Sunday | 08 December 2019 | 11 Rabiul-Thani 1441
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Fatwa Answer

Question ID: 936 Category: Business Dealings
Khula

Salam alaikom Brother,
 
I spoke with you today evening about the incident of Khula.  I don't know where to start but basically I was born in Egypt, my wife is a US revert. She reverted 7 months before she knew me.  The point is we fought many times before, and I recognize that I have done many mistakes but Allah (SWT) knows that I tried my best to make her happy.  We have been married little over 2 years.  She got upset and left home, without me knowing that, 3 times to her friend in Dallas, TX.   I didn't know that she is there untill she called and told me that.  Anyhow, last time she left was on March 15th, 2011 and till now she is there.  After a couple of days from that date, she went to an imam at a mosque there, and asked him to give her khula.  I didn't know anything about that incident, as she just told me about it last night.  So I will be narrating what she told me happened that time.  She said the imam asked her why she asks for khula. she replied with a list of 4 things, then he kept asking her; are you sure, are you sure, while she is counting that list.  Then he said something in Arabic and asked her to repeat after him 3 times. And told her now you are divorced from your husband?!
 
The point is we started to talk again, and she wanted to come back.  She told me that she was angry when she went to the imam asking for that.  Now, as I said before, I didn't know anything about that incident, I haven't been notified that she will be meeting with an imam.  However, and I wanna say this to be clear with Allah (SWT) that she said she knew that she made it 3 times, and she had intention to do it that time, but she was angry.  That what she said.  Allah knows the best!
 
Last night she called me to tell me about that, so I was like crazy cause I couldn't believe what I heard.  I wanted to call an imam last night to ask if we are divorced, Gavin these information I just mentioned, cause I don't like to do something haram if I got her back and turned out she is not eligible for me anymore.  Cause it was late night 12am, I couldn't get anyone from USA, so I called an imam from East London Islamic Center, London, UK, and told him exactly what I wrote down her.  He said that should not be considered khula cause it happened without my permission, or knowledge, also, I wasn't notified about her meeting with the imam. Plus, they didn't sign up any paper.  The imam from London told me that is considered though violation/break of Nikhah contract.  Meaning that I can't get her back till I marry her again with another contract and 2 witnesses, and another dowry.  That is if we supposed that what happened actually is khula, but that imam doesn't see it like that, rather than violation/breaking the nikhah contract.  He said that is different from talak, as in case of the later, I can't get her back till she does marry someone else and they got divorced for somereason, other than making her eligible for me again, which is not the case anyhow. 
 
Now the current situation is that she needs to come back, the matter of fact, I booked her ticket to come back on this Thursday. InshaAllah we are welling to go for marriage counsil once she come back. inshAllah.  I asked her if she needs to come back or not, and she said yes.  I don't know what to do know?!  I asked her to come cause she is vulnerable with her christian female friend, and her Islam is not that strong, Allah knows the best, but from what I saw during that time, I can see that she is weak and need someone to help her to grow up her faith, even she can't see that right now.  And I admit, it was one of my mistakes that I pushed her too much to do stuff and she wasn't yet prepared emotionally to do so being a fresh convert.  but to be clear, she got into Islam after she studied Bible and Quraan and got convinced.   I didn't know her even that time.
 
I hope I have been able to convey the picture in much of prospective view, and I would appreciate please for sake of Allah (SWT) to tell me what exactly I should do to get her back. I don't care paying her another dowry, I just need her back cause I am afraid if she lost her faith in this dunya.  May Allah (SWT) protects us all and guide us the right path.
 
thank you for the time you took to read this, and I am looking forward to hearing from you st your earliest convenience.

 

الجواب وبالله التوفيق

 

As per your statement, your wife was issued a khul‘a without your agreement. If the matter is in fact how you described, the khul‘a will not be valid and she will still be considered to be in your marriage.

According to Islam (Shari ‘ah), khul‘a is when the wife offers the husband money in lieu of a talāq(Islamic divorce). For the validity of khul‘a, it is necessary that the husband agrees upon it. If the husband does not agree to the khul‘a, the divorce will not occur and the woman will still be considered to be the wife of the husband.

Hereunder are the relevant texts from the four schools of thought within Islamic Jurisprudence.

 

Hanafī School of Thought:

(والخلع جائز عند السلطان وغيره لأنه عقد يعتمد التراضي (الشرخسي: المبسوط 6/173 مطبعة السعادة مصر

“Khul‘ais permissible in the presence of a ruler as well as others because it is a transaction which is based on mutual agreement.” (Al-Sharakhsī. Al-Mabsūt. Matba‘ah Al-Sa‘ādah 1342. vol. 6 p. 173)

 

Shafi‘ī School of Thought:

(لأن الخلع طلاق فلا يكون لأحد أن يطلق عن أحد أب ولا سيد ولا ولي ولا سلطان (الامام الشافعي: كتاب الأم 5/200 مكتبة الكليات الأزهرية

“Becausekhul‘ais a talāq, none have the right to divorce on the behalf of another; not the father, nor a master, no a guardian, nor a ruler.” (Al-Shafi‘ī.Al-Umm.Maktaba al-Kuliyyāt al-Azhariyya 1381 vol. 5 p.200) 

(ولانه رفع عقد بالتراضي جعل لدفع الضرر فجاز من غير ضرر كالإقالة في البيع (الشيرازي: المهذب 2/71 عيسى البابي

“And also because it is dissolution of [a marriage] contract by mutual agreement to free oneself from harm, it is also permissible when there is no harm involved, similar to iqālah(returning) in a business transaction.” (Al-Shayrāzī. Al-Muhadhab. ‘Īsā al-Bābī 1381 vol. 2 p. 71)

 

Mālikī School of Thought:

وتجبر على الرجوع إليه إن لم يرد فراقها بخلع أو غيره (أبو الوليد الباجي: المنتقى 7/61

“And she will be compelled to return to the husband if he did not agree to separate from here through khul‘aor other means.” (Abū Walīd al-Bājī. Al-Muntaqā. Matba‘at al-Sa‘ādah vol. 7 p. 61)

 

وأما ما يرجع إلى الحال التي يجوز فيها الخلع من التي لا يجوز فإن الجمهور على أن الخلع جائز مع التراضي إذا لم يكن سبب رضاها بما تعطيه إضراره بها (ابن رشد: بداية المجتهد 2/68 مصطفى البابي)

“As for which situations in khul‘a are accepted and which situation are not accepted, the majority of then scholars are of the opinion that khul‘a is accepted with mutual agreement, on the condition that the reason for accepting of the money by the man is not to harm to the woman.” (Ibn Rushd. Bidāyat al-Mujtahid. Mustufā al-Bābī. 1379 vol. 2 p. 68)

Hanbalī School of Thought:

(ولأنه معاوضة فلم يفتقر إلى السلطان كالبيع والنكاحولأنه قطع عقد بالتراضي أشبه الإقالة (ابن قدامة: المغنى 7/52 دار المنار

“And because it (khul‘a) is contract of exchange, it does not require a ruler, just as business transaction and marriage. Also, because it is a termination of a contract with mutual agreement, it resembles iqālah(returning of goods).” (Ibn Qudāmah. Al-Mughnī. Dār al-Manār. 1368 vol. 7 p. 52) 

 

وفي تسميته سبحانه الخلع فدية دليل على أن فيه معنى المعاوضة ولهذا اعتبر فيه رضى الزوجين (ابن القيم: زاد المعاد 2/238

“And in Allāh Ta`ālā naming it fidyah(payoff), there is proof that it has the connotation of exchange. For this reason, the mutual agreement of the parties is made a condition in khul‘a.” (Ibn al-Qayyim. Zād al-Ma‘ād. Maymaniyyah 1324 vol. 2 p.238)

 

(Taken from Fiqhī Muqālātby Muftī Taqi Usmani)

Therefore, the khul‘a granted to your wife will not be considered valid, as you did not agree upon it. According to the laws of Islām, she is still considered to be your wife.

 

And Allāh Ta‘ālā Knows Best