The second section of the second case is: The absence of the husband is based on his safety and being alive such as a trade journey or seeking knowledge or for tourism or for Salah. In these cases, scholars have three views which are:

The first view is: Marital relationship is still effective as long as the death of the husband is not ascertained. It was reported from Ali that he said: If the wife loses her husband, she will not marry until he returns or dies. (2)

This is the view of Ibn Shubrumah, Ibn Abu Layla, Ath-Thawry, Abu Hanifah, Al Shafi`y, and one of the two narrations of Imam Ahmad.

They said: The origin of this absence is safety, so he should not be judged by death before the elapse of four years or before he reaches ninety years.

The second view is: Imam Malik, Al Shafi`y, `Umar and his son, `Uthman, Ibn `Abbas and Ibn Mas`ud (may Allah be pleased with them), (3) a group of the Followers such as An-Nakh`y, `Ata', Az-Zuhry, Makhul, and Ash-Sha`by held the view that she has to wait for four years before she submits her case to the judge then she waits for four months and ten days then she can marry another one. If her first husband returns, he shall be given the choice either to take his wife back in marriage or take the dower.

They said: If annulment is permissible for the inability to have sexual intercourse or for insolvency, it is permissible here because all her rights are lost.

They held the Hadith of `Umar (may Allah be pleased with him) about a lost person (4) along with the approval of the Companions of the Prophet as a proof without objection.

The third view is: The Hanafi and one of the two narrations of Imam Ahmad that they fixed a period of time during which the judge makes sure that a husband dies then she waits for four months and ten days then she has the right to marry again. However, they differed in estimating that period: Some said if he reaches ninety years while some said seventy, others said: When his mates die, and some said: According to the personal opinion of the judge.

Scholars said: Marriage is ascertained and absence does not entail separation, and death is probable, so marriage is still certain and cannot be removed by doubt. As for issuing a verdict of his death after this period because he cannot live after that long period along with the lost of his news, so he is certainly dead.

The correct view and Allah knows best is the second view to remove the harm from the wife. The story which happened during the time of `Umar is the same of our story because the news of the husband are not known and his safety is doubted.

As for the period of ascertainment, it cannot be decided by personal opinion but we must have a proof from the Qur'an or the Sunnah because its estimation may lead to the difference of her waiting period according to the lifetime of the husband which is incomparable.

The summary:

If a man was lost and his news were not known whether his absence due to death or safety, the correct view is that his wife should wait for four years then submit her issue to the judge then wait another four months and ten days then she has the right to marry again. However, if she marries then her first husband returns, he has the choice to take her back in marriage or take his dower because of the story of the man whom was hijacked by devils during the time of `Umar (may Allah be pleased with him) who was absent and `Umar gave a verdict that he is dead and his wife has the right to marry again and all the Companions agreed to this without objection from any of them.

 

___________________________

 

(1) Al Bahr Ar-Ra'iq 5/176, Al `Inayah Sharh Al Hidayah 8/230, Al Istidhkar 6/130, Al Mudawwanah 2/30, I`anat At-Talibin 4/83, Al Umm, 5/240, Al Majmu` Sharh Al Muhadhdhab 18/268, Rawdat At-Talibin 8/400, Al Iqna` on the Fiqh of Imam Ahmad 4/113, Al Mughny 9/131, Hashiyat Ar-Rawd Al Murbi` 7/66, I`lam Al Muwaqi`in 2/55,

(2) Ibn Hajar said in Fathul-Bary 9/431 after he had mentioned the view of Ali (may Allah be pleased with him): Reported by Abu `Ubayd in the book of marriage. `Abdur-Razzaq said: It was reported to me from Ibn Mas`ud that he agreed to Ali about the wife of a lost person that she has to wait for him forever. Abu `Ubayd also reported with a good chain of transmission on the authority of Ali: If she marries, she will be the wife of the first whether the second commenced marriage with her or not.

(3) Ibn Hajar said in Fathul-Bary 9/431: Sa`id ibn Mansur reported with an authentic chain of narration from Ibn `Umar and ibn `Abbas that the wife of a lost person should wait for four years. It was authentically reported from `Uthman and ibn Mas`ud most people do not separate between the conditions of losting someone.

(4) Ibn Hajar said in Fathul-Bary 9/431: Reported by Ibn `Abdur-Razzaq and Sa`id ibn Mansur and Ibn Abu Shaybah with authentic chain of transmission from `Umar.

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