Question:

Has the Khula ruling in favour of woman occurred? Has it occurred on the grounds of Qadha or Tahkim? If the Khula has occurred, is sister MM currently observing her iddah?

Answer:

Khula is when the wife seeks to annul the marriage as she is no longer able to maintain a relationship with her husband. Shari’ah has given a woman this option where she can choose to separate from her husband and she will return her mahr, dowry.

“To annul the marriage in return for a specified amount of wealth is called khula. It is a condition that a woman herself must accept this. If she does not, the khula will not take place. The wordings for a khula are specified, it cannot be carried out with any other wordings.”

In shariah there are two ways for khula to take place.

1. A woman will give up either some or all her mahr (dowry).
2. A woman will give a certain amount of wealth from herself.

Both scenarios will only be permissible when there is no longer any means of reconciliation between the husband and the wife. Regarding the second scenario, Allah ﷻ has mentioned in the Holy Qur’an:

“However, if, after attempting reconciliation, you believe that the couple may not be able to live within the bounds set by Allah, then there will be no blame on either if the woman chooses to give back her settlement. These are Allah’s boundaries, so do not overstep them. Only the wrongdoers overstep Allah’s boundaries. (Al-Baqara: 229)

It is mentioned in Al- Fatawa Al-Hindiyah: “When there is discord between a husband and a wife, and they fear that they can no longer live within the boundaries set by Allah ﷻ. There will no sin upon the woman if she gives some wealth and saves herself. Once she does this, this will be considered a ba’ina (irrevocable) divorce.”

Imam Khaskafi mentions in Durr ul Mukhtar: “There is no harm for a woman to seek khula when the
differences are such that reconciliation seems unlikely.”

Khula by means of Qadha (Judiciary) or Tahkim (Arbitration)

Khula is possible by Tahkim or Qadha. In Tahkim, the elders of a family or an area gather and try to reconciliate the marriage, if this is not possible then they separate the couple.

It is stated in the Holy Qur’an:

“If you fear hostility between husband and wife, then appoint a mediator from his family and one from her family. When both try sincerely to reconcile them, Allah will certainly bring about reconciliation between them. Allah is the Knower, the Aware. (Al-Nisa: 35)

Hence Allama Ibn Al-Abidin Al-Shami has mentioned in Radd Al-Mukhtar: “There is no harm in a woman seeking khula when there is clear discord between them. Al-Qohistani in his commentary on Al-Tahawi has mentioned that when discord occurs between a husband and a wife, then they should gather their family members who should seek to reconcile between them. If this is not possible then the woman should be divorced or khula should be sought.”

Khula can also be established by the Judiciary

Ibn Abas narrates that the wife of Thabit ibn Qays came to the Prophet ﷺ and said, “O messenger of Allah, I have no complaint with Thabit ibn Qays concerning his character or religion, but I do not want to disobey the teachings of Islam.” The Prophets ﷺ said, “Do you agree to return the garden you received in mahr?” She replied, “Yes.” The Prophet ﷺ then told Thabit ibn Qays, “Accept the garden, and give your wife a divorce. (Sahih Al-Bukhari & Mishkat Al-Masabih)

This example clearly shows that the judiciary can grant a divorce or khula even if both or either parties are not in favour of it.

If certain conditions are fulfilled, then the courts can annul a marriage.

1. – The husband does not cover the wife’s expenses
   – He is abusive towards her
   – He refrains from engaging in marital relationship with his wife yet refuses to divorce her.
2. – The wife is young, and the husband has such an illness that he can no longer engage in
   marital relations
   – The husband is unable to engage in marital relations for whatever reason potentially
   causing the wife to engage in sin.
3. The wife is young, and the husband has been given a prison sentence of ten or more years. If this situation pushes her towards sin, the marriage will be annuled.

If a judge or the courts annul the marriage for any such reasons, then this will be considered a talaq ba’in (irrevocable divorce).

Khula in the U.K, Europe and the U.S

In the U.K, Europe and the U.S there are Islamic organisations which are fulfilling the role of traditional Islamic courts. These organisations can give a ruling of khula in light of the reasons mentioned above. Islam has given great honour to the relationship between a husband and a wife. If their differences have reached such a level that it is no longer possible for them to live together, the wife can seek separation by means of khula.

It is mentioned Al-Fatawa Al-Hindiyah, “When there is discord between a husband and a wife, and they fear that they can no longer live within the boundaries set by Allah ﷻ. There will no sin upon the woman if she gives some wealth and saves herself. Once she does this, this will be considered a ba’ina (irrevocable) divorce.” Allama Ibn Al-Abidin Al-Shami mentions in Durr ul Mukhtar “There is no harm in a woman seeking khula due to discord in the relationship.”

Both texts clearly show that a woman may seek khula when there is discord in her marriage. It is necessary to inform the husband of this.

There are two scenarios once the husband has been informed:

1. He will give permission for the khula to take place. The wife will return her mahr and a talaq ba’in will occur. After completing her iddah (waiting period), she can marry again.
2. If the husband refuses, then a qadhi will rule in favour of her khula in the light of strong supporting evidence. If there is no qadhi present, then the relevant Islamic organisation will fill this role and again, with the presence of strong supporting evidence will rule in favour of the

In this case, there was strong supporting evidence which was given against her husband and as a result the relevant Islamic organisation issued a ruling of khula. This has resulted in a talaq ba’ina occurring and she is in her iddah.

And Allah knows best.

Dr Musharraf Hussain Al-Azhari
Director of British Fatwa Council