Unable to accept the khula from wife.
Submitted by on Fri, 17/10/2008 - 02:21
Dear Brother / Sister,
Khula is the right of women in Islam to give divorce or get separation from her husband. After divorce the husband is responsible for the education, food and residence of children. The children live with the mother for 7 years. After 7 years children have the right to live with father or mother, as the parents decide. Before Islam, Arab women could also divorce their husbands by the simple pronouncement of the word "Talaaq" and they would use the applicable idol, Hubal, Manat etc) to legitimize the divorce. It may be difficult for a Muslim woman in a Muslim country to get a divorce. 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, AllahSWT 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.
“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)
“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.
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