Fatwa ID: 08268
Answered by: Mawlana Abdurrahman Mohammad
Question:
I am asking this question on behalf of my sister and her marriage situation.
My sister’s name is Maryam. She married a Dutch citizen of Turkish origin named Ozan. Their marriage was conducted in August of last year in Turkey, and Maryam received part of her Mehr in gold, and the agreement was for her to receive an additional 71 grams of gold in the next three years. The hope was that she would move to the Netherlands after a few months to live in her husband’s house. So Ozan went back to the Netherlands and Maryam went back to Iran.
Unfortunately, a number of big arguments ensued over the following five months. Finally on the 20th January 2025, during an argument Maryam said that she would give the Mahr back to finish this. After a few days on the 19th of January, Ozan said that based on her request for divorce, he is divorcing her and he would appreciate if she returns the part of Mehr that he has given her.
I also talked to him and he said the separation is final and they were divorced.
However there are some questions to be answered: Does Maryam have to give the Mehr back in order to complete the divorce (as a Khula’), or is the marriage already over and it would only be good conduct for her to give the Mehr back? We ask this because (as per Maryam) for the past 5 months, Ozan did not pay Nafaqah for her and now if her marriage is already over he would need to additionally pay the Nafaqah during her ‘Iddah (plus the fact that she was in her monthly cycle when he granted her request for divorce). As mentioned above there was also a clause that Maryam would receive an additional 71 grams of gold in the next three years, none of which was paid. So Maryam is willing to do everything correctly, but wants to know the exact amount to be considered in this case.
Also, there was a clause in the marriage agreement that in case Ozan divorces Maryam, the Mehr would be increased by 285 grams of gold. In light of how he pronounced this divorce, does he have to pay this amount/give this gold and would this be factored in the calculations, or not?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
We need to determine the exact terms of the Nikah contract and the wording used for Khul’a or Talāq. Please have a Shariah council review your case or follow up with more details regarding your case. Here are some general guidelines.
What is Khul’ah
Khul’ah is when a wife requests a divorce from her husband in exchange of the entire or part of her Mahr.
Khul’ means removing the marriage property in exchange for something in the form of Khul’, as stated in Fath al-Qadir. It is correct with the wording of buying and selling, or in Persian [non-Arabic languages], as stated in al-Zahiriyah. (And its condition) is the condition of divorce. (And its ruling) is the occurrence of an irrevocable divorce, as stated in al-Tabyeen. And the intention of three is valid in it.[1]
What is Talāq ‘Ala Al-Māl
Talāq ‘Ala Al-Māl is when a husband divorces his wife in exchange of an amount of money
If he divorces her for money and she accepts, the divorce takes place and the money is necessary on her [to give], and the divorce is irrevocable. This is stated in Al-Hidayah.[2]
Your Situation
It is difficult to determine without knowing the wording whether we are dealing with a case of Khul’ah, Talāq ‘Ala Al-Māl, or normal Talāq with the husband demanding money afterward. If we are dealing with Khul’ah, the Mahr or whatever portion of it that was agreed on should be returned. If the entire Mahr was not given, she should return what she received and the rest of the Mahr required in Khula’h drops off. If this is a case of Talāq ‘Ala Al-Māl where a certain amount was set, she should give whatever amount they agreed on. In these two cases, the wording of transactions is applied so the offer (Ijāb) and acceptance (Qabōl) should take place within that setting (Majlis) otherwise the offer expires, like delaying the answer for a couple of days for example.
And among them is in place, which is the union of the setting (Ittihād Al-Majlis), so that the offer and acceptance are in one setting [i.e. time and place]. If they differ, it is not concluded.[3]
The offer of Khul’ah could be extended if the wife specifies it in the wording of the offer. If the offer expires and the husband gives a regular Talāq then demands payment, the Talāq has occurred and she is not obliged to provide payment. If the Talāq was a conditional statement where he says that my wife is divorced if she returns to me her Mahr or pays an X amount of money, the condition must be fulfilled for Talāq to take place.
Mahr Amount
The Mahr amount in these cases would be the increased amount, as the Mahr can vary based on a condition set in the contract.
And if he marries a woman for a thousand if he does not have a wife, and for two thousand if he has a wife, or he marries her for a thousand if he does not expel her from her country, and for two thousand if he expels her from it, and he marries her for a thousand if she is a freed slave, and for two thousand if she is an Arab, and the like, then there is no doubt that the marriage is permissible. As for the dowry (Mahr), the first condition [the first conditional statement from the two conditional statements] is permissible without disagreement. If it is fulfilled, then she is entitled to what he named based on that condition. If it is not fulfilled, then if it is contrary to that or he does something contrary to what he stipulated, then she is entitled to a dowry equal to that of her peers (Mahr Mithl), not less than the minimum and not more than the maximum. This is the opinion of Abu Hanifah RA. Abu Yusuf and Muhammad RA said: Both conditions are permissible, as stated in Al-Bada’i’. If he marries her for two thousand if she is beautiful and for one thousand if she is ugly, it is valid. Both conditions [conditional statements] are permissible without disagreement, as stated in Al-Khulasah.[4]
If your case is Khul’ah or Talāq ‘Ala Al-Māl where the return amount is fixed and unrelated to the Mahr amount, that fixed amount is necessary. If the return amount is less than the Mahr, he should pay you the remaining amount. In Khul’ah:
If he divorced her in exchange for her dowry, then if the woman had been consummated with and she had received her dowry, the husband may take back her dowry. If it had not been received, the entire dowry is dropped from the husband.[5]
If this is a case of normal Talāq, he should pay you full Mahr if he had relations with you or Khalwah Saheehah was established (i.e. husband and wife were alone without the presence of a third party and were able to have relations). If not, then half of the Mahr is necessary.
Amount in Khul’ah
Fatawa Hindiyyah states:
If the rebellion [fault] is on the part of the husband, then it is not permissible for him to take anything from the compensation for the divorce, and this is the ruling of religiosity/piety. If he takes it, then it is permissible according to the ruling and is binding, such that she does not have the right to take it back. This is in Al-Bada’i’.
If the rebellion [fault] was on her part, we dislike him taking more than what he gave her as a dowry, but despite this, it is permissible to take the excess in Qadā’. This is in Qhāyat Al-Bayān.[6]
Demanding Nafaqah Payments After Divorce
It is incorrect to demand past Nafaqah payments without the verdict of Qādi (Islamic judge):
(His statement: “And the Nafaqah does not become a debt, etc.”) That is, if he did not spend on her because he was absent from her or he was present and refused, then he is not required to pay it, rather it is dropped with the passage of time.[7]
Only Allah (عَزَّ وَ جَلَّ) knows best.
Written by Mawlana Abdurrahman Mohammad
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
References:
[1] خُلْعُ إزَالَةُ مِلْكِ النِّكَاحِ بِبَدَلٍ بِلَفْظِ الْخُلْعِ كَذَا فِي فَتْحِ الْقَدِيرِ وَقَدْ يَصِحُّ بِلَفْظِ الْبَيْعِ وَالشِّرَاءِ وَقَدْ يَكُونُ بِالْفَارِسِيَّةِ كَذَا فِي الظَّهِيرِيَّةِ
(وَشَرْطُهُ) شَرْطُ الطَّلَاقِ
(وَحُكْمُهُ) وُقُوعُ الطَّلَاقِ الْبَائِنِ كَذَا فِي التَّبْيِينِ.
وَتَصِحُّ نِيَّةُ الثَّلَاثِ فِيهِ.
(Al-Fatāwā Al-Hindiyyah, vol. 1, pg. 488, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
[2] إنْ طَلَّقَهَا عَلَى مَالٍ فَقَبِلَتْ وَقَعَ الطَّلَاقُ وَلَزِمَهَا الْمَالُ وَكَانَ الطَّلَاقُ بَائِنًا كَذَا فِي الْهِدَايَةِ.
(Al-Fatāwā Al-Hindiyyah, vol. 1, pg. 495, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
[3] وَمِنْهَا فِي الْمَكَانِ وَهُوَ اتِّحَادُ الْمَجْلِسِ بِأَنْ كَانَ الْإِيجَابُ وَالْقَبُولُ فِي مَجْلِسٍ وَاحِدٍ فَإِنْ اخْتَلَفَ لَا يَنْعَقِدُ
(Al-Fatāwā Al-Hindiyyah, vol. 3, pg. 3, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
[4] وَلَوْ تَزَوَّجَهَا عَلَى أَلْفٍ حَالَّةٍ أَوْ عَلَى أَلْفٍ إلَى سَنَةٍ فَعِنْدَ أَبِي حَنِيفَةَ – رَحِمَهُ اللَّهُ تَعَالَى – يُحَكَّمُ مَهْرُ الْمِثْلِ فَإِنْ كَانَ مَهْرُ مِثْلِهَا أَلْفًا أَوْ أَكْثَرَ لَهَا أَلْفٌ حَالَّةٌ، وَإِنْ كَانَ أَقَلَّ مِنْ الْأَلْفِ لَهَا الْأَلْفُ إلَى سَنَةٍ وَلَوْ تَزَوَّجَهَا عَلَى أَلْفٍ حَالَّةٍ أَوْ عَلَى أَلْفَيْنِ إلَى سَنَةٍ فَعِنْدَ أَبِي حَنِيفَةَ – رَحِمَهُ اللَّهُ تَعَالَى – إنْ كَانَ مَهْرُ مِثْلِهَا أَلْفَيْ دِرْهَمٍ أَوْ أَكْثَرَ؛ فَلَهَا الْخِيَارُ إنْ شَاءَتْ أَخَذَتْ أَلْفَيْ دِرْهَمٍ إلَى سَنَةٍ، وَإِنْ شَاءَتْ أَخَذَتْ أَلْفًا حَالَّةً، وَإِنْ كَانَ مَهْرُ مِثْلِهَا أَقَلَّ مِنْ الْأَلْفِ فَالْخِيَارُ لَهُ يُعْطِيهَا أَيَّ الْمَالَيْنِ شَاءَ، وَإِنْ كَانَ مَهْرُ مِثْلِهَا أَكْثَرَ مِنْ أَلْفٍ وَأَقَلَّ مِنْ أَلْفَيْنِ فَلَهَا مَهْرُ مِثْلِهَا عِنْدَ أَبِي حَنِيفَةَ – رَحِمَهُ اللَّهُ تَعَالَى -، كَذَا فِي الْكَافِي
(Al-Fatāwā Al-Hindiyyah, vol. 1, pg. 308, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
[5] إنْ خَالَعَهَا عَلَى مَهْرِهَا فَإِنْ كَانَتْ الْمَرْأَةُ مَدْخُولًا بِهَا وَقَدْ قَبَضَتْ مَهْرَهَا يُرْجِعُ الزَّوْجُ عَلَيْهَا بِمَهْرِهَا وَإِنْ لَمْ يَكُنْ مَقْبُوضًا سَقَطَ عَنْ الزَّوْجِ جَمِيعُ الْمَهْرِ وَلَا يَتَّبِعُ أَحَدُهُمَا صَاحِبَهُ بِشَيْءٍ وَإِنْ لَمْ تَكُنْ مَدْخُولًا بِهَا فَإِنْ كَانَتْ قَبَضَتْ مَهْرَهَا وَهُوَ أَلْفُ دِرْهَمٍ رَجَعَ الزَّوْجُ عَلَيْهَا فِي الِاسْتِحْسَانِ بِأَلْفٍ وَإِنْ لَمْ تَكُنْ قَبَضَتْ فِي الِاسْتِحْسَانِ يَسْقُطُ الْمَهْرُ عَنْ الزَّوْجِ وَلَا يُرْجِعُ عَلَيْهَا بِشَيْءٍ
(Al-Fatāwā Al-Hindiyyah, vol. 1, pg. 489, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
[6] إنْ كَانَ النُّشُوزُ مِنْ قِبَلِ الزَّوْجِ فَلَا يَحِلُّ لَهُ أَخْذُ شَيْءٍ مِنْ الْعِوَضِ عَلَى الْخُلْعِ وَهَذَا حُكْمُ الدِّيَانَةِ فَإِنْ أَخَذَ جَازَ ذَلِكَ فِي الْحُكْمُ وَلَزِمَ حَتَّى لَا تَمْلِكَ اسْتِرْدَادَهُ كَذَا فِي الْبَدَائِعِ. وَإِنْ كَانَ النُّشُوزُ مِنْ قِبَلِهَا كَرِهْنَا لَهُ أَنْ يَأْخُذَ أَكْثَرَ مِمَّا أَعْطَاهَا مِنْ الْمَهْرِ وَلَكِنْ مَعَ هَذَا يَجُوزُ أَخْذُ الزِّيَادَةِ فِي الْقَضَاءِ كَذَا فِي غَايَةِ الْبَيَانِ.
(Al-Fatāwā Al-Hindiyyah, vol. 1, pg. 488, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
[7] (قَوْلُهُ وَالنَّفَقَةُ لَا تَصِيرُ دَيْنًا إلَخْ) أَيْ إذَا لَمْ يُنْفِقْ عَلَيْهَا بِأَنْ غَابَ عَنْهَا أَوْ كَانَ حَاضِرًا فَامْتَنَعَ فَلَا يُطَالَبُ بِهَا بَلْ تَسْقُطُ بِمُضِيِّ الْمُدَّةِ.
(Radd Al-Muhtār, vol. 3, pg. 594, Darul Fikr Beirut)
