Fatwa ID: 01990

Answered by Mufti Mohammed Tosir Miah

Question:

I have question about my son. He is 4 and half years old and his father is in Pakistan. He met his father almost 2 years ago when I was visiting Pakistan. Now my son's father again wants to meet him. I am trying to get khulaa from him. Last time during my visit he gave me really hard time and I escaped from his house with my son. Now I am afraid that he will again try to keep his son. Now what should I do. Should I allow him to visit his father in Pakistan because he can't come here or should I keep him here? As he is very small and father can't look after him.

Answer:

There are two issues which I am going to discuss here. Firstly, the issue of khula and secondly what you should do regarding your son in this situation.

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.

One other alternative is that you 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 second issue is what you should do in this situation. Remember for a wife to ask for a khula or separation without any reason is considered a grave sin as the following hadith quite clearly illustrates. 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)

However, if one is seeking separation due to one of the aforementioned reasons then it will be permissible.

Keeping all the above information in mind, if you are seeking khula from your husband for no reason or for a reason, but you are worried that the husband may kidnap or abduct the child, plus the security and the safety of the child in Pakistan with the father is risky then it is best that you don’t send your son to Pakistan to see him. 

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham