Khula (divorce)

I got married 2 years back and I’ve daughter who is one year old now. My wife has applied for Khula (Divorce) in local Jamat (Mosque). She has mentioned in petition that she was not happy even for single movement in her married life and she went through lots of torture and harrasment. Also she mentioned that I’ve illegal relationship with my sister-in-law (elder brother’s wife).

We had 3 meetings in local Jamat (Mosque) related to this issue and my wife was not able to provide a single instance to proove her allegations on me. For most of the questions she and her family not able to answer instead of keeping silence.

Allah Subahnavatala knows very well that how me and my family treated her and how we taken care of her each and every requirement. First of all she made false allegations on me and majorly she lied in the house of Allah (Mosque) for which Allah will provide her with Ajar. Jamat tried lot to make her understand but she was not ready to listen anything except getting Khula. My question here is, In mehar I gave 16 grams of gold and along with that around 200 grams of gold jewelleries were given at the time of marriage to her. I need those for the girl who’s going to be part of my life after Khula, considering the current situation I don’t want to give those to the girl who doesn’t want to live with me. Can I take back those jewels along with Mehar.

I got some house hold goods from my in-laws at the time of marriage, do I have to return those to my wife.

Answer:

In the name of Allah, the most Beneficent, the most Merciful.

A Khula is an agreement between the husband and wife to dissolve the contract of marriage in lieu of compensation paid by the wife.

Allah states in the Quran: “…It is not lawful for husbands to take anything back which they have given them except when both parties fear that they may not be able to follow the limits set by Allah; then if you fear that they both will not be able to keep the limits of Allah, there is no blame if, by mutual agreement the wife compensates the husband to obtain divorce. These are the limits set by Allah; do not transgress them, and those who transgress the limits of Allah are the wrongdoers.” (Surah Al Baqara: 229)

From the above ayah it is clear that Khula can only be carried out with the consent and agreement of both the husband and wife. The wife does not have the jurisdiction to enforce Khula without the consent of her husband.

In regards to the compensation, if the husband was at fault (which lead to the khula), then it is undesirable for him to demand compensation in return for a divorce. Allah states in the Quran: “If you wish to marry another wife in place of the one you already have, do not take back anything of what you have given her even if it be a heap of gold…” (Surah Nisa v.20

Furthermore, there is a statement from Imam Zuhri  who says that a husband will be compelled to return the compensation he took from his wife if he had been at fault. (Musanaf Abdur Razzaq p.382 v.6)

However, if the husband did take compensation in the situation where he is at fault, it will be considered permissible, although Makruh. (Hidayah p.404 v.2) 

However, if the wife was at fault, then it is undesirable for the husband to take from her more than he had given her (dowry) although it is permissible to take extra. (Hidayah, Ibid)

An example of this can be found in a hadith where once Jamilah Bint Saluul came to the Prophet of Allah  wanting a khula from her husband. The Prophet of Allah  told her to return the garden which she took from her husband as the dowry, back to him. (Sunan Ibn Majah p.148 v.1)

Regarding your question on household goods and whether you will be required to return it back to your wife after the imminent khula depends on urf (custom) and on what you’re in laws intended. If it was given by the in laws to with the intention of making you the owner (tamleek) then it will not be necessary for you to return the gift at the time of khula. If it was given with a clear statement that it must be returned back then that would have to be returned at the time of the separation. (See Fatawa Rahimiyah p.236 v.8)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.



http://www.daruliftaa.com/node/5419

There is a Muslim sister who was married to a brother. At the time, they were both not praying, fasting or anything. She was not wearing hijab either. Then she changed. She started to wear the hijaab, pray, fast, and has now adopted the niqaab and is seeking knowledge as well as the principal advisor of an Islamic school.

Her husband is still not praying nor does he intend to as he has told her. She and he have had many arguments and he still will not pray. The mother was commanded by the husband on many occasions to take of the niqaab when she is with him in public and at one moment in time, he ripped it from her face and drug her inside, so that she could not leave the house to do her principal duties at the Islamic school.

This has been going on for quite a few years. Now the sister wants a divorce. He does not, so then she decided to seek khula. But I wanted to know, due to the fact that she has asked me, how is the khula procedure in the Hanafi school as well as if the following make any difference.

1) He has not paid her the mahr that he promised her on the marriage day.

2) There are four children involved

3) Does an imam have to be involved to initiate the khula from one side if the husband says that he does not want to?

4) Must the wife pay the husband and how is this affected if he has not given her the mahr? How would she give him half the value or the value of the mahr that he gave her when he has not given her the mahr as of yet?

5) Is she to wait 1 cycle or two in the Hanafi School upon completing the khula?

6) She has explained that every time that she sees him she feels sick and she has prayed istikhaara numerous times and has no doubt in her heart that she does not want to be married to him any longer.

7) There has been and has recently been physical violence against her by the husband as well as in front of the children.

<ANSWER>

In the name of Allah, Most Compassionate, Most Merciful,

In the situation where a woman can no longer remain in the marriage of her husband and all attempts to save the marriage have failed, then the ideal solution would be for her to obtain a divorce from the husband. The husband, seeing that the marriage is futile and there is no hope of reconcilement, should also issue one divorce according to the prescribed method in Shariah.

However, in the case where the husband refuses to issue a divorce, the wife may persuade the husband to enter into an agreement of Khul’ (a release for payment from the wife). The wife may also opt to forgive the husband from paying her dowry (mahr).

Khul’ is an Arabic term that literally means ‘to take out’ and ‘remove’. The Arabs say: “Khala’tu al-libas” (I took off my cloths). Similarly, Allah Almighty said to Sayyiduna Musa (Peace be upon him) when he went to receive the sacred law:

“Verily I am your lord! Therefore, take off (fakhla’) your shoes.” (Surah Ta Ha, 12)

The lexical definition of Khul’ as explained by the famous Hanafi Mujtahid, Ibn Humam is as follows:

“To remove the union of marriage in exchange of a financial settlement with the words of Khul.” (Ibn Humam, Fath al-Qadir, 3/1999)

Similar to other agreements and transactions, an agreement on Khul’ will also come into effect by acceptance and offer. (al-Kasani, Bada’i al- Sana’i, 3/145 & Radd al-Muhtar, 2/606)

The couple can normally agree upon any financial arrangement they desire. However, the Fuqaha state that, if the husband was at fault and it was his wrongdoings that resulted in the failure of their marriage, then it is impermissible for him to demand a financial payment in return for a divorce. He should divorce the wife without demanding anything in return. 

Allah Most High says:

“But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit of it back. Would you take it by slander and a manifest wrong? And how could you take it when you have gone into each other, and We have taken from you a solemn covenant?” (Surah al-Nisa, 20-21)

Due to the above verse of the Qur’an, the Fuqaha have declared the taking of anything in return as a major sin if the husband was at fault.

However, if the husband was not at fault, but the wife for some reason or another wishes to end the marriage, then it is permissible for the husband to demand and receive some financial payment. It would be superior for him not to take more than the actual stipulated dowry. However, it would be permissible for them to agree on any amount. (See: Bada’i al-Sana’i, 3/150 & Bahr al-Ra’iq, 4/83)

Allah Most High says:

“It is unlawful for you (men), to take back (dowry, etc…) from your wives, except when both parties fear that they would be unable to keep the limits ordained by Allah. If you (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom.” (Surah al-Baqarah, 229)

According to the Majority of Jurists (jumhur), a Khula’ agreement can be carried out without having to go to an Islamic court. Merely, the consent of both parties is sufficient. (See: al-Sarakhsi, al-Mabsut, 6/173)

A Khul’ is considered an irrevocable divorce and a finalized cancellation of marriage (ba’in), differing from a threefold divorce by the fact that they may remarry in such a case without her marrying another husband first.

If they did remarry, the husband will only remain the owner of two more divorces. Meaning, if he further issued two more divorces, it will total to three, thus he will not be able to take her back until she marries another man. (See: al-Mabsut, 6/173)

The waiting period (idda) for the woman will be similar to that of a woman who was given an irrevocable divorce (ba’in) which is three menstrual cycles. The husband can not take her back within or after the waiting period without her consent (by contracting a new agreement of marriage).

Finally, it should also be remembered that a Khul’ agreement can only be carried out with the consent of the husband. The wife does not have the jurisdiction to enforce Khul’ without the consent of her husband. This is an agreed upon ruling in all of the four Sunni schools of Islamic law.

The great Hanafi jurist, Imam al-Sarakhsi says:

“An agreement of Khul’ is permissible with or without the presence of a judge, as it is a contract that is based on mutual agreement.” (al-Mabsut, 6/173)

The same has also been mentioned in Radd al-Muhtar, al-Fatawa al-Hindiyya and other major works.

With the above discussion, I sincerely hope all your queries with regards to Khul’ have been answered.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

http://askimam.org/public/question_detail/30751

When we first got married. my husband was a kind and gentle man but after several months, he became a different person. Not wanting me to be out even to work and he doesn't work, screamed at me. He didn't want to go find a job and was expecting me to support him. He refused to talk about it and said claimed he is sick but no symptoms of any kind. He stopped going to Jumah and stopped leaving the house, and would lock himself up in his room with his Iphone. When I got pregnant, things started to get worse. he went crazy like. I had come complication with my preganacy and had my baby extremely early. While resting in bed, he wanted me to abort my child saying that he doesn't want to have a monster baby and to get it abort. When I didn't want to, he got very upset with me. My child is now 3 years old and healthy to an extent, thanks God.

He doesn't support me or my child, doesn't like my mother who is living with me in my house. When my child was extremely very sick, he doesn't want me to take my child to the emergency room. We sleep separately since my child came home.  He slept all day and stayed up all night, did light stuff around the house (fixing and cutting grass). He did more screaming and threaten to kill me. I tried to keep the family together but it was hurting me too much. Dreadful coming back home from work each day. I've had enough and finally kicked him out and he demanded that I pay him, after so many fights and arguements and him threating me and wanting money, I sold my car, gave him the money he d

emanded so he can get out (the money he took was not something I was willing to offer him, he forced me). He's been out of my house for over 2 years now. i asked for a divorce and granted by Texas law but he never showed up in court for the hearing.  He wanted all his mahr (which he used my money to buy for me - he admittely) back.  Again, he has not supported me or my child in any way and was living in my house hold.  I've been raising my child by myself since she was born.

I have 3 questions:

1. The money he forced from me and because I felt threaten, i gave in to his order - is that money halal for him to take?

2. Am I divorce Islamically?

3. The Mahr, do i have to give that back?

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

It is indeed a great misfortune that you have faced such circumstances in the course of your marriage due to your husband’s irresponsible attitude and conduct. We offer our sympathies to you and we ask Allah Ta’ala to grant you easiness in all of your affairs. Aameen

1. It was incorrect for your husband to pressurize you to give him money. Nevertheless, if you gave him the money out of your free will but under pressure, in which your life or limbs were not in danger, then the money given to him will be lawful. However, it was immoral for your husband to take your money under such circumstances.

2. A civil divorce and its implications differ from an Islamic divorce. If your husband has not given you an Islamic divorce then unfortunately, your marriage with him remains intact, the civil divorce does not result in an Islamic divorce.

You may seek help from the local ‘Ulama of your area to further assist you in the matter.

3. The mahr (dowry) is amongst the rights of a wife. Once the mahr is given to a woman, it is rightfully hers. As such, you are not obliged at all to return the mahr to your husband; he has no right to claim the mahr.

Sister in Islam, we would like to remind you that a woman is not permitted to leave her home and work if there are other individuals from her family to provide for her. However, if she does not have anyone to provide for her then Shari’ah permits such a woman to earn an income, provided that she does not violate any of the injunctions of Shari’ah.

And Allah Ta’āla Knows Best

Fahad Abdul Wahab

Student Darul Iftaa

USA

Checked and Approved by, 

Mufti Ebrahim Desai         

I had an arrange marriage few years back. Before marriage my inlaws portrayed themselves as very humble kind and respectful towards me and my family besides being religious. However soon after marriage they revealed their true hypocratic and immoral identity.

My husband had a very strange and really unpleasing attitude towards  every marital matter. He was indulged in various haram and immoral acts and always forced me towards those too. There was no single matter of life where I was given an excuse and not abused by him be it spirtual, marital, physical, psychological, economical affair. Besides his family also hated me a lot and tried every option to tease me even by abusing and insulting my family. I made every halal possible effort to correcten my husband so that he may leave his bad habits and come towards righteousness but to no avail.

The situation got worsen day by day and finally I was made to leave his house.the only option I was left with was of divorce. He refused to divorce me but was also not ready to leave the life of sin.

Finally I applied for Khula in the same year. The court made the decision in my favor and the dissolution of marriage got declared accordingly few months later. Please note that during all this perior from separation to khula he neither contacted me nor made any positive attempt to reconcile the matter but came up with a disgracing attitude and even revealed our personal relations.

Since according to our country's law a khula can take place even without the husband's consent .it happened in my case too where my ex husband was not willing for me to take khula from him. As far as Haq Mehr is concerned, I sent it back to him via court proceedings but he has not accepted that amount . My dowry articles (and gifts that my parents gave me on wedding) are also still with him and he is not ready to return anything from them. 

Last day while going through the fatwas issued on the topic of khula at your prestigious website, I came to know that its not valid if without husband's consent.

It has made me really confused and perplexed whether I am a divorced woman or still his wife. I have told you already about my painful marital life history. Please let me know what is my status in this context?  

http://www.askimam.org/public/question_detail/26818

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

Sister in Islam,

We are deeply disturbed by the account of your turbulent marriage. It is indeed a great misfortune that you faced such tragic circumstances in your marriage. We sympathize with you on your problems and commend you on your aversion to the evils committed around you. We also make dua that Allah grant you peace and happiness. Aameen

As far as your query pertaining to the validity of Khula without the consent of the husband is concerned, this is not a valid Khula.[1] Therefore, the dissolution of your marriage by the court by means of Khula without your husband’s consent will have no effect on your marriage. You are still considered his wife.

Our advice is that you consult an Ulama body in your area or a competent Islamic court and present your case to them asking for annulment of your marriage (Faskh-e-Nikah).[2]

As far as your Mahr is concerned, it still belongs to you as your marriage is still intact. Therefore, you may retract it from the court. As for your dowry articles (gifts e.t.c.), if they were solely given to you, then you may file a request with the court for their procurement. However, if they were jointly gifted to you and your husband, then it is imperative that you come to an agreement with your husband and share them equally.

And Allah Ta’āla Knows Best

Nabeel Valli

Student Darul Iftaa
Zambia

Checked and Approved by,
Mufti Ebrahim Desai.

www.daruliftaa.net