I know that Muslim women are not allowed in Islam to marry non-Muslim men; there is a sister on a converts' list who recently became Muslim and who was asking what to do regarding her non-Muslim husband who accepted her conversion without any problems and who also lets her educate the children the Islamic way. However, when she asked for an advice, most of us told her that the husband has to take shahada (become Muslim) or she should not remain married to him otherwise. Unfortunately, some other people don't believe so and advised her the opposite way; that she just should remain with the husband and so on,.... I would like you to send me concrete cases at the time of the Prophet where Muslim women (sahabiyyat) would leave their non-Muslim husbands if they decided not to convert. I think those cases would be the only proof to convince the people of that list that Muslim women are not allowed to marry or remain married to non-Muslim men even though they are not against the woman's conversion.
Thank you for writing to us. It is a serious misconception that if one of a non-Muslim spouse converts to Islam, the marriage is invalidated. There is no decisive, unequivocal text (nass qati') about this matter. Pre-Islamic marriages are sound and valid. They are not considered illegitimate. They can only be annulled for definite reasons. Difference of religion is not a definite cause of invalidity due to the absence of an unequivocal text. Evidence from the Qur'an and Sunnah shows that a couple remaining together with a difference of religion does not damage the basis of their faiths. Their relationship remains sound, not corrupt. The simple fact that one of them converts to Islam does not invalidate the marriage.
Despite the multitude of people converting to Islam in his time, it is not recorded at all that the Prophet (pbuh) separated a husband and wife or ordered their separation due to one of them converting, or due to one of them converting before the other. What is authentic from him is the opposite, as in the case of his daughter Zaynab who remained married to Abul-'As for six years after she converted to Islam and before he did so, just before the Conquest of Mecca and after the revelation of Surah al-Mumtahinah. The most that happened was that she emigrated and left him in Mecca after the Battle of Badr, but her emigration (hijrah) did not nullify their marriage. To say that the ayah of al-Mumtahinah ends marital relations due to a difference of religion is not correct. It only applies when one spouse is at war with Islam (harbi), and the Hujjah has been completed on him by the Rasool. It does not apply to a non-Muslim, who shows tolerance towards the conversion of the spouse and allows the children to be educated in the Islamic way.
The ayah of Surah al-Mumtahinah (60:10) stating that "the believing women are not lawful for the disbelieving husbands.." was specific to those believing women who had emigrated from the territory of the adversaries, the Kuffar (those who disbelieve after the truth was made clear to them by the Rasool).
Ustaz Ghamidi commenting on this Aayah writes:
"When the Almighty directed Muslims to sever every kind of relationship with these disbelievers, then as an essential consequence of this the marriages of those women who had come to Madīnah to protect their faith were also terminated. It is evident that this directive relates only to those disbelievers who are active adversaries and started opposing it by becoming its enemies." (Ghamidi; Al-Bayaan, Vol. 5)
The reason for this is to prevent an inclination towards ones enemies, as happened with Hatib bin Abi Balta'ah, who wrote to the polytheists about some of the movements of the Muslims due to the presence of some of his relatives in Mecca.
When one of the couple converts to Islam whilst the other is not at war with Islam, they are allowed to remain together. They are not separated simply due to difference of religion. The evidence for this is the practice of the Prophet (pbuh) and the Companions regarding those who embraced Islam in Mecca before the Hijrah and at the Conquest of Mecca. A difference in religion due to the conversion of one of the couple to Islam allows the annulment of the marriage but does not obligate it.
The conclusions of the Madhhabs (juristic schools) in this matter are not to be given precedence due to their opposition to what is established, weakness of evidence (dalil), weakness of juristic indication (istidlal), or all of the above. The allowance for the couple to remain together means that their marital life together is permitted, including physical relations.
This is our view.