Assalamu Alaykum wa Rahmatullah w Barakatuk, I am contacting you on behalf of my relative lady, She got married on Orfi Scheme a bout a year back, but several conflicts happened with the husband because of his carelessness. The lady is suffering with him, so she requested for divorce, but the man is refusing to do that, and even is refusing to talk with her or with any of her relatives she is strugling since 2 months, and now she wants to divorce him by "KHOLE". i need your kind fatwa on the status and what is the procedure to do kholei or divorce in the Orfi scheme, knowing that there is no chance for those couple to be together again.
Jazakum Allah Khair
In the name of Allah, the most Beneficent, the most Merciful.
To the best of my understanding an Urfi Marriage is a marriage where the man and woman get married secretly but in the presence of two witnesses, which could be two male or one male and two females. Such a nikah is considered valid. With this assumption we will now look at your question.
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. 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 evidences 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)
If the Urfi Marriage did not have any witnesses when it was conducted then such a nikah is considered in Islam to be “Nikah Faasid” (a corrupt or invalid marriage). In such a case you still need to get the marriage annulled by the Islamic Shariah Council. (See Fatawa Hindiyyah p.330 v.1)
Contact number of the Islamic Shariah Council in Dewsbury:
Maulana Yaqub Qasmi
Home/Office: +44 (1924) 464523
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham