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Fatwa Answer

Question ID: 1438 Category: Marriage and Divorce
Divorce Question

Assalamualaikum Respected Scholar,

My ex-wife was from a different state, and after she left my home without permission, from her state my ex-wife filed a restraining order against me based on false accusations. The order forbade any contact or communication with her whatsoever. Even though I had not made any contact with her since she left our home some weeks ago. I was unable to fight this restraining order because I couldn't travel out of state due to my financial situation. I still didn't have an intention to end our marriage but at the advice of my Father, I spoke with a Divorce Attorney in my state, who actually disclosed to me that my ex-wife had also contacted him. I was shocked to hear this, and because now it was clear to me that my ex-wife wanted to end our marriage, I decided to submit to the court a "Petition for Dissolution of Marriage" in my home state. This was to avoid having to travel to my ex-wife's state for court proceedings in case further false accusations were made against me.

The "Petition for Dissolution of Marriage" is a formal request to the court to end the marriage. But, I didn't view this as a Talaq. I filed the petition to the court and my attorney then sent it to my ex-wife. Then the next step as part of this process was that through our respective attorneys my ex-wife and I negotiated a "Marital Settlement Agreement". All her material belongings were returned to her. The Marital Settlement Agreement has broad legal language. In this Agreement we had agreed to the division of any financial assets as well as released each other from all other claims.

We came to an agreement through our lawyers that she would keep the jewelry, and I would also not have to pay her anything. Finally, my ex-wife signed and notarized this document first, after which I signed this Marital Settlement Agreement. This Agreement was then made part of my case. My lawyer presented everything to the Judge, and the Judge finalized and approved the divorce. I viewed this entire occurrence as a Khula since my ex-wife had herself left our home and legally forbade me from contacting her. Furthermore we had made an agreement after I petitioned the court for Dissolution of Marriage that I would not have to pay her the mahr, and she wouldn't have to return the jewelry. But I would like to know what is the religious verdict, and want to know if I should still pay her the Mahr, even though we had a Marital Settlement Agreement which she agreed to and signed first.

بسم اللہ الرحمن الرحیم

الجواب وباللہ التوفیق

Simply if the wife leaves the house, “Khul’a” does not take effect, unless a woman demands “Khul’a’ and the husband accepts and signs the document.

Since you filed for divorce in court, and the court sent that divorce decree to your wife through your lawyer, that would be called divorce and not “Khul’a.

Because divorce was given by the husband, it is therefore necessary for the husband to pay the dower to the divorcee, unless she forgives it.

As for the issue of goods and dowry; if divorce is granted without any condition, and if the husband has yet not given the dower to the wife, then the dower and all the wife’s dowry must be returned to her.

Generally, if the goods are such that they are purely under the ownership of the woman, like the dowry, (goods and gifts given by her parents at the time of her marriage) and jewelry given to her by her parents, will be given back to her.

Jewelry, if given to the bride by the husband or his parents, as property under her ownership, it will not be taken back in case of divorce. But if lent for her use as and when required, it can be taken back.

But if nothing was specified at the time of giving, then the society norms will apply. Norms are generally based on comparable cultural and financial status. 

Therefore, if the common practice within their culture and society is to give the jewelry as property, it will not be returned, but if the practice is to only lend the jewelry, it will then be returned to the husband or to his parent.

In case there are no specific cultural practices, and the husband has already paid the dower to his wife, then the husband's opinion will be valid in this regard.

Above rules apply when there is no pre-divorce agreement. If an agreement has been reached between the couple before the divorce, then it is necessary for both of them to abide by it. It is important to note that the husband is not allowed to demand from the wife more than the value of dower he had given to her.

We do not know the details of rest of the agreement, so it would be better if you refer to a “Darul Ifta’a” or Darul Qadha’a in your area.

جہزا بنتہ بجہاز وسلمہا ذٰلک لیس لہ الاسترداد منہا ولا لورثتہ بعدہ إن سلمہا ذٰلک في صحتہ؛ بل تختص بہ، وبہ یفتی، وکذا لو اشتراہ لہا في صغرہا۔ (الدر المختار ۴؍۳۰۶

بل کل أحد یعلم أن الجہاز للمرأۃ إذا طلقہا تأخذہ کلہ۔ (شامي ۴؍۳۱۱ زکریا

(مستفاد: فتاویٰ احیاء العلوم ۱؍۲۹۲، کفایت المفتی ۵؍۱۲۳)

قال اللٰہ تعالی: {فان خفتم ان لا یقیما حدود اللٰہ فلا جناح علیہما فیما افتدت بہٖ} [البقرۃ، جزء آیت: ۲۲۹]ویسقط المہر عنہ في الخلع؛ لأنہ مسقط۔ (طحطاوی علی الدر ۲؍۸۸) علی ما إذا کان النشوز منہا سواء کان منہ نشوزا أیضا أولا۔ (طحطاوي علی الدر ۱۸۸) لو جہز ابنتہ بجہاز أو سلمہا ذٰلک لیس لہ الاسترداد منہا ولا لورثتہ

والسلام​​

Question ID: 1438 Category: Marriage and Divorce