Fatwa ID: 04080
Answered by: Maulana Ishaaq Hussain
The question is with regards to a wife and husband, after a few accounts of the husband being abusive to the wife (physically and verbally) the wife has decided to terminate the marriage. Other crucial details are that the husband was involved in drugs, and other prohibited things, for example, there are information of the husband gambling and also allegedly attempting to have physical relations with other women and much more. In the three years of marriage, the wife has attempted to instill in her husband to perform prayers, fast, etc. But to no avail.
At the moment the wife had left the husband (going back to her country) as a temporary measure initially, however after much thought and deliberation she has decided to terminate the marriage. The reason for this is because although it has been just over a year with them separating, she has tried on many attempts to reconcile things between her and her husband/ (family too), however, 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 reconcile things. The dowry (mahr) of £17,075 has not been paid yet.
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, and what happens to the mahr? (and if they refuse to pay that too?)
بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم
In the name of Allah, the Most Gracious, the Most Merciful
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 a 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. Therefore, in this situation, the sister would not be able to do khula because the husband is not willing to accept it.
However, the sister may take her case to an Islamic court or a Shariah Council who will evaluate the arguments and evidence presented and then come to a verdict whether of separation or not which will be binding on all parties as in the case of the wife of Thabit (radiallahu anhu) at the time of the Prophet Sallallahu Alahi Wasalam. (Sunan Abi Dawood 914).
An annulment of marriage can be effected in any of the following situations:
- The husband is missing completely
- The husband is absent with no known whereabouts
- The husband is incapable of maintaining his wife
- The husband is unwilling to maintain his wife
- The husband oppresses the wife such that he does not fulfil her rights
- The husband is castrated
- The husband is impotent
- The husband is insane
- The husband is afflicted with leprosy or any other illness which makes living with him difficult
- The choice of an immature when he/she attains maturity
- Husband or wife become apostate
- Foster relationship which only becomes known after Nikah (The Complete System of Divorce p.213)
The fuqaha have written that if the husband oppresses the wife and makes her life difficult, then due to this she is forced to make Khula, the husband should not take anything from her. The wife should as a gesture on her part forgive the mahr. There should be no excess in Khula)
With regards to your question, whether the committee decides to annul the marriage or not, the husband will still have to pay the Mahr that was agreed upon.
If the husband does accept a Khula, then the wife may forgive the mahr, in this case, the husband will not have to pay mahr. (Fatawa Darul Uloom Deoband p 125 v 10)
Only Allah Knows Best
Written by Maulana Ishaaq Hussain
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham.