First of all, AIDS is one of the contagious diseases; rather, the most dangerous one indeed, that require the annulment of marriage. If the infection is unveiled before contracting the marriage, then the other spouse has the right to annul the marriage. Now, what about the case if the matter is unearthed only after making the contract. The issue is controversial; according to some jurists, the woman has the right to ask for Khul’ while the husband, if the wife is infected with AIDS, can resort to divorce. Other jurists, however, state that the annulment of marriage is the best solution in such a case.
Shedding more light on the issue, Sheikh Fahd Al-Yahya, a prominent Saudi scholar, states the following: It goes without saying that AIDS is one of the most harmful defects that gives any of the spouses the right to ask for separation. Since Muslim jurists have defined only the defects that validate terminating marriage according their knowledge, AIDS is much more dangerous than most of these defects, given the fact that it is a contagious disease. May Allah save us all from it! Amen!
Annulment of marriage in case of a defected spouse takes authority from the practice of `Umar, may Allah be pleased with him, who, as is recorded in Muwatta (written by Imam Malik) to have invalidated marriages in case of spouse’s being infected with leprosy, madness and vitiligo. `Umar is reported to have said: “Whenever a man consummates his marriage with a woman and later finds that she is mad, leprous or a victim of vitiligo, she has the right to take all her dower. The woman’s guardian has to pay back the husband because he has cheated him.” AIDS is similar to leprosy or much more dangerous. However, it is to be born in mind that the defect that enables one of the spouses to seek annulment of the marriage is the one that already exists before the contract of marriage and even unknown to the spouse. If the defect exists after the marriage, this does in no way validate annulment. Rather, the husband has the right to divorce the wife and she has the right to ask for Khul`. This is the view hold by some jurists.
According to other jurists, the defect, whether exists before or after marriage contract, makes a room for annulment of marriage. This view is maintained by Shafi`is and Hanbalis. Thus, according to the first view, defects that occur after marriage contract does not render the marriage annulled. In this respect, it is important to know that annulment of marriage in such a case should be decided by a Muslim judge. Many jurists emphasize on this point, stipulating that annulment of marriage is to be declared by the Muslim judge and should not be left to the spouse’s personal decision .
If one of the spouses informs the other about his/her defects and the other spouse shows readiness to live with that, then the latter has the right to consummate the marriage. However, the decision of consummating the marriage in this case will be deemed to have been taken with full awareness of the danger such defect may pose.
One remaining point to be stressed is that a person who accepts another one (as a spouse) while knowing that he/she is infected with AIDS through an illicit affair and still keeping on his evil ways, can never be considered a chaste and faithful person.”