Khula

Can the wife without man permission  get talaq or khula from courts in pakistan.
When the husband is already fulfilling his duty as husband and as well as father.
 I paid all haq meher about 100000/ pakistani ruppees now I have a baby milk feeder and they want to take my baby against their wish but I am not ready because i want a future of my baby now if I ask more then haq meher as future of baby in their reply can i do it like i ask her give property to my baby(as in baby name) 

 

In the name of Allah, Most Compassionate, Most Merciful.

 

Answer

 

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 An Nisa: 20)

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 (if they agree upon it). (Hidaya, Vol 2, P404)

 

From the above it is clear that it is superior for you not to take more than you had given. However if you both can agree on an amount which may be of excess of what you had originally given her (due to your intention of safeguarding the future of your child) then it will be permissible.

 

As stated above khula can only be done with the agreement from both sides.  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 evidences presented and then come to a verdict which will be binding on all parties as in the case of the wife of Thabit (radiallahu anhu) at the time of the prophet (sallal lahu alayhi wa sallam) (Abu 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, Vol 2, P464). 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.

Only Allah knows best.

 

Sayeedur Rahman

 

Darul Ifta, Birmingham

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