What is the ruling when a husband is absent for years, his wife observes 'iddah upon hearing of his presumed death, remarries a second man who consummates the marriage and fathers children, and then the first husband returns?
General Chapter
Al-Mughni
Book of Mutual Imprecation (Li'an)
Primary text
If a man is absent from his wife for years and she observes 'iddah upon receiving news of his death, then enters a seemingly valid marriage with a second man who consummates the marriage and fathers children, upon the return of the first husband, the second marriage is invalidated, and she must return to the first husband. She must observe the 'iddah related to the second marriage, and she is due the *mahr al-mithl* (dower equivalent to women of similar standing) from the second husband. The children born belong to the first husband because they were conceived on his valid marriage bed. This ruling is attributed to Ali, may Allah be pleased with him, and is the position of Thawri, the people of Iraq, Ibn Abi Layla, Malik, the people of Hijaz, Shafi'i, Ishaq, Abu Yusuf, and others among the scholars.
Supporting text
Abu Hanifa held a dissenting view, stating that the children belong to the first husband because he is the possessor of the marriage bed (*sahib al-firash*), as his marriage is sound and established, while the second marriage is not established. Therefore, it is akin to a stranger (*ajnabi*). The evidence supporting the main view is that the second husband alone had intercourse with her under a marriage contract where lineage would attach in similar cases, therefore the child belongs to him and not the first, similar to the child of a female slave from her husband attaching to them and not her master. This differs from a stranger (*ajnabi*) because the stranger has no valid marriage contract.