Salamualikum
Quite Recently I have found out my that my husband and I have been black magic so that we dislike/argue each other and separate.
Our marriage has turned in to a misery; I want to know can I ask for khula in this situation or if my husband decides to give talaq is it valid. He says he cannot think straight but he is not insane.

In the name of Allah, the most Beneficent, the most Merciful.

Answer

Your question will be looked at in two parts. Firstly, we will look at the issue of giving divorce or talaq when being in the state of black magic and secondly, we will look at the issue of khula.

The jurists have categorised anger into three stages:

1. The initial stage of anger where ones mind is sound and fully in control of what one is saying. In such a case talaq will occur without any doubt.
2. Extreme anger to the point of insanity, where one is unaware where he is or what he is saying. In such a case talaq will not occur.
3. Finally that stage which is between the above two stages in that one was extremely angry but not to the point of insanity, and was aware of what one was saying. In this case also, talaq will also occur. (Raddul Muhtar p.452 v. 4)

With regards to your question if the anger does not reach the level of insanity as mentioned above therefore divorce is valid and will take place. In regards to black magic, if the black magic was so severe that a person became insane and mad then on the basis of insanity talaq will not occur. (Raddul Muhtar p.451 v.4) However, if the person’s state was not so severe then talaq will occur. (Raddul Muhtar p.438 v.4)

However in circumstances where it is claimed that the anger was such that a person lost his sanity or he had black magic done upon him, then in those occasion it is necessary that the person has previous medical history of insanity or has been diagnosed by the doctor of being of unstable mind, or has two male witness or one male and two female witnesses testifying that in fact on that occasion the person had in deed lost his sanity, then the divorce will not take effect. (Raddul Muhtar p.452 v. 4)

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.

However, you can take your 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:

1. The husband is missing completely
2. The husband is absent with no known whereabouts
3. The husband is incapable of maintaining his wife
4. The husband is unwilling to maintain his wife
5. The husband oppresses the wife such that he does not fulfil her rights
6. The husband is castrated
7. The husband is impotent
8. The husband is insane
9. The husband is afflicted with leprosy or any other illness which makes living with him difficult
10. The choice of an immature when he/she attains maturity
11. Husband or wife become apostate
12. Foster relationship which only becomes known after Nikah

(The complete System of Divorce p.213)

The conclusion we can come to is that if your husband is willing to enter into a khula agreement with you, then it will be valid, otherwise you can take your situation to an Islamic Sharee Council on the basis that the husband is not fulfilling your rights.

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Maulana Yaqub Qasmi
Dewsbury, UK
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Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.