Question:

What do the scholars and experts of shari’ah say regarding the rights of divorce in Islam? Does the husband have the right to divorce and does the wife have the right to khula’?

Answer:

In the case of a marriage breaking down the shari’ah gives the husband the right of divorcing the wife. Likewise, if the wife feels that she can no longer remain in a marriage then she has the option of ending the marriage by way of khula’.

Khula’ was first used by the wife of Thabit ibn Qays. Abdullah ibn Abbas narrates that the wife of Thabit ibn Qays came to the Prophet ﷺ and said, “O Messenger of Allah, I have no complaints regarding his character or religion, but I would hate to be disobedient in the religion.” The Messenger of Allah ﷺ said, “Will you return his garden to him?” She said, “Yes.” The Messenger of Allah ﷺ said, “Accept the garden and divorce her.” (Bukhari)

It is a condition in khula’ that the husband must agree to the separation. Therefore the reasons for annulling the marriage are presented to him.

The question can be asked that is it correct for the wife to seek khula’ when there is valid reason or shortcoming with the husband?

The shari’ah makes it clear that khula’ is only sought by the wife when she is facing severe difficulties in her marriage and there is no longer any hope of reconciliation. In a hadith narrated by Thawban, the Messenger of Allah ﷺ said, “the woman who requests a divorce from her husband for no legitimate reason then the perfumes of paradise will be made haram for her.

Other avenues should be sought in order to maintain a marriage. If a couple cannot work it out between themselves then they should present their situation to someone senior and responsible who they both can listen to. If ultimately the best solution is a khula’, then the husband can request for the mahr to be returned to him. It will makruh for him to request anything more than this.

And Allah ﷻ knows the best

This fatwa is written by Dr Hafiz Munir Al-Azhari.