Fatwa ID: 07315
Answered by: Alimah Shireen Mangera-Badat
Question:
I have read upon khula in the book Beheshti Zewar (Heavenly Ornaments).
It is said that when khula is being done, the request and reply to it has to be uttered in one place (or one sitting) only then does khula take effect.
1. For someone who is seeking khula with her spouse in a different country how will this take place? Will it have to be uttered on one phone call?
2. (Also, a question on the side, will it take place through text messages or will it have to be uttered by speech)
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Khula is a form of divorce initiated by the wife, where she offers compensation to the husband to release her from the marriage. According to Hanafi Fiqh, for Khula to be valid, it must be properly communicated and accepted.
In “Behishti Zewar,” it is mentioned that the request for Khula and its acceptance must be done in one place or one sitting for the Khula to take effect. This principle ensures clarity and mutual consent in the process.
Addressing Your Questions:
1. Khula with Spouse in a Different Country:
Telephone Communication: If the spouses are in different countries, the request and acceptance of Khula can be made over a phone call. Both parties need to clearly state and understand the terms of Khula during the conversation. 1Since both parties are communicating in real-time, it fulfills the requirement of being in “one sitting,” even though they are in different physical locations.
Modern Hanafi scholars agree that verbal communication via phone is acceptable as it maintains the immediate exchange required for Khula.
2. Khula through Text Messages:
Text Communication: According to traditional Hanafi Fiqh, written communication, including text messages, can be used to request and accept Khula, provided that the messages are clear and there is no ambiguity. Both parties must ensure that the communication reflects mutual consent and understanding of the terms.
The intention behind the written words is crucial. Both the request and acceptance must be explicit and intentional, it is advisable to ensure clarity and document the consent of both parties.2
Therefore, Yes, Khula can be effectively communicated and accepted via a single phone call, which is considered as one sitting according to Hanafi Fiqh.
Khula via Text Messages: Yes, Khula can be done through text messages, provided that both parties clearly state their intention and acceptance, and the communication is unambiguous.
1 from Al-Mabsut, vol. 6, p. 173 is:
“يجوز الخلع من قبل الحاكم وغير الحاكم لأنه عقد يعتمد بالكامل على التراضي المتبادل.”
2
بالاشارة والايماء وَالْكِتَابَة فبأيها طلق تطلق امْرَأَته
ص358 – كتاب النتف في الفتاوى للسغدي – طلاق الاخرس – المكتبة الشاملة
Only Allah knows best.
Written by Alimah Shireen Mangera-Badat
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
