Fatwa ID: 02181

Answered by Mufti Mohammed Tosir Miah

Question:

Wife initiating a Khula without any reason

Answer:

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 if the couple cannot come to an agreement the wife may take her case to an Islamic court or a Shariah Council who will evaluate the arguments and evidences presented and then come to a verdict which will be binding on all parties as in the case of the wife of Thabit at the time of the Prophet . (Sunan Abi Dawood 914).

If the wife went to a non-Islamic court and initiated divorce proceedings and the court sent the divorce documents to the husband, and he willingly, fully understanding the contents signed it, then the divorce will stand from an Islamic perspective also. (Raddul Muhtar p.464 v.2) However, if he did not sign any written document, but the court divorced him on behalf of his wife against his will, then according to Shariah this will not be classed as a valid divorce.

From the foregoing discussion we can say that if your wife is initiating a Khula or a separation from an Islamic court then whatever decision they come to will be binding for all parties to act upon. If the case is being referred to a non Islamic Court, then without the husbands consent such a separation or Khula will not be classified as divorce in the eyes of the Sharia.  The wife will be considered very sinful for her actions.

The Prophet of Allah  said, "If a women asks her husband for a divorce, for no reason, then the smell of paradise is forbidden for her" (Sunan Tirmizi p.226 v.1)

If the case does go to an Islamic Sharia Court and they grant the Khula the rights of the children should not be forgotten. Each party should not prevent the other from visiting and seeing the children.  

At the time of The Prophet of Allah a woman came to him and said; “ O’ Prophet of Allah, for this son of mine my womb was a plate, my lap was a resting place and my breasts a means for him to quench his thirst, and now his father wants to take him away from me. So the Prophet of Allah said “You have more right over him until you get married.” (Sunan Abu Dawud)

If the separation takes place between couples that have young children, the ruling is as follows;

The mother has a right of custody for a boy until the child is capable of taking physical care of himself, for instance the child should be able to feed himself and go to the toilet by himself etc…This is approximately at seven years old, and the fatwa has been issued on this age. In case of a girl, the mother has custody for her until she has reached the age of puberty, which has been declared at nine years old. (Raddul-Muhtar p.252-265 v.5, Ahsanul Fatwa p458-459v.5)

It should also be borne in mind that the boy remains in his father’s custody until puberty, at which point he has a choice to whom he wants to live with or perhaps he may wish to live by himself. The girl on the other hand will remain with the father until she gets married. (Fatawa Hindiyyah p542 v.1)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham