Is Husband’s Consent Needed for Khula?

CategoriesDivorce [536]

Fatwa ID: 04809 

Answered by: Mufti Mohammed Tosir Miah

 

Question

 

I have been divorced for over two years. Recently my attention has been drawn by The Islamic Channel about divorce, before I can state my question, I will briefly explain my previous situation.

According to this brief synopsis of my marriage, the Mufti Saab annulled my marriage as khula.

“I married three years ago, My ex-husband admitted to me that he has been having problems physically before marriage (i.e. impotency) and had told his mother that he didn’t want to marry as he could not have normal physical relations with his wife. His mother insisted that when he got married he would get better.

My mother then approached my ex-husbands’ mother to discuss the problem of him being impotent and that he had notified them of his problem, so why did they arrange the marriage without him being well. His sister admitted at the time that she had known about his problem and she said that she would help him get medication for his problem.

My ex-husband asked me to give him three months to see if he will get better, if not then I will be told to leave. (i told him this is in not your hands and Allah will cure you)

During these three months, he made excuses of not going to the doctors, saying he was embarrassed and refused to make appointments with any. He was then spoken to by my elder brother, who explained to him that I want the marriage to work and that I am patient so that you can get treatment for the problem. Again during this conversation, my ex-husband admitted to being impotent and that he had the problem before marriage and on the insistence of his mother he went ahead with it.

As time went by, he again asked me to give him another six months for getting treatment, and if he is unsuccessful, he will ask me to leave. (I again reassured him that it doesn’t matter)

During this period, he saw a private doctor; apparently, My ex-husband stated with no medical evidence provided to anyone, that he is medically fit. Yet he still remained impotent and the marriage not fulfilled. He was given a prescription for some tablets (Levitra tablets) to help him alleviate his problem. He continually made excuses for approximately three weeks to collect his medicine from the chemist, again stating he was embarrassed to go to the local chemist, he wasn’t well to go, he was tired, he would go to the city center chemist to get the tablets, etc.

Once he got the tablets, he was supposed to take them once a week, again he failed to take them as prescribed. He made excuses once again that he is tired, it’s too late now to take them, he will take them tomorrow, etc.

My Brother then invited his elder brother to ask him why his brother was not taking his medication as prescribed and seeking further medical help to combat his impotency problem. His elder brother reassured him that he would help his brother.

Three days later, I was told by my ex-husband that his family and he no longer want me to stay and that he was terminating the relationship. Although, I did state that I want the marriage to work and will wait and support him through this. He said that his family is insisted on him divorcing me. My ex-husband told her that I will get my sister or brother to drop me off or I can call your father to pick you up.  I rang my father to come and pick me up.

A few days later, with approximately 6 family members and my elder brother and father went to see my ex-husbands family for an explanation of why they had gone through with the marriage knowing that he was impotent and now was refusing to seek medical help and now had sent me home stating that no longer his family or he wanted to keep me.

No valid explanation was given apart from that he is medically fit but yet they could not provide a concrete answer of why the marriage within the last nine months had not been consummated. A few of the reasons that were given were that he has no sexual experience and that he has never had a girlfriend, thus not giving him any sexual experience! He may be suffering from psychological problems when his father passed away, thus causing him impotency problems.

It was admitted by my ex-husband and his family that he has impotency problems and suffers from premature ejaculation. His family again re-stated that they no longer wanted to keep me in the house and that they are ending the marriage.

I was asked to take my belongings, and give them the gold bangles (the gold jewelry was given to me by my ex-husband, on the second night of the wedding I gave my ex-sister in law to keep the gold jewelry in a safe place except for the bangles since I was wearing them)when I went with my uncle, who had my gold bangles (so that he can give return them) father, mother, and sister, I realized that most of my belongings including jewelry were taken by my ex-sister in law. When my mother inquired about this to my ex-husband’s brother, He said leave the belongings and you keep the jewelry. We returned home.”

My father received a phone call from my ex-husbands family that my ex-husband will not give me a divorce until the gold bangles are not returned. My father was shocked to hear that my ex-husband has openly stated he does not want to keep me as a wife and now he is not divorcing because of the gold bangles (which belong to me).  After a few weeks later, my father approached a mufti to come to a decision,  the mufti stated that my ex-husband wanted the gold bangles back. My father explained all the situation to the mufti but the mufti did not sort the matter, he was delaying this approach (by not resolving the matter, but increasing the days to make more money, I am sorry to say this).

After a few months, my father took the case back from this mufti and handed it to another respected mufti, who had multiple years of experience. He called me in and asked a few questions. He also said that bring the members of the community, in whose presence my ex-husband stated that he no longer wants to keep me as a wife or signed letters from them. my father presented the signed letters and one community member also went in person and explained the entire situation. The Mufti then annulled the marriage by a khula from me. I was sent a letter from the Mufti, the letter stated khula from me.


Now I have been divorced for over two years, I have been watching Islamic channels and the scholar mentioned that when a khula takes place the mufti must ask the husband and the wife, but in my case the mufti did not contact my ex-husband, except when he sent the khula letter, annulling the marriage. my questions are;

Why did not the mufti contact my ex-husband (although I have true faith that this mufti knows what he is doing and very learned person)

Did talaq e kinaya take place or not?

Finally, what happens to the haqq mehr, mufti again did not mention anything, (i kept the haqq mehr)


 

In the name of Allah, the Most Gracious, the Most Merciful

 

Answer

 

Firstly, I would like to distinguish a Khula from a separation of the marriage by an Islamic Sharia Council.  

 

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. 

 

However, if the couple cannot come to an agreement the wife 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 that 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).

 

If the wife went to a non-Islamic court and initiated divorce proceedings and the court sent the divorce documents to the husband, and he willingly, fully understanding the contents signed it, then the divorce will stand from an Islamic perspective also. (Raddul Muhtar p.464 v.2) However, if he did not sign any written document, but the court divorced him on behalf of his wife against his will, then according to Shariah this will not be classed as a valid divorce.

 

From the foregoing discussion, we can say that if your wife is initiating a Khula or separation from an Islamic court then whatever decision they come to will be binding for all parties to act upon. If the case is being referred to a non-Islamic Court, then without the husband’s consent such a separation or Khula will not be classified as divorce in the eyes of the Sharia.  The wife will be considered very sinful for her actions. 

 

The Prophet of Allah Sallallahu Alahi Wasalam said, “If a woman asks her husband for a divorce, for no reason, then the smell of paradise is forbidden for her” (Sunan Tirmizi p.226 v.1) 

 

From the aforementioned information, the upshot of it all is that if the scholar was doing a khula then he needed to get permission from the husband. However, if it was an Islamic Sharia Council then they could also annul the marriage without the permission of the husband as long as the effort was made in contacting him, but the husband failed to reply to their calls. 

 

An Islamic Shari Committee can annul a marriage if they have at least three just persons sitting therein.  They should all be knowledgeable and well versed in Shariah laws on marriage and divorce.  An annulment issued by such a committee is valid in the Shariah.   (The Complete System of Talaq p.211)

 

Regarding your situation, it seems to me that this scholar gave a ruling of khula without consent from your husband. If that truly was the case then you are still technically considered to be married to him. In spite of what I have said, from your question, there also seems to me that a Talaq Kinayah (an irrevocable divorce that will break the marriage straightaway) may have occurred if your husband said that he is ending or terminating the marriage.  

 

 

Only Allah Knows Best

Written by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham  

 

 

 

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