Fatwa ID: 07634
Answered by: Mawlana Abdur rahman Mohammad
Question:
My wife handed me Khul’a papers yesterday which were issued from Jhelum court, Pakistan. According to the court papers, it was filed on 20/03/24 and the decision was made for dissolution in my absence on 10/09/24.
Prior to this, there was no document I have ever received nor informed in any way by the Jhelum district court via email, phone, or post. This is the first time I have heard about anything official regarding the Khul’a application. I have attached documents, please review them and guide me.
We got married in Lahore, Pakistan on 30/01/2005 and we live in North West England, UK.
My wife didn’t provide me with any documents before this or mention that she filed such a case. I have not been consulted and there is no mutual consent given by me. Can you please inform me of my Islamic right to contest this and is such a Khul’a application valid without my knowledge?
I want to reconcile with her and asked her to reconsider her decision and I have told her I am willing to work harder to resolve financial complaints. She said she might review within the Iddat period.
Is her khul’a valid? Is her sitting in Iddat at her brother’s house valid?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
May Allah grant you patience and ease during this challenging time. Regarding your situation, it is important to note that Pakistani courts generally adhere to Islamic principles and their decisions are often Shariah-compliant.
To fully understand the specifics of your case, it is necessary to review the court documents to understand the grounds for the divorce, the procedure followed, and all relevant details. From what you have described, this may be a case of Faskh (judicial annulment) rather than a Khula (mutual divorce).
Explanation of Faskh
To provide some context, Raddul Muhtaar clarifies the conditions under which a Faskh can be granted. In the case of a husband being present but refusing to provide for his wife or refusing to grant a divorce, some jurists allow a judge to intervene and separate the couple if the wife requests it, particularly if her situation is dire.
However, if the husband is absent, the case becomes more complex. The husband’s absence does not automatically prove that he is incapable of providing, so a judgment of separation would not be enforceable without evidence of the husband’s inability to fulfil his financial responsibilities.
Presence of the Husband:
For a Faskh to be valid on the basis of financial incapacity, the judge needs to determine the husband’s inability to provide, which generally requires the husband’s presence in court.
Judicial Discretion:
If the judge is from a school of thought that supports separation due to financial incapacity, this must be based on the judge’s assessment of the husband’s financial situation. If these conditions are not met, the Faskh could be considered invalid under Islamic law.
Enforceability:
Even if the judge issues a ruling, the enforceability of that ruling depends on the circumstances. If no clear basis for divorce is established (such as proven financial incapacity), the separation may not be valid.
Raddul Muhtaar states:
He said in Ghurar Al-Adhkar:
Know that our sheikhs considered it appropriate for the Hanafi judge to appoint a deputy from among those whose school of thought is to separate them if the husband is present and refuses to divorce. Because paying off a permanent need is not easy by borrowing, since it appears that she does not find anyone to lend her money, and the husband’s wealth is a suspicious matter, so separation is necessary if she requests it.
And if he is absent, they should not be separated, because his inability is not known during his absence. And if separation is ruled, its ruling is not enforceable, because there is no independent opinion [Mujtahad Fīh] on it, because the inability has not been proven.[1]
It was reported in Al-Bahr that the Sheikhs differed and that the correct view, as in Al-Dhakhirah, is that it is not enforceable due to the appearance of the risk of witnesses, as in Al-Imadiyyah and Al-Fath.
It was mentioned in Qada Al-Ashbah in the issues in which the judge’s ruling is not enforceable that one of them is the separation due to the inability to spend while absent – according to the correct view – not while present. End quote.[2]
The conclusion is that separation due to the inability to provide expenditure is permissible according to Al-Shafi’i whether the husband is present and similarly whether he is absent in generality, or unless there is evidence of his insolvency at this time, as you know from what we have quoted from al-Tuhfah. Our Sheikhs have made the first case a ruling that is subject to Ijtihad, so the judgment is enforced in it, but not in the second.[3]
The Complete System of Talaaq states:[4]
Annulment of Nikah and Its Reasons
An annulment of marriage can be effected in any of the under-mentioned situations. This Committee must pay careful consideration to these:
1. The husband is missing completely
2. The husband is absent but his whereabouts are unknown
3. The husband is incapable of maintaining his wife
4. The husband is unwilling to maintain the wife, notwithstanding his ability to do so
5. The husband oppresses the wife such that he does not fulfil her rights which have been bestowed to her by the Shariah
6. Husband is castrated
7. Husband is impotent
8. The husband becomes insane
9. The husband is afflicted with leprosy or any such ailment which makes living with him difficult
10. Where there is no congeniality in the marriage
11. The choice of an immature when he/she attains maturity
12. Husband or wife becomes Murtadd (renegade)
13. Foster a relationship which only becomes known after Nikah.
Conclusion
If the Faskh is based on financial incapacity or a valid reason for Faskh, the judge should have assessed your ability to provide and looked into your situation in detail. This typically requires your presence in court. If this process did not occur, the ruling may be considered invalid from an Islamic perspective. If the court followed the local law and issued a judgment, your wife would be considered divorced under Pakistani law even if she is not considered divorced Islamically.
Please review the court documents and contact the court regarding the details of your case. You may still be able to appeal the court’s decision if procedural errors occurred (such as not notifying you).
From an Islamic perspective, if the proper conditions for Faskh were not met, the dissolution could be challenged on Islamic grounds. It is also worth noting that even if the Faskh is deemed invalid in Islamic law, the court’s ruling might still be upheld legally, allowing your wife to remarry.
Only Allah knows best.
Answered by Mawlana Abdurrahman Mohammad
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
References:
1. قَالَ فِي غُرَرِ الْأَذْكَارِ: ثُمَّ اعْلَمْ أَنَّ مَشَايِخَنَا اسْتَحْسَنُوا أَنْ يُنَصِّبَ الْقَاضِي الْحَنَفِيُّ نَائِبًا مِمَّنْ مَذْهَبُهُ التَّفْرِيقُ بَيْنَهُمَا إذَا كَانَ الزَّوْجُ حَاضِرًا وَأَبَى عَنْ الطَّلَاقِ؛ لِأَنَّ دَفْعَ الْحَاجَةِ الدَّائِمَةِ لَا يَتَيَسَّرُ بِالِاسْتِدَانَةِ، إذْ الظَّاهِرُ أَنَّهَا لَا تَجِدُ مَنْ يُقْرِضُهَا وَغِنَى الزَّوْجِ مَآلًا أَمْرٌ مُتَوَهَّمٌ، فَالتَّفْرِيقُ ضَرُورِيٌّ إذَا طَلَبَتْهُ، وَإِنْ كَانَ غَائِبًا لَا يُفَرَّقُ؛ لِأَنَّ عَجْزَهُ غَيْرُ مَعْلُومٍ حَالَ غَيْبَتِهِ، وَإِنْ قُضِيَ بِالتَّفْرِيقِ لَا يَنْفُذُ قَضَاؤُهُ؛ لِأَنَّهُ لَيْسَ فِي مُجْتَهَدٍ فِيهِ؛ لِأَنَّ الْعَجْزَ لَمْ يَثْبُتْ. اهـ. (Radd Al-Muhtār, vol. 3, pg. 590, Darul Fikr Beirut via Shamela)
2. وَنُقِلَ فِي الْبَحْرِ اخْتِلَافُ الْمَشَايِخِ وَأَنَّ الصَّحِيحَ كَمَا فِي الذَّخِيرَةِ عَدَمُ النَّفَاذِ لِظُهُورِ مُجَازَفَةِ الشُّهُودِ كَمَا فِي الْعِمَادِيَّةِ وَالْفَتْحِ. وَذَكَرَ فِي قَضَاءِ الْأَشْبَاهِ فِي الْمَسَائِلِ الَّتِي لَا يَنْفُذُ فِيهَا قَضَاءُ الْقَاضِي أَنَّ مِنْهَا التَّفْرِيقَ لِلْعَجْزِ عَنْ الْإِنْفَاقِ غَائِبًا عَلَى الصَّحِيحِ لَا حَاضِرًا. اهـ (Radd Al-Muhtār, vol. 3, pg. 590, Darul Fikr Beirut via Shamela)
3. وَالْحَاصِلُ أَنَّ التَّفْرِيقَ بِالْعَجْزِ عَنْ النَّفَقَةِ جَائِزٌ عِنْدَ الشَّافِعِيِّ حَالَ حَضْرَةِ الزَّوْجِ وَكَذَا حَالَ غَيْبَتِهِ مُطْلَقًا أَوْ مَا لَمْ تَشْهَدْ بَيِّنَةٌ بِإِعْسَارِهِ الْآنَ كَمَا عَلِمْت مِمَّا نَقَلْنَاهُ عَنْ التُّحْفَةِ، وَالْحَالَةُ الْأُولَى جَعَلَهَا مَشَايِخُنَا حُكْمًا مُجْتَهَدًا فِيهِ فَيَنْفُذُ فِيهِ الْقَضَاءُ دُونَ الثَّانِيَةِ (Radd Al-Muhtār, vol. 3, pg. 590, Darul Fikr Beirut via Shamela)
4. The Complete System of Talaaq (pg 213-214)
