Remarriage of the spouses after halala when the witnesses of the halala deny it

Question

Zayd, together with his wife and children, had gone abroad to earn a living. There, having quarrelled with his wife, he gave her talaq. After the ‘idda, there in that foreign place, for halala two witnesses and one person to conduct the nikah were secretly called, and her nikah was performed with Umar. Umar, having had relations with her, gave her talaq. Now Zayd, together with his children and this woman, has come back to his homeland. Now Zayd and this woman say to Bakr: “Perform our nikah secretly.

Answer

One should consider: if Zayd and his divorced wife were after nothing but fornication, what need would there have been to have the nikah performed again? For the talaq had been given abroad, and they could have lived together even without a nikah. Therefore it is better that Zayd and the wife both themselves make the offer and acceptance (ijab and qabul)

Source: Fatawa Mahmudiyya

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