Can a Muslim woman cancel the marriage in this situation

Fatwa ID: 01991

Answered by Mufti Mohammed Tosir Miah

Question:

The question is with regards to a wife and husband. Due to several different reasons, after three years of marriage, the wife has decided to terminate the marriage.
Some of these reasons are as follows: The husband has intermittently been abusive to the wife (physically and verbally). Other crucial details are that the husband was involved in the consumption of alcohol during the 3 years of marriage and other prohibited things such as gambling. During the latter part of the marriage, the husband began frequenting strip clubs and also allegedly attempting to have physical relations with other women and much more.
The husband is not practising. In the three years of marriage the wife has attempted to instil in her husband to perform prayers, fast, etc. But to no avail.

The present situation is, the wife has left the husband (going back to her country) as a temporary measure initially, but it has been 14 months since. After much thought and deliberation, and several failed attempts to salvage the marriage, she has decided to terminate the marriage. The main reason for this is because although it has been just over a year with them separating, her several attempts of reconciliation between herself and her husband (family too) have been unsuccessful. The husband and his family do not respond at all, to the extent that they also changed their telephone numbers so that the wife cannot get in contact to settle things.
The dowry (mehr) of £17,075 has not yet been paid. If the husband (and his family) refuse the right of a khula’ from the wife, what will be the next step that the wife should take? How does the wife obtain release from the marriage? Also, what happens to the mehr? (and if they refuse to pay that too?)

Answer:

Bismillah

A Khula is an agreement between the husband and wife to dissolve the contract of marriage in lieu of compensation paid by the wife.

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.

In regards to the compensation, if the husband was at fault (which lead to the khula), then it is undesirable for him to demand compensation in return for a divorce. Allah states in the Quran: “If you wish to marry another wife in place of the one you already have, do not take back anything of what you have given her even if it be a heap of gold…” (Surah Nisa v.20)

Furthermore, there is a statement from Imam Zuhri raḥimahullāh (may Allāh have mercy upon him) who says that a husband will be compelled to return the compensation he took from his wife if he had been at fault. (Musanaf Abdur Razzaq p.382 v.6)

However, if the husband did take compensation in the situation where he is at fault, it will be considered permissible, although Makruh. (Hidayah p.404 v.2) 

However, if the wife was at fault, then it is undesirable for the husband to take from her more than he had given her (dowry) although it is permissible to take extra. (Hidayah, Ibid)

An example of this can be found in a hadith where once Jamilah Bint Saluul came to the Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) wanting a khula from her husband. The Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) told her to return the garden which she took from her husband as the dowry, back to him. (Sunan Ibn Majah p.148 v.1)

However if the couple cannot come to an agreement the wife may take her case to an Islamic Shariah Council who will evaluate the arguments and evidences presented and then come to a verdict which will be binding on all parties as in the case of the wife of Thabit raḍyAllāhu 'anhu (may Allāh be pleased with him) at the time of the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him). (Sunan Abi Dawood )

An annulment of marriage can be effected in any of the following situations:

  1. The husband is missing completely
  2. The husband is absent with no known whereabouts
  3. The husband is incapable of maintaining his wife
  4. The husband is unwilling to maintain his wife
  5. The husband oppresses the wife such that he does not fulfil her rights
  6. The husband is castrated
  7. The husband is impotent
  8. The husband is insane
  9. The husband is afflicted with leprosy or any other illness which makes living with him difficult
  10. The choice of an immature when he/she attains maturity
  11. Husband or wife become apostate
  12. Foster relationship which only becomes known after Nikah. (The Complete System of Divorce p.213)

Contact Islamic Shariah Council, Dewsbury.

Maulana Yaqub Qasmi
Dewsbury, UK
Home/Office: +44 (1924) 464523

Regarding your situation, you should contact the aforementioned number and arrange a cancellation of the marriage. In a situation where the case is taken to the Islamic Shariah Council for a cancellation of the marriage you will not be required to give anything back to your husband.   

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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