What is the ruling if the first husband returns after consummation of the second marriage?
General Chapter
Al-Mughni
Book of Waiting Periods ('Iddah)
Primary text
If the first husband returns after the second husband has consummated the marriage, the first husband has the choice: either to take her back, in which case she becomes his wife under the first contract, or to take her dower paid by the second husband, in which case she remains the wife of the second husband. This ruling is based on the consensus of the Companions (Sahaba), as narrated by Ma'mar from Al-Zuhri from Sa'id ibn Al-Musayyib, that 'Umar and 'Uthman ruled this way. 'Ali also held this view, and no dissenting opinion was known in their era, establishing Ijma (consensus). If the first husband chooses to keep her, she remains his wife by the first contract.
Supporting text
Regarding the dissolution of the second marriage: The transmitted view from Ahmad states the second husband does not need to issue a divorce ('talaq') because his marriage was intrinsically void. Conversely, Al-Qadi argues that قياس (analogy) suggests the second husband must issue a divorce to nullify the apparent contract, requiring the first husband to withdraw until she completes her waiting period ('iddah) from the second. Furthermore, if the first husband chooses the dower and rejects her, it is necessary to institute a new contract for her with the second husband, as the second marriage was proven void by the arrival of the first husband, and a woman does not become the wife of another merely because her husband abandons her.