Question: Is the prohibition of Muslim women marrying Kuffar qat'i (definitive) or open to difference of opinion? According to Qardawi Umar b. Khattab gave the option to a woman whose husband had become murtadd to either stay with him or to separate. He reference he gives is the ahkaam ahl zimmah by Ibn Qayyim al-Jawziyyah. What would you say about this?
Answer: The marriage of a Muslim woman to a Kafir is definitely baatil (void). Allah (swt) says:
فإن علمتموهن مؤمنات فلا ترجعوهن إلى الكفار لا هن حل لهم ولا هم يحلون لهن
“Then if you ascertain that they are true believers, send them not back to the disbelievers, they are not lawful (wives) for the disbelievers nor are the disbelievers lawful (husbands) for them.” [al-Mumtahinah:10] T
This is a definite text in terms of its authenticity and meaning. Its not open except to one meaning which is that a Muslim woman is not allowed for a Kafir and Kuffar are not allowed for Muslim women. The husband’s disbelief does not allow the nikaah (marriage) to be contracted between him and a Muslim woman. Allah (swt) mentioned the word Kuffar to include all Kafir whether Jew, Christian, Zoroastrian or idolater i.e. any type of kufr which is included by the hukm.
However, the issue over which there was disagreement between the Fuqaha is the issue of the apostasy of the husband when he remains and is not killed after repenting (i.e. if he was outside the Islamic state and his wife was in the Islamic state or if the situation is like today where the ahkam are not implemented). After that the husband returns to Islam during her ‘iddah period i.e. before the end of the wife’s waiting period (‘iddah). The Fuqaha differed over this situation: some said if he returns to Islam before the end of his wife’s waiting period then she is his wife and she will return to him. But if he returns after the end of the ‘iddah then he will require a new contract if he wishes to marry his wife but she will have a choice whether to accept or reject. Others said that if the husband returns to Islam whether during or after the iddah, he will require a new contract and the wife has the option either to accept the marriage contract or to refuse.
Perhaps the incident you mentioned where ‘Umar (ra) gave the choice to a woman whose husband had committed apostasy (if the narration is authentic) is in this vein i.e. after the husband has returned to Islam.