He repeated it several times. Hilal b. Umayya said, "O Messenger of Allah! One of us sees his wife committing adultery with a man; you ask us for evidence. I swear by Allah, who sent you as a true prophet, that I am telling the truth. I believe that Allah will send down a verse to you that will save my back from these stripes." (Bukhari, Shahadat, 21, Tafsir Surah 24/3, Talaq, 28; Muslim, Lian, II; Abu Dawud, Talaq, 27; Ahmad b. Hanbal, Musnad, I, 273, III, 142). Thereupon, the following ‘verse of mulaana’ was sent down.
"And for those who launch a charge against their spouses, and have (in support) no evidence but their own― their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly telling the truth; And the fifth (oath) (should be) that they solemnly invoke the curse of Allah on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allah, that (her husband) is telling a lie; And the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth. " (an-Nur, 24/6-9).
The first application of the verse was used for the family of Hilal. Hazrat Prophet summoned Bilal. Bilal swore by Allah four times that he was telling the truth; he wanted the curse of Allah to be on him if he lied. Then his wife was brought there. She swore the same way. She wanted the curse of Allah to become on her if her husband told the truth. Then, the Messenger of Allah divorced them. (ash-Shawkani, Naylul-Awtar, 1250 H, y.y., VI, 268). It is also reported that the verse of lian was sent down about Uwaymir al-Ajlani and his wife, whom he accused of adultery. The view that the decree of the verse was applied for the family of Hilal first and for the family of Uwaymir later. (ash-Shawkani, ibid., VI, 268).
There are two reasons for lian: The first one is when a man accuses his wife of adultery which necessitates the application of the punishment of adultery when the accusation is made for a woman who is not a relative of his. The second one is when the father rejects (does not accept) that he is the father of the child that has not been born yet or that was born.
According to Abu Hanifa, the rejection of the child must take place just after the birth or in the first week following the birth at the latest. When the husband does not accept the child that is born, he is regarded to have accused his wife of adultery, and mulaana is applied. After that period passes, the child is regarded to have been accepted due to silence. According to Abu Yusuf and Imam Muhammad, it is possible to reject the child until the period of puerperum is over. (al-Kasani, Badayiu's-Sanayi, Beirut 1328/1910, III, ?39; Ibnu'l-Humam, Fathu'l-Qadir, Cairo, n.d., III, 260 ff.; al-Maydani, al-Lubab, III, 79). The period of puerperum is forty days beginning from the day of giving birth.
The essentials of lian are showing Allah as a witness together with swearing and attracting the curse of Allah by both spouses.
There are three conditions of lian.
1. The state of marriage between the spouses should be continuing. It does not matter whether they have had a sexual intercourse before or not. When the accusation is directed against the people who are not married, or if a man accuses a woman who is not a relative of his, mulaana cannot be applied. If a man marries a woman who is not a relative of his after accusing her of adultery, the punishment of qazf is applied to him; mulaana is not applied.
2. The marriage contract must be valid. For instance, if someone has married without any witnesses, his marriage is not valid; and mulaana is not applied.
3. The husband must be liable to be a witness. That situation demands the spouses to be sane, to have reached the age of puberty, to be Muslims and not to have been given the punishment of qazf before. If the spouses are blind or fasiq, it does not make any difference. (al-Kasani, ibid, III, 24; Ibnu'l-Humam, ibid, III, 259; al-Maydani, ibid, III, 75,78; Ibn Abidin, Raddul-Mukhtar, Egypt, n.d., II, 805 ff.).
There are some conditions for the rejection of the child:
1. The judge must give the decision of divorcing the spouses because rejecting the child before the decision of divorce is not necessary.
2. The child must be rejected within the first week after the birth at the latest according to Abu Hanifa and during the period of puerperum according to Abu Yusuf and Imam Muhammad. According to the majority of the scholars, the rejection of the child should take place as soon as possible.
3. No deed that means the acceptance of the child must be done.
4. The child must be alive during the divorce. (al-Kasani, ibid, III, 246-248; al-Maydani, ibid; III, 79; Ibn Abidin, ibid, II, 811).
If the husband refrains from swearing during mulaana or quits lian, he is imprisoned until he swears or he confesses that he has lied according to Hanafis. If it becomes evident that the imprisonment will not be of any use, the punishment of qazf is applied. If the woman refrains from mulaana, she is imprisoned until she agrees to do mulaana and approves her husband. If she approves her husband, she is freed. As it is stated in this verse: " it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allah, " (an-Nur, 24/8), according to the majority of the scholars except Hanafis, those who refrain from lian are applied the punishment of adultery because lian had replaced the punishment of adultery.
If the husband breaks his swearing after the mulaana in the presence of the judge, he is given the punishment of qazf. (al-Kasani, ibid, III, 238; al-Maydani, ibid, II, 808; Ibn Abidin ibid, II, 808).
The judgments about lian:
As a result of mulaana in the presence of the judge due to the adultery of the spouse, the following outcomes emerge:
1. The husband is saved from the punishment of qazf or tazir. The woman is saved from the punishment of adultery.
2. Sexual intercourse between the spouses becomes haram after mulaana. Hazrat Prophet said the following in a hadith: "Those who do mulaana cannot come together again forever." (ash-Shawkani, Naylul-Awtar, VI, 271).
3. The spouses become divorced with the decision of the judge as a result of mulaana. The evidence to it is the fact that Hazrat Prophet divorced Hilal b. Umayya and his wife. (ash-Shawkani, ibid, VI, 274). Here, the decision of divorce by the judge is like talaq bain (irrevocable divorce) according to Abu Yusuf and Imam Muhammad because, as a principle, the divorce by the judge is regarded as talaq bain. If the husband accepts later that he has lied or loses the liability to be a witness, his wife becomes halal for him; however, according to the most of the scholars, the divorce as a result of mulaana is like the cancellation of the marriage as it is the case in the divorce due to being relatives based on breastfeeding; it necessitates eternal prohibition and it is impossible for those two spouses to marry again.
4. The child that is born or will be born as a result of fornication is regarded to have been rejected by the father. There will be no inheritance or alimony between that husband and that child anymore. (See al-Kasani, ibid, III, 244-248; Ibnu'l-Humam, ibid, III, 253 ff.; al-Maydani, ibid, III, 77-78; Ibn Rushd, Bidayatu' l-Mujtahid, Egypt, n.d., II, 120 ff.; Ibn Qudama, al-Mughni, Cairo, n.d., VII, 410-416; Abdurrahman as-Sabuni, Mada Hurriyati'z-Zawjayn fi't-Talaq, Beirut 1968, II, 896 ff.).
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