Fatwa ID: 01483

Answered by Mufti Mohammed Tosir Miah

Question:

I got married 2 years back and I've daughter who is one year old now. My wife has applied for Khula (Divorce) in local Jamat (Mosque). She has mentioned in petition that she was not happy even for single movement in her married life and she went through lots of torture and harrasment. Also she mentioned that I've illegal relationship with my sister-in-law (elder brother's wife).

We had 3 meetings in local Jamat (Mosque) related to this issue and my wife was not able to provide a single instance to proove her allegations on me. For most of the questions she and her family not able to answer instead of keeping silence.

Allah Subahnavatala knows very well that how me and my family treated her and how we taken care of her each and every requirement. First of all she made false allegations on me and majorly she lied in the house of Allah (Mosque) for which Allah will provide her with Ajar. Jamat tried lot to make her understand but she was not ready to listen anything except getting Khula. My question here is, In mehar I gave 16 grams of gold and along with that around 200 grams of gold jewelleries were given at the time of marriage to her. I need those for the girl who’s going to be part of my life after Khula, considering the current situation I don’t want to give those to the girl who doesn't want to live with me. Can I take back those jewels along with Mehar.

I got some house hold goods from my in-laws at the time of marriage, do I have to return those to my wife.

Answer:

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

A 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 Nisa v.20

Furthermore, there is a statement from Imam Zuhri who says that a husband will be compelled to return the compensation he took from his wife if he had been at fault. (Musanaf Abdur Razzaq p.382 v.6)

However, if the husband did take compensation in the situation where he is at fault, it will be considered permissible, although Makruh. (Hidayah p.404 v.2)

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. (Hidayah, Ibid)

An example of this can be found in a hadith where once Jamilah Bint Saluul came to the Prophet of Allah wanting a khula from her husband. The Prophet of Allah told her to return the garden which she took from her husband as the dowry, back to him. (Sunan Ibn Majah p.148 v.1)

Regarding your question on household goods and whether you will be required to return it back to your wife after the imminent khula depends on urf (custom) and on what you’re in laws intended. If it was given by the in laws to with the intention of making you the owner (tamleek) then it will not be necessary for you to return the gift at the time of khula. If it was given with a clear statement that it must be returned back then that would have to be returned at the time of the separation. (See Fatawa Rahimiyah p.236 v.8)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.