The Regulations of Khula’ — The Annulment of a Marriage at the Request of the Wife

All praise is due to Allah, the Lord of all creation; may the peace and blessing be upon our noble Prophet Muhammad, his family, his Companions and all those who follow him exactly until the establishment of the Hour.

The Fiqh of Khula’ (Annulment at the Wife’s Request)

The Companion, Ibn ‘Abbās (رضي الله عنهما) said: The wife of Thābit ibn Qays came to Allah’s Messenger (صلى الله عليه وسلم) and said:

“O Messenger of Allah! I find no fault with Thābit ibn Qays in his character or religion, but I would hate to act in disobedience to Islam.” The Messenger of Allah (صلى الله عليه وسلم) said to her: “Will you return to him the garden [that he gave you as a dowry]?” She replied: “Yes.” So Allah’s Messenger (صلى الله عليه وسلم) said to Thābit: “Accept the garden and divorce her with one pronouncement.” (Bukhāri, 5273) In another narration, Ibn ‘Abbās said: “He commanded him to divorce her.” (Bukhāri, 5274)

This is the first hadeeth quoted by Al-Hāfidh Ibn Hajr (d. 852H) in his Buloogh Al-Marām, Chapter of Khula’ (باب الخلع).

Khula’ is to dissolve/annul a marriage in return for some compensation from the wife given to her husband. Or it may be said that the Khula’ is to separate a married couple for some compensation. So the Khula’ does not occur with the pronouncement of talāq (divorce) instead the term khula’ is employed.

Khula’ is permitted in Islamic law and is proven by the Qur’an, Sunnah and Ijmā’ (consensus of the Muslim scholars):

In the Qur’an: Allah, the Most High, stated:

فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ ۗ

“Then if you fear that will not be able to keep to the limits ordained by Allah, then there is no sin on either of them if she pays compensation (i.e. gives back her dowry) for her Khula’.” (Al-Baqarah 2:229) And the intent of “the limits ordained by Allah” are the rules of marriage: living together harmoniously and in a good manner as a couple. “There is no sin on either of them” if the wife releases herself with compensation that she pays to her husband — and upon that basis, they are separated and no longer married.

In the Sunnah are the narrations we shall mention in this article.

From the Ijmā’: The scholars and jurists of Islam are agreed that the Khula’ is legislated and allowed when there is a need.

This hadeeth of Ibn ‘Abbās (رضي الله عنهما) mentioned above discusses the khula’ that took place with Thābit ibn Qays ibn Shimās (may Allah be pleased with him) and his wife, Jameelah bint Abdillāh ibn Ubayy ibn Salool (may Allah be pleased with her). This Thābit was from the excellent and noble Companions of the Prophet (صلى الله عليه وسلم), he was eloquent in speech. He participated alongside the Messenger (صلى الله عليه وسلم) in all the battles and was martyred at the battle of Yamāmah whilst fighting against the Musailamah Al-Kadhdhāb (the liar who claimed prophethood for himself). Allah’s Messenger (صلى الله عليه وسلم) bore witness that Thābit would enter Paradise.

Khula’ for no Fault in his Character or Religion?

As for his wife, she was Jameelah the daughter of Abdullāh ibn Ubayy ibn Salool, and she was a beautiful woman. As for Thābit, then he was not physically attractive, and she disliked him due to that and not due to his character or religion. Indeed, he was from the most excellent and virtuous people in terms of character. So Jameelah (رضي الله عنها) was honest and simply stated, “I find no fault with Thābit ibn Qays in his character or religion…” This shows her justice; she did not make excuses and invent faults that were not present. She said, I would hate to act in disobedience to Islam.” Meaning that she would not be able to fulfil his rights that are due to a husband because she disliked his physical features — she feared that if she remained with him she would not establish the marital rights.

The wording she used was, “I would hate kufr in Islam”. The “kufr” here is to neglect the rights of her husband. The Prophet (صلى الله عليه وسلم) said in another hadeeth, “You women commit kufr with respect to your husbands.” (Bukhāri 304, Muslim 80) Meaning that they are ungrateful to their husbands and do not establish their rights. The intent is not that they have left Islam.

So this statement of Jameelah bint Abdillāh (رضي الله عنها) shows her piety, honesty and justice. In response, the Prophet (صلى الله عليه وسلم) said to her: “Will you return to him the garden?” That is because he had gifted her a garden as a dowry upon marriage. She responded: “Yes.” So he said to Thābit (رضي الله عنه): “Accept the garden and divorce her with one pronouncement.”

This narration is foundational in proving the allowance of Khula’. There is no sin on the husband, if he encounters dislike from his wife, that he takes from her some compensation if he loves her but she does not love him. This is from the beauty and justice of Islam and a means of the removal of harm and animosity. Furthermore, Allah does not ascribe sin to either party.

Khula’ and Talāq are not the Same

The Prophet (صلى الله عليه وسلم) said to Thābit: “Accept the garden and divorce her with one pronouncement.” The intent of the pronouncement is the Khula’. The scholars have differed regarding the Khula’: Is it an annulment (faskh) of the marriage or a divorce (talāq)? The discussion is important because if it is considered a divorce then it is counted among the three divorces. However, if the Khula’ is considered an annulment (faskh) then it is not counted among the three divorces. So, what is correct is that the Khula’ is an annulment and not a divorce — when a Khula’ takes effect it does not affect the number of divorces already pronounced; it does not increase them or decrease them. This was the position of Ibn ‘Abbās (رضي الله عنهما) and group of scholars along with him. Ibn ‘Abbās took his understanding from the statement of Allah, the Most High:

الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ ۗ وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَن يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ ۖ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ ۗ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا ۚ وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَأُولَٰئِكَ هُمُ الظَّالِمُونَ – 2:229

فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ ۗ فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَن يَتَرَاجَعَا إِن ظَنَّا أَن يُقِيمَا حُدُودَ اللَّهِ ۗ وَتِلْكَ حُدُودُ اللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ – 2:230

“The pronouncement of divorce is only twice, then after that either you keep her as your wife on reasonable terms or you release her with kindness…” after this Allah states, “Then if you fear that will not be able to keep to the limits ordained by Allah, then there is no sin on either of them if she pays some compensation (ideally gives back the dowry) in return for her Khula’. These are the limits set by Allah, so do not transgress them. And whoever transgresses the limits of Allah, then they are the wrongdoers.” Then Allah continues, “Then if you divorce her…” meaning for the third time, “She is not lawful to him after that until she marries another man [and if that marriage fails, she may marry her previous husband].” (Al-Baqarah 2:229- 230) So Allah mentioned two divorces, then the Khula’, and after that, he mentioned the third divorce. If khula’ was the equivalent of divorce (talāq) then that would amount to four divorces! So, this proves that the Khula’ does not amount to a talāq (divorce). The Khula’ is an annulment that separates husband and wife with a lesser separation wherein she is not lawful to him except after a new marriage contract (nikāh) — and the previously pronouncements of divorce remain as they are. This is most correct saying of the scholars. [1]

Returning the Dowry (Al-Mahr)

This hadeeth also proves that the execution of the Khula’ is dependent upon the return of the dowry (mahr). The Prophet (صلى الله عليه وسلم) said to Jameelah: “Will you return to him the garden [that he gave you as a dowry]?” She said: “Yes.” So he (صلى الله عليه وسلم) said to Thābit: “Take back the garden and divorce her with a single pronouncement.” So this proves that the Khula’ is based upon the amount of dowry (mahr) and nothing is to be added to that — and this is the position of some of the scholars.

The second opinion (among other scholars) is that there is no harm in the husband seeking more than the dowry he gave his wife at the time of marriage. They understand this from the saying of Allah: “Then if you fear that will not be able to keep to the limits ordained by Allah, then there is no sin on either of them if she pays compensation for her Khula’.” (Al-Baqarah 2:229) So in the verse itself, there is no limit set for the compensation — the wording (fidyah) is left unrestricted. So this is used by those scholars to say that the compensation can be greater than the value of the dowry the husband initially gave her. And this seems the more correct position among the scholars. Therefore, the instruction to Thābit (رضي الله عنه) from the Prophet (صلى الله عليه وسلم) was by way of what is preferable and recommended — i.e. that at the time of the Khula’, the husband should not take from his wife more than what he gave her (as dowry) when he first married her. However, if he seeks an increase on that [within reason], there is no harm.

The Waiting Period (Al-‘Iddah)

In a narration Ibn ‘Abbās (رضي الله عنهما) said: “The wife of Thābit ibn Qays took a Khula’ from him — so, the Prophet (صلى الله عليه وسلم) made her ‘iddah (waiting period) one menstrual cycle.” (Abu Dawood 2229, At-Tirmidhee 1185)

This hadeeth proves that the waiting period for the woman who gets the khula’ (the مختلعة) is one menstrual cycle because one cycle is sufficient to establish that she is not pregnant — and also because there is no taking back once the Khula’ is given.

The reason why three menstrual cycles are the waiting-period in a divorce is that it gives the husband an opportunity to reconcile and take his wife back [if it was the first or second talāq]. Allāh stated:

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ ۚ وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ اللَّهُ فِي أَرْحَامِهِنَّ إِن كُنَّ يُؤْمِنَّ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۚ وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ إِنْ أَرَادُوا إِصْلَاحًا ۚ وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ ۚ وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ – 2:228

“Divorced women remain in waiting for three periods…” Meaning three menstrual cycles. Allah continued: “And it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation.” (Al-Baqarah 2:228) So this waiting-period is longer than in the Khula’ because it affords the husband and wife the opportunity to reconcile their differences before the three periods expire and the marriage comes to an end.

So, in the case of divorce, if it is the third pronouncement [of divorce], then there is no taking back one’s wife — in this case, also, the waiting-period becomes one menstrual cycle to establish that she is not pregnant. But, if the divorce is the first or second pronouncement, then the waiting period (‘iddah) is three menstrual cycles.

If it turns out that the wife is pregnant, then in every case, the ‘iddah extends up until the baby is born. Once the baby is born, then the ‘iddah (waiting period) finishes, and she may re-marry. And, if it was a third talāq, she may not (of-course) remarry her husband.

In other than a Khula’ or the pronouncement of the third talāq, a husband may take his wife back during her pregnancy. Additionally, he is allowed to divorce during her pregnancy and she is allowed to seek a Khula’ during her pregnancy.

There is another saying of the scholars that the waiting period (‘iddah) in all cases is three menstrual cycles, whether first, second or third divorce and in the Khula’ (except in the case of pregnancy which remains as stated above).[2] However, the hadeeth of Ibn ‘Abbās proves that the waiting period where a husband cannot take his wife back and the wife cannot return to her husband is one menstrual cycle. And Allāh knows best.

‘Amr ibn Shu’ayb reported from his father, from his grandfather that Thābit ibn Qays (رضي الله عنه) was unattractive and his wife said: “If it was not for the fear of Allah, when Thābit entered in my presence, I would have spat in his face.”  (Ibn Mājah, 2057 and declared weak by Al-Albāni) Also, Ahmad reported in his Musnad (16095) from Sahl ibn Abee Hathmah that: “This was the first Khula’ in Islam.”

It is said that he was unattractive and she was not attracted to him at all, rather she immensely disliked his physical appearance. It was for this reason that the Prophet (صلى الله عليه وسلم) granted her the Khula’ because there was no benefit in them remaining together.

From the standpoint of how Thābit (رضي الله عنه) is viewed, then we say that in the sight of Allah and with respect to one’s piety, consideration is not given to outward appearances. Thābit ibn Qays (رضي الله عنه) was from the most virtuous of Companions and from the greater of them. The Messenger (صلى الله عليه وسلم) bore witness that he was to be in Paradise. So, his unattractiveness does not harm his status because what matters is the condition of the hearts of people and their righteous deeds. Allah said regarding the hypocrites: “And when you look at them, their bodies please you; and when they speak, you listen to their words. They are as blocks of wood propped up. They think that every cry is against them. They are the enemies, so beware of them. May Allah curse them! How are they  deviating from the Right Path.” (Al-Munāfiqoon: 4) They were people of fine speech but their hearts were devoid of faith, so their outward beauty does not benefit them, and Thābit’s (رضي الله عنه) outward unattractiveness does harm him.

Some Important Scholarly Fatāwā (Edicts)

The Compensation:

The ‘Allāmah, Shaikh Muhammad ibn Ibrāheem Āl Ash-Shaikh (رحمه الله) said: “It is not recommended for the husband to take back from his wife in the case of Khula’ more than what he had given her (as dowry). So, if he does ttake more, it is hated but the Khula’ is valid because they are both satisfied with that. This is the position of the majority of the scholars and has been narrated from ‘Uthmān, Ibn ‘Umar, Ibn ‘Abbās, ‘Ikrimah, Mujāhid, Qabeesah, An-Nakha’ee, Mālik, Shāfi’ee and from the people of analogy and opinion (Ashābur-Ra’ee).

It has been narrated from Ibn ‘Umar and Ibn ‘Abbās that they said: If a woman takes her Khula’ from her husband in return for a mirror or a string that binds her forelock, then that is permissible [if he agrees to it]. And this is what is well-known in the Madhhab [of the Hanbalis] and that is what is correct.” (Fatāwa wa Rasā’il of Shaikh Muhammad ibn Ibrāheem Āl Ash-Shaikh, 10/312)

Change of Mind in a Khula’:

The ‘Allāmah, Shaikh Abdur-Rahmān ibn Nāsir As-Sa’di (رحمه الله) was asked: “If a man grants his wife a Khula’ based on giving a compensation [of dowry or otherwise], then he desires to return back to her after they have already agreed but before she has taken possession of the compensation. Is this allowed?”

He answered:

“If he has given her the Khula’ in reality, such that between them the annulment (faskh) has taken place and the only matter that remains is handing over the compensation, then, in this case, there is no way out even if he has not taken possession of his compensation (i.e. the Khula’ is valid and not reversible).

However, if they agreed without an actual annulment taking place, wherein they agreed that he will (in the future) give her the Khula’ in return for a compensation, then this does not entail an annulment. Rather, what has taken place is a promise that he will grant her an annulment even though he does not later grant it. So, in this case, he can take back his intention and not carry it out.

But if he said to her, ‘If you give me such-and-such compensation then I have granted you the Khula’ and granted the annulment.’ In this case, according to the [Hanbali] madhhab there is no going back on that. And according to the Shaikh [whom As-Sa’di is referring to]: If the husband has not taken possession of the compensation he asked for, he is allowed to take her back. 

However, the safest position is that if this final scenario occurs, and the couple want to get back together, they must make a new marriage contract (‘aqd of nikāh) so that they are removed from controversy.”(Al-Fatāwa As-Sa’diyyah pp. 506)

Deficiency in Religion: A Reason for Khula’?

The ‘Allāmah, Shaikh Abdur-Rahmān ibn Nāsir As-Sa’di (رحمه الله) was asked: “It is said that seeking a Khula’ for deficiency in the Religious practice of one’s husband is allowed. Is that this correct or is it an obligation in that situation?”

He answered:

“If the deficiency is that he has abandoned being chaste, or has abandoned the obligatory prayers, or the fasts, or has adopted innovations such as that of the Rāfidah and similar to that, then what is correct is that she should be aided in helping her separate from such a man by every means possible because it is not permissible for her to remain with one who is in this condition if it is not possible to rectify him and make him steadfast. However, if his deficiency is that he falls into some affairs that are forbidden, especially if they are minor sins, then it is not obligatory on her to seek a Khula’ so long as he does not compel her to commit those sins.” (Al-Fatāwa As-Sa’diyyah pp. 506-507)

If the husband refuses to grant his wife a Khula’ and he will not divorce her, then has the right to use Islamic courts or a recognised Sharee’ah council (in non-Muslim countries) to apply for a Khula’. Such a Khula’ is considered legitimate.

And all praise is due to Allāh, the Lord of all creation.


References:

This article was based primarily on the work Tas-heel Al-Ilmām bi Fiqhil-Ahādeeth min Bulooghil-Marām of the Scholar, Jurist and ‘Allāmah: Dr Sāih ibn Fawzān ibn Abdillāh Al-Fawzān (vol. 4).

[1] See At-Tamheed 23/371, Al-Istidhkār 6/82, Fathul-Bāri 9/400, Al-Mabsoot 5/32, Badā’i as-Sanā’i 3/227, Al-Mughni al-Muhtāj 3/262, Al-Mughni 8/181, Ash-Sharhul-Kabeer 8/185, Naylul-Awtār 7/23.

[2] See Al-Mabsoot 5/7, Badā’i as-Sanā’i 4/515, Mukhtasar al-Muzani 1/234, Al-‘Umdah 1/414, Ihkām al-Ahkām 1/193.

Copyright Abu Khadeejah 2018. All rights reserved.

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