Can a woman divorce her husband? Khula’ in Islaam.

Question:

I have come across a question that what if a wife gives or say three times talaq at one time to her husband in front of everyone?
Do husband or wife needs to give Qufaaraa or Charity for it?
Does Khulla have any importance in Islam if yes then what are the obligation of husband after Khulla for wife and children?

 

Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

According to the pristine teachings of Shari’ah, a woman cannot come out of the marriage or divorce her husband on her own accord and will, rather divorce and ending the marriage is the exclusive right of the husband. Therefore if the wife uttered the words of divorce to the husband, even in the presence of others, there will be no implications on the marriage.

N.B. Even if the wife divorces the husband in a non-Islamic court, this will not constitute a valid divorce in Shari’ah.

Khula’

As mentioned, according to Shari’ah the right to issue a divorce solely belongs to the husband and not the wife.

However, Islam caters for the rights of both the husband and the wife. Islam has provided a facility to the wife to save herself from the possible oppression of the husband. If it is not possible to bring about any conciliation between husband and wife, after all possible means to rectify the marriage were done and the husband refuses to divorce her, it is permissible for the wife to give some money or her mahr (dowry) to her husband to enter into and agreement of Khula. Khula is an agreement between the husband and wife to dissolve the contract of marriage in lieu of the compensation paid by the wife. Khula can also be initiated by the husband.

Allah states in the Quran:

“…It is not lawful for husbands to take anything back which they have given them except when both parties fear that they may not be able to follow the limits set by Allah; then if you fear that they both will not be able to keep the limits of Allah, there is no blame if, by mutual agreement the wife compensates the husband to obtain divorce. These are the limits set by Allah; do not transgress them, and those who transgress the limits of Allah are the wrongdoers.” (Surah Al Baqara: 229)

From the above ayah it is clear that Khula can only be carried out with the consent and agreement of both the husband and wife. The wife does not have the jurisdiction to enforce Khula without the consent of her husband.

The Fuqaha (jurists) have written that if the husband oppresses the wife and makes her life difficult, and there was no fault on her path, then due to this she is forced to make Khula he should not take anything from her in compensation.  If the woman is disobedient and the fault lies with her then the couple may come to an amicable agreement with regards to Khula where she returns to him her Mahr (dowry) or some other amount. He may also, if he wishes, ask for her to return the things which he had gifted her with. However, he should not take any compensation in excess of the mahr (dowry) that he had given. He should grant Khula in exchange for the mahr alone, and not more than that. If he takes more than the mahr, it will not be a good thing, however it will be permissible.

After Khula takes place, whatever the man was owing to his wife or whatever the wife was owing to her husband will be forgiven. If the man still had a balance of the dowry to pay, it will be forgiven. Despite this, the man will have to feed, clothe and provide shelter to her until the end of her ‘iddah. However, if the woman had said that she will not even take advantage of these benefits during her ‘iddah, then they will also be forgiven.

In such a case where the woman did not want Khula, rather the man forced her and compelled her to make Khula, divorce will take place but it will not be wâjib (compulsory) on the woman to give any monetary compensation. If the man had an outstanding amount of mahr (dowry) to pay, this will also not be forgiven (he will have to pay it to her).

For further details on Khula’ refer to http://fatwa-tt.com/2015/06/28/explanation-of-khula/

 

And Allah Ta’āla Knows Best

Mufti Arshad Ali

Darul Iftaa, Jaamia Madinatul Uloom (Trinidad)

www.fatwa-tt.com /www.jaamia.net