Question: As salamu alaikum. If a wife has a husband who was incarcerated, returns home, and then marries another wife. And this new wife does not want to take an AIDS test, even though the current wife and the husband have done so. Is it permissible her to seek annulment because the new wife does not want to take the AIDS test? What if there is a good change the second wife has it? What is the ruling?
Country: United States
Wa alaykum salam wa rahmatuLlahi wa barakatuHu,
HIV/AIDS in Arabic is الأيدز or more scientifically فقد المناعة المكتسبة. The HIV virus was discovered in the late 1980s; consequently, classical fiqh literature does not discuss it. Unprecedented issues have to be approached with investigation, research, and employing discretion and legal judgment [i.e. bahth].
Scholars discussed the issue of annulling a marriage due to defects found in one’s spouse. According to Imam Shafi’i in Kitab al-Umm v. 6, p. 216-17, there are certain specified defects for annulment, to the exclusion of others.
In another instance, Imam Shafi’i rationalized the underlying reason for which leprosy is a defect significant enough to annul a marriage as, “...medical experts maintain that it is an illness that causes significant harm. It hinders intercourse, seldom one finds having sex with one infected desirable. Children are often affected by it….” (See: Kitab al-Umm and also Ma’rifat al-Sunan wa al-Athar v. 11, p. 455)
Others authorities in the School, such as Qadi Husayn, allowed for the consideration of additional defects. In fact, Imam Ghazzali related from Qadi Husayn, “all defects that take away craving enjoyment [with that person]…” (Wasit 5/160-61) The discussion in Wasit continues, “…that is considered for anything that causes disinclination, like what leprosy causes…”
HIV is detrimental to one’s health like leprosy. And what Imam Shafi’i stated about leprosy is also true of HIV: HIV is a major detriment to sexual health and reproduction, sex with an HIV positive partner is something most avoids, and HIV is often transferred to one’s children.
And Allah knows best.
Answered by Yaqub Abdurrahman