About Seperation Initiated by the Wife (khul’)
Question:
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 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