Whose words are decisive in proving khalwah (staying in privacy)?
13-1-2014 | IslamWeb
Question:
I have divorced my wife once before consummating the marriage and after being alone together, and it was stipulated in the divorce documents that she should spend her ‘Iddah (post-marriage waiting period), and according to our case I am entitled to reunite the matrimonial bond if I wish during the ‘Iddah. I actually revoked the divorce before the judge who issued it and in the presence of her father, whom I have asked to approve reuniting the marital bond with my wife and to document that in the Court of Social Security and Marriage, but he refused, claiming that it is impermissible unless we make a new contract and new marriage conditions. Then, I filed an obedience (Taa‘ah) complaint in the Supreme Court against my wife, demanding compelling her to the House of Obedience, but the judge does not approve the divorce, believing that he is bound only by the wife’s admission of Khalwah or else I may seek witnesses who back my claim. In fact, we have been alone in seclusion more than once and we did what a husband and wife would do except having sexual intercourse. My questions are:
1 - If the judge issued a verdict that our Khalwah is not binding and denied my obedience (Taa‘ah) complaint against my wife, what is the Islamic ruling if she married another man depending on the High Court judge’s verdict?
2 – Is it true that she is the one who has to admit the Khalwah so that it would be proven, given that it is her family who is urging her to deny it and I think that she holds back and denies the Khalwah under direct pressure from her family?
May Allaah The Exalted Grant you success.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
The majority of Muslim scholars agreed to the fact that true Khalwah (privacy) between a man and a woman with whom he has concluded a marriage contract has its due implications such as entitling the wife to receive the entire dowry and to observe the due ‘Iddah and other effects. The word of the wife is what is considered in proving such Khalwah, and if she denied it while the husband admitted that Khalwah took place, then it is her say. The Hanbali scholar Al-Ruhaybaani 
elaborates: “If the husband said: ‘Khalwah has occurred before divorce; and accordingly I am entitled to revoke the divorce before the ‘Iddah ends,’ then his words do not count if the wife denied it; for it is her say. She is not entitled to receive financial maintenance or accommodation. As for the dowry, if she has not yet received it, she has the right to only half of it; because, even if it was agreed upon that she received it all, she can have only half of it if she denied the husband’s claim.”
This is the ruling on whose words would be taken into consideration in proving Khalwah, if the husband claimed it and the wife denied it, in general. As for your particular case that was brought to the court, you have no other option but to prove the Khalwah, or accept the judge’s verdict and the effective divorce that would be issued by the judge according to the available information. However, such divorce does not render what is impermissible allowable if it conflicts with what is implied in the Islamic ruling i.e. it is impermissible for that wife to marry another man while she is still married to her first husband.
Allaah Knows best.