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When is it permissible for khula? and what must a sister do?


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#1 Guest_AMEENAH2003_*

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Posted 01 January 2004 - 04:50 PM

                    As Salaam Alaikum,
My marriage not been good over 1 yr now, I cannot go on any longer with my husband.  I was told of khula, what is it? and what must a sister do for it?  I'm in unhappy :cry:  marriage where my husband does not respect me and I'm really do not have love for him anymore.  We argue all the time, he cusses and disregards my feelings.  I am by myself most of the time and I take care of myself as well.  Support, love and learning Islam is not present anymore.  My heart is broken and my trust in him is gone.  I've tried to work things out with him for the past couple yrs, but nothing seems to work.  Please help. sad.gif  :cry:
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#2 *Beauty*of*Islam*

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Posted 01 January 2004 - 06:16 PM

                    asalamu aleykum,
all i can say is ur in my prayers, luv jamila                    

#3 mariemuad

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Posted 01 January 2004 - 08:00 PM

                    Assalamu alaikum,

Moving this topic to Islamic Rulings insha Allah.

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Posted 02 January 2004 - 08:42 AM

                    Salam alikom

Question :


What is khula and what is the correct procedure? If the husband does not want to divorce the wife, can the divorce still happen? What about in societies like America, where women who don’t like their husbands (in some case, because the husbands are religious). The women think that they have the freedom that if they don’t like the men, they can divorce them.

Answer :

Praise be to Allaah.  

Khula’ means the separation of the wife in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the mahr which he gave to her, or more or less than that.

The basic principle concerning this is the verse in which Allaah says (interpretation of the meaning):

“And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)”

[al-Baqarah 2:229]

The evidence for that from the Sunnah is that the wife of Thaabit ibn Qays ibn Shammaas (may Allaah be pleased with him) came to the Prophet (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, I do not find any fault with Thaabit ibn Qays in his character or his religious commitment, but I do not want to commit any act of kufr after becoming a Muslim.” The Prophet (peace and blessings of Allaah be upon him) said to her, “Will you give back his garden?” Because he had given her a garden as her mahr. She said, “Yes.” The Prophet (peace and blessings of Allaah be upon him) said to Thaabit: “Take back your garden, and divorce her.”

(Narrated by al-Bukhaari, 5273).

From this case the scholars understood that if a woman cannot stay with her husband, then the judge should ask him to divorce her by khula’; indeed he should order him to do so.

With regard to the way in which it is done, the husband should take his payment or they should agree upon it, then he should say to her “faaraqtuki” (I separate from you) or “khaala’tuki (I let you go), or other such words.

Talaaq (i.e., divorce) is the right of the husband, and does not take place unless it is done by him, because the Prophet (peace and blessings of Allaah be upon him) said: “Talaaq is the right of the one who seizes the leg (i.e., consummates the marriage)” i.e., the husband. (Narrated by Ibn Maajah, 2081; classed as hasan by al-Albaani in Irwa’ al-Ghaleel, 2041).

Hence the scholars said that whoever is forced to divorce his wife by talaaq wrongfully, and divorces her under pressure, then his divorce is not valid. See al-Mughni, 10/352.

With regard to what you mention, that a woman in your country might arrange her own divorce through the man-made laws, if this is for a reason for which it is permissible to seek a divorce, such as disliking her husband, not being able to stay with him or disliking him because of his immoral ways and indulgence in  haraam actions, etc., there is nothing wrong with her seeking divorce, but in this case she should divorce him by khula’ and return to him the mahr that he gave to her.

But if she is seeking divorce for no reason, then that is not permissible and the court ruling on divorce in this case does not count for anything in terms of sharee’ah. The woman still remains the wife of the man. This gives rise to a new problem, which is that this woman is regarded as a divorcee in the eyes of the (man-made) law, and can re-marry after her ‘iddah ends, but in fact she is still a wife and not a divorcee.

Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allaah have mercy on him) was asked about a similar matter and said:

Now we have a problem. The fact that she is still married to him means that she cannot marry anyone else, but according to the court ruling she is apparently divorced from him, and when her ‘iddah ends she can re-marry. I think that the only way out of this problem is that good and righteous people should get involved in this matter, to bring about reconciliation between the man and his wife. Otherwise she has to give him some payment, so that it will be a proper shar’i khula’.

Liqa’ al-baab al-Maftooh by Shaykh Muhammad ibn ‘Uthaymeen, no. 54; 3/174.



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Posted 03 January 2004 - 06:34 PM

                    salaam,
who is the judge in this matter? who do I contact? what is the result if the husband leaves the house and never returns? or is no where to be found? how would this stll be acceptable? or is it?
salaam                    

#6 Paradise_lover

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Posted 03 January 2004 - 07:08 PM

                    Salam alikom

Fatawa Reference : ID #1512
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Question :
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuh! My question is about divorce. I’m looking for a proof inside the Qur’an or Sunnah that the nikkah is automatically divorced after a special time of separation? From example the husband left his family "6 months" ago and since that time the family didn’t get any message and he didn’t care for his family anyhow. How long the wife does has to wait until she can marry again? I’m looking forward to your kind answer. Assalamu Alaikum.
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Answer :
Answered by:
Sheikh Nâyif al-Hamad
Judge at al-Rimâh Court

I am not aware of any text in the Qur’ân or Sunnah that stipulates the period of time that the husband must be absent before the wife can seek a divorce or have the marriage annulled.

Scholars distinguish between two circumstances in which a man is absent. The first is when there is some form of communication between the husband and the wife or news of the husband reaches the wife. In this case, there is consensus that the woman cannot marry someone else unless she cannot be supported from the husband’s wealth. In this case she can demand her marriage be annulled on those grounds.

The second circumstance is where the husband is lost and no news of him is heard. There are two scenarios here. The first is where his journey was apparently safe and normal, like a business trip or travel for study or relaxation. In this case she remains his wife until is death is established. This is the opinion of `Alî, Abû Hanîfah, Shâfi`î in his later opinion, and Ahmad. Mâlik’s opinion – and Shâfi`îs older view – is that she should wait four years and then wait the `iddah of a widow (four months and ten days). Then she may marry someone else. They argue that if a woman can get out of a marriage because of her husband’s inability to support her or because of his inability to have sexual relations with her, then it follows that she should be able to do so in a situation where he could do neither. They back up their argument with the hadîth where `Umar ruled in this way and did not receive any objection for doing so from the other Companions.

The other circumstance is where his absence indicates that he died. Examples of this is where the man disappears from his family suddenly or goes out for prayer and never returns or goes to a nearby place to do something and is never heard from again. A better example is when his disappearance occurs in a dangerous place or a life threatening situation. In this case, Ahmad is of the opinion that she must wait four years and then observe the `iddah of the widow. Then she may marry someone else. This was the opinion of `Umar, `Uthmân, `Alî, Ibn `Abbâs, and Ibn Zubayr from the Companions. It is the opinion of Mâlik and al-Shâfi`î’s older opinion.

The sister facing this situation should go to an Islamic court or judge about her situation, since this is a matter that comes under juristic discretion (ijtihâd) and the ruling of a judge overrides the disagreement of the jurists on the matter. If the sister in question lives in an area without an Islamic court or judge, she must take her case before one of the Islamic centers that exist in her country to deal with her case.

And Allah knows best.  

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