MARRIAGE IN ISLAM

MARRIAGE IN ISLAM

Abdur-Rahman Abdul-Khaliq

A Daar of Islamic Heritage Publication

Chapter 11: What Annuls Marriage Contracts (Al-Khul)

We talked about divorce and death and the rights and obligations that will arise from each case. We explained with some detail the rules of valid divorce and stated that the man has the right to divorce his wife and that he must adhere by the rules and obligations that will arise from divorce. Now, a question may arise, "Does Islam give the woman the right to seek to end her marriage (seek Khul)?" The answer to this question is "yes," but there are certain rules and restricts that must first be applied:

1. If the wife seeks to end her marriage to her husband, that is, if she seeks Khul, she must provide a valid reason for such a request. Al-Bukhari and An-Nasaii reported that ibn Abbas said, "The wife of Thabit ibn Qays ibn Shmmas came to the Messenger of Allah and said, "O Messenger of Allah! I do not accuse him (meaning Thabit, her husband) of bad conduct or being bad in the religion. However, I hate acts of disbelief after (I accepted) Islam (meaning she hates to mistreat him)." He said, "Will you return his garden to him (the Mahr that he gave her)?" She said, "Yes." The Messenger of Allah then said to Thabit, "Take the garden and divorce her once." This is proof that the wife can seek divorce from her husband, who is good both in his conduct and in the religion, because she hates him for some valid reason.

2. In the case of Khul, the husband can take back all the Mahr that he gave his wife, as is evident by the Prophet asking Thabit's wife if she would return his garden to him. Also, Allah said, what translated means, "And it is not lawful for you (men) to take back any of your Mahr (from your wives) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah, then there is no sin for either of them if she gives back (the Mahr or part of it) for her Khul (divorce). These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are unjust (or the wrongdoers, etc.) Surah Al-Baqarah 2:229

"There is no sin for either of them if she gives back (the Mahr or part of it)" means that if the woman seeks divorce, she is allowed to do so on the condition that she gives back the Mahr. In such cases, the husband will be compelled to accept this offer, if the reason his wife gives is that she will not be able to treat him the way Allah ordained. Indeed, her inability to preserve the rights of her husband allows her to seek a way out of this marriage.

3. What the wife pays back to her husband in return for her release from marriage bonds and obligations must not exceed the Mahr itself. Ad-Daraqhutni reported that Abu Az-Zubayr narrated that the Messenger of Allah said to the wife of Qays, "Are you willing to give him back his garden that he gave you (as a Mahr)?" She said, "Yes, and more." He said, "As for the increase, no. But his garden only?" She said, "Yes." Some scholars, yet, said that the husband is allowed to take more than the Mahr from his wife in return for divorce. They used the following Ayah as evidence, "There is no sin for either of them if she gives back (the Mahr or part of it). Surah Al-Baqarah 2:229. However, this understanding is incorrect for two reasons: First, the Prophet said, "As for the increase, no." Second, this is an unjust ruling for the wife who does not want to continue to be married to her husband whom she is unable to fulfill his obligations and rights on her. What provides justice for her is to only give back what he gave her as a Mahr with which their married life together started. Why should the man ask for more than this and treat his wife as if she is committing a crime when she seeks Al-Khul from him?

4. Will the husband be compelled to divorce his wife if she seeks Al-Khul? If the wife can no longer fulfill the rights of her husband on her because she hates him, then her husband will be forced to grant her a divorce, whether he likes her or is only refusing to divorce her to punish her. The Messenger of Allah did not even hear Qay's side of the story. He said to him, "Take the garden and divorce her once." This is proof that the husband is forced to divorce his wife in such cases. Also, this proof is why we do not agree with the opinion of many scholars of Fiqh that, in such cases, the wife is forced to stay with her husband. These Fiqh scholars treat married life as if it is just a matter of providing for food and life expenses for the wife. There are more important aspects of married life, such as the harmony that should be present to ensure a successful marriage. Also, the wife may discover that her husband turned out not to be the man whom she thought he is, as is the case with the wife of Qays. One day, she saw her husband coming back with some of his friends and noticed that he was the shortest and the ugliest among them. She disliked him for this and the Messenger of Allah granted her divorce for this reason. This is why we stated that the opinion taken by some scholars of Fiqh, that the wife is forced to stay with her husband whom she hates, is incorrect because marriage is much more than providing for the wife's life needs. It is an act of transgression if a woman is forced to live with a man whom she dislikes, because marriage is a contract that is built on mutual agreement and cannot be built on force. A man who seeks the help of the police to bring back his wife by force (as in the case in some Muslim countries) is unjust in my judgment. Again, this is why we say that such opinion expressed by some scholars of Fiqh is invalid and incorrect; it is not derived from the Quran or Sunnah. Indeed, Allah gave the husband the right to advise his wife if she commits mistakes, or to desert her bed for a while and then even strike her mildy, as a means of discipline. This is different from forcing her to stay in a marriage that she hates. The later is revenge, and there is a big difference between revenge and discipline.

The rules of Al-Khul that we approvingly stated are also the opinions of scholars of Fiqh who correctly derived their rulings depending on the Quran and Sunnah and not on tradition. Imam Ash-Shawkani said, after mentioning the Hadiths that we mentioned, that the disappearance of harmony in marriage is reason enough to grant the wife a divorce if she seeks it. He also stated that the order of the Prophet to Qays to take back his garden and divorce his wife, was an obligation and that there is no proof to the contrary. He also refuted the opinion that if the wife said that she hates her husband or that marital problems cause her to ask for divorce, that the man must also feel the same if the divorce is to be granted. Ash-Shawkani said, "The Prophet did not ask Thabit if he hated her (his wife) too when she said that she hated him."

We believe that there is no doubt that the opinion Ash-Shawkani took provides justice for the wife. Allah gave the wife the right to be justly dealt with, "And they (women) have rights (over their husbands as regards living expenses, etc.) similar (to those of their husbands) over them (as regards obedience and respect, etc.) to what is reasonable, but men have a degree (of responsibility) over them." Surah Al-Baqarah 2:228

In short, the man has the right to divorce his wife, and also the wife has the right to seek divorce from her husband if she fears that she will not be able to preserve his rights on her.

Imam ibn Al-Qayyim said, "Some people, isolated from the mainstream (by choosing invalid options), defied the texts of the Quran and Sunnah when they disallowed Al-Khul. This Ayah proves that the Muslim leader and others (such as the scholars) are allowed to conduct Khul. Some, from among the four Imams, said that this can be done only with the leader's permission, but the majority (of scholars) disapproved of their opinion."

5. When completed, Al-Khul is considered a final divorce and the husband has no right to take back his wife during her iddah. However, he can later remarry her with a new marriage contract and a new Mahr, if she agrees.

6. The woman who seeks and gets Al-Khul has to observe the Iddah of one period only, not three as in normal divorces. Ar-Rubayy bint Mu'awwith said, "The Messenger of Allah ordered a woman who sought (and was granted) Al-Khul from her husband to wait for one period and then leave to her family's." (An-Nasaii)

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VALID REASONS FOR AL-KHUL

Aboo Tasneem Dawud Adib

These are SOME of the reasons the Ulamaa say women may ask for a khul'a from their husbands:

If a woman dislikes her husband’s treatment of her for example, he is over-strict, hot-tempered or easily provoked, or gets angry a lot, or criticizes her and rebukes her for the slightest mistake or shortcoming, then she has the right of khula’ [female-instigated divorce].

If she dislikes his physical appearance because of some deformity or ugliness, or because one of his faculties is missing, she has the right of khula’.

If he is lacking in religious commitment for example, he doesn’t pray, or neglects to pray in jamaa’ah, or does not fast in Ramadaan without a proper excuse, or he goes to parties where haraam things are done, such as fornication, drinking alcohol and listening to singing and musical instruments, etc. she has the right of khul.

If he deprives of her of her rights of spending on her maintenance, clothing and other essential needs, when he is able to provide these things, then she has the right to ask for khula’.

If he does not give her her conjugal rights and thus keep her chaste because he is impotent (i.e. unable to have intercourse), or because he does not like her, or he prefers someone else, or he is unfair in the division of his time [i.e., among co-wives], then she has the right to ask for khula’. And Allaah knows best.

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IMPOTENCE PERMITS ONE TO SEEK A DIVORCE

Shaykh Ibn 'Uthaymeen

Question: A woman was married for many years and did not have any children. After an examination, it was determined that the problem was from her husband and it would be impossible for the two of them to have children. Does she have the right to seek a divorce?

Response: That woman has a right to ask for divorce from her husband if it is shown that the infertility problem is from him alone. If he divorces her, that is final. If he does not divorce her, a judge may dissolve her marriage. This is because the woman has the right to have children and many women do not even get married except to have children. If the man she is married to is impotent or sterile, she has the right to ask for divorce and have her marriage dissolved. This is the stronger opinion among the scholars.

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MY HUSBAND CURSES AND ABUSES ME

Shaykh Ibn Baaz

Question: What is the legal ruling concerning seeking a divorce when proper relations become an impossibility? This is due to the following reasons: First, my husband is ignorant and he does not recognise any rights for me. He curses me and my father and calls us Jews, Christians and Shee'ah. However, I was patient with his evil manners because of my child. But when I became ill with arthritis, I no longer had the ability to bear his behaviour. I began to hate him a great deal, to the point that I cannot stand even talking to him. I asked him for a divorce but he refused. Now I have been living with him for six years with my children and he treats me like a divorced woman or a woman who is not related to him. But he still refuses divorce. I beg for your answer to my question.

Response: If the situation is as you have just described, there is nothing wrong in seeking divorce. There is no harm also in you ransoming yourself by paying him some wealth in order for him to divorce you. This is due to his improper behaviour and wronging you by evil speech. If you think it feasible, for the sake of your children and your need for his maintenance as well as the children's, to be patient and advise him to behave properly and ask Allaah to guide him, there is great reward and a good end. We ask Allaah to guide him and make him firm in his religion.This answer is assuming that he prays and does not curse the religion. If he does not pray or if he curses the religion, he is a disbeliever. Then it is not permissible for you to stay with him or allow him control over you. This is because cursing and ridiculing the religion is disbelief and straying. It is apostasy from Islaam according to the consensus of the scholars. This is based on Allaah's statement:{Say: Was it Allaah, and His signs and His Messenger that you were mocking? Make no excuse! You have disbelieved after you had believed}, [Soorah at-Towbah, Aayah 65-66]. Also, abandoning the prayer is a greater form of disbelief, even if a person does not deny its obligation, according to the stronger opinion among the scholars. This is based on what has been confirmed from the Prophet (saws) in Saheeh Muslim from Jabir ibn 'Abdullaah that the Prophet (saws) said: ((Between a man and disbelief and polytheism is the abandoning of the prayer)).Also, Imaam Ahmad and the compilers of the Sunan recorded with a Saheeh chain from Buraydah ibn al-Hasib that the Prophet (saws) said: ((The covenant between us and them is the prayer. Whoever abandons it has committed disbelief)).There are also other evidences from the Qur.aan and Sunnah besides what we have mentioned.

HUSBAND'S REFUSAL TO DIVORCE

Adil Salahi

Question: After a few months of marriage, I realized that every thing was going wrong, and we were having serious problems. I asked my husband to divorce me, but he has not responded. We are living in two different countries: he lives in India, his country, and I live in the US where, I am a citizen. How can I ask for khula’; if he refuses to divorce me?

Response: Islam allows the dissolution of marriage at the request of the wife in two ways: a divorce ordered by the judge if she proves that she is being subjected to harm in her marriage and khula’, which does not require any proof.The latter does not need to have any particular reason to be freed of her marriage bond. Khula’ is a termination of the marriage contract at the woman’s request because she feels that her interests lie elsewhere. Since in Islamic marriage the husband bears more of the cost, the woman is required to refund to her husband all the dower he had paid her at the time of marriage.On the other hand, divorce preserves the wife’s right that she is subjected to harm in her marriage for a judge to order her divorce.You need to study your situation carefully to determine whether you can resort to either option to terminate your marriage. If your husband has abandoned you to live in his home country, and he does not support you, you can also apply for divorce. On the other hand, you might have been the one to choose to live apart. Your husband might be willing to take you if you would agree to live with him in his own country. In this case, your living apart would not be a valid reason for divorce at your request.Since both of you are living in countries where the law is different from Islamic law, it is much better that you come to an agreement on your future relationship. What you have to do is to try to resolve the matter amicably. You should write to your husband asking him to dissolve the marriage in a proper Islamic way.If he refuses or turns a deaf ear, you write to him again saying that he is forcing you to resort to the American law for a termination of the marriage, and that you consider any nullification of the marriage by an American court to be a khula’. I hope that he will save you asking this final resort by being cooperative and settling the matter in an amicable way.

ILL-TREATMENT AS THE BASIS FOR DIVORCE

Adil Salahi

Question: After one and a half years of being married, a woman obtained a ruling from an Islamic court nullifying her marriage. The basis of the ruling was the ill-treatment she received from her husband who used to beat her up and demand money from her. Her former husband was sent several notices with at least one of these notices published in the local paper, but he failed to appear in court. The court then granted her the nullification. The woman is now married to another man, but recently that husband was told by a scholar that such a Khula is not valid, without the consent of the first husband, which means that the woman is still married to the first husband and her second marriage is null and void. That caused the couple no end of distress, particularly since they have had a child recently. Please comment.

Response: Sometimes I get very angry when I receive a question like this. My anger is not directed at the parties concerned but at the outsider who voices an opinion which has a far-reaching effect on the lives of several people without paying due regard to the circumstances of the case or studying the problem in depth.The reader speaks of a scholar telling him that such a Khula is not valid without the consent of the first husband. What he did was to look at the question from the specific point of view of Khula, and then he voiced his opinion on the basis of his school of thought. This means that there are two limiting factors in how he has dealt with the problem which involves the legitimacy or otherwise of a marital relationship. That is very bad indeed. I do not know the man or the country where he comes from, but I can guess his school of thought and I feel that he might not have studied anything outside it. That is not the way a good scholar should look at a problem like this with all its practical implications. This is not a case of Khula in the first place. Khula is the nullification of the marriage at the request of a wife, which may not have a reason other than the wife feeling that life with her husband does not give her the fulfillment a woman expects from a happy married life. In Khula the woman pays back her dower to her husband and her waiting period lasts only for one menstruation period, according to the weightier opinion, to ensure that she is not pregnant. When the Khula takes place, it does not count as a divorce.Here the case is one of divorce by the judge on the basis of ill-treatment. In such cases, the judge has to make sure that there is undoubtedly ill-treatment which makes life with the man intolerable. The judge determined what sort of proof to demand in order to satisfy himself that the claims of the wife are true. Here we are told that the man beats up his wife. If he acknowledges that, then that is the best proof, but this could also be proven by other means, such as witnesses who may be neighbors or relatives. We are also told the man used to demand money from his wife. He sent her to her parents frequently to get him that money. This is again another form of ill-treatment which could make life intolerable. The judge in this case has done what is required when he sent repeated notices to the husband to attend the hearing, and when he published an announcement in the local newspaper. If the husband does not attend the court after all this and the judge is satisfied that the ill-treatment is a fact, then the judge is within his jurisdiction to order the nullification of the marriage. That nullification is considered a divorce by the judge, which is a single divorce. This is another difference between this sort of nullification and Khula.The second husband of this lady may rest assured about the validity of his marriage. He need not worry or ask any one's opinion since the nullification is ordered by a court of Islamic law. What is the purpose of asking anyone when no one would give the case the sort of in-depth study and consideration as the court would do?

THE WOMAN'S RIGHT TO DEMAND DIVORCE

Adil Salahi

The woman who cannot bear to live with her husband has the right to free herself from the marriage bond by returning to her husband the mahr (required marriage gift) and gifts he has given her, or more or less than that according to their mutual agreement. It is, however, preferable that he should not ask for more than he has given her. Allah Ta'ala says: "...And if you fear that the two may not be able to keep to the limits ordained by Allah, there is no blame on either of them if she redeems herself ..."(2:229)

The wife of Thabit bin Qais came to the Prophet and said, "O Messenger of Allah, I do not approach Thabit bin Qais in respect of character and religion, but I do not want to be guilty of showing anger to him." The Prophet asked her about what she had received from him. She replied, "A garden". He asked, "Will you give him back his garden?" "Yes", she said. The Prophet then told Thabit, "Accept the garden and make one declaration of divorce."It is not permissible for a woman to seek divorce from her husband unless she has borne ill-treatment from him or unless she has an acceptable reason which requires their separation. Said the Prophet, "If any woman asks her husband for a divorce without some strong reason, the fragrance of the Garden will be forbidden to her."

IS THE DIVORCE VALID IF HUSBAND DOES NOT AGREE?

Mufti Ebrahim Desai

Khul'a is defined as follows: 'his (husband's) acceptance of wealth in exchange of his possession (of the woman's hand) in the marriage. (Fathul Qadir vol.6 pg.57; Rashidiyya).

The following verse forms the basis of Khul'a: 'If you fear that they (the spouses) may not uphold the boundaries of Allah, then there is no harm upon the two of them (spouses) in the ransom offered by her (wife).' (2:229)

Ibn Abbaas (Radhiallaahu Anhu) narrates that the wife of Thabit ibn Qais (RA) came to Nabi (Sallallaahu Alayhi Wasallam) and said, 'Regarding Thabit (Radhiallaahu Anhu), I do not fault his character nor his Deen (religion), but I fear being ungrateful in Islam. I want to return his garden to him (in exchange of Talaaq).' Nabi (Sallallaahu Alayhi Wasallam) asked, 'Do you really want to do this?' she replied, 'Yes'. Nabi (Sallallaahu Alayhi Wasallam) said (to her husband), 'She wishes to return your garden to you (in exchange for Talaaq). He asked, 'Do I have the right to (accept it)?' Nabi (Sallallaahu Alayhi Wasallam) replied, 'Yes'. He said, 'Then I accept (the garden in exchange of the Talaaq). (Musannaf Abdul-Razzaak vol.5 pg.391; HM Saeed)

The above can be further understood by the following: 1. Allaamah Kaasaani (RA) states 'contracting for Talaaq by means of an exchange.' (Badaai-us-Sanaaie; Ahsanul Fataawa vol.5 pg.382). 2. Imaam Zaylaa'ee (RA) states, 'None of them have the right to compel their partner against their will.' (Tibyaanul Haqaaiq; Ahsanul Fataawa vol.5 pg.382; HM Saeed) 3. Shamsul Aimmah Sarakhsi (RA) stated, 'Khul'a is permissible in the presence of the Sultan, i.e. presiding authority, or anyone else, because it is a contract based on mutual agreement like all other contracts.' (Mabsoot; Ahsanul Fataawa vol.5 pg.385; HM Saeed)

From the above quotations of the noble Qur'aan, Ahaadith and Fiqh (jurisprudence), it is clear that Khul'a is a contract by mutual consent between the husband and wife. The wife cannot unilaterally institute Khul'a without the consent / agreement of the husband. However, if the husband is spiteful and withholds the divorce, the wife may contact a reliable Judicial committee to annul the marriage. If there are valid grounds, the annulment will be considered. and Allah Ta'ala Knows Best

HOW THE WOMAN GETS SEPARATION FROM HUSBAND

Mufti Ebrahim Desai

Rasulullah (Sallallaahu Álayhi Wasallam) said, 'The most detestable among the permissible things in the sight of Allah is divorce.' If there is a dispute between husband and wife, they should first try to resolve it between themselves, failing which, Allah says, 'Two persons representing the husband and wife respectively should arbitrate and amicably resolve the dispute.'

As far as possible, a divorce should be avoided. However, after exhausting all avenues of reconciliation, as a last resort, Allah says, 'Keep with principle or release with principle'. If the husband and wife cannot fulfill their respective duties to one another, then instead of committing a sin of violating one another's rights, they should separate. The husband should release his wife with principle by giving her divorce. In such a situation, if a wife seeks for a divorce, she will not be sinful. If the husband refuses to divorce her, she may make Khula, i.e. offer to repay her dowry to him in lieu of him granting her the divorce. If the husband is still spiteful and withholds the divorce, the woman may contact the Úlamaa (scholars) of her locality who are well versed with judiciary principles of Islam requesting them to annul the marriage. And Allah Ta'ala Knows Best.

DIVORCE IN THE LIGHT OF ISLAM

By Jamal Al-Badawi

Our beloved Prophet (SAWS) says that the most detestable act that Allah has permitted is divorce. In fact, Islam does not encourage divorce. Prior to the advent of Islam, there were two extreme views regarding divorce. In some societies and religious doctrines, divorce could be sought only on the death of one of the spouses or when adultery had been alleged and after divorce neither spouse was permitted to remarry. In some other societies, it was very easy to break the bond of marriage and no check was there against the abuse of the practice of divorce.

It is noticeable that, in the present world also, in some states of the USA it is possible to divorce, get remarried and then divorce again whimsically within the space of one day. (Source: Islamic Teaching Course, Vol.3, by Dr. Jamal A. Badawi). In fact the consequence of both the over-restriction and the over-liberalization is harmful. In the case of the over-restriction, i.e.. to keep an unsuccessful marriage intact, there occurs a permanent bitter and hostile relation between the husband and wife. Whereas in the case of the over-liberalization, the family as an institution disintegrates and the society as a whole suffers.

In contrast to these extremes, Islam takes a moderate view on divorce. In order to remove the misery of an unsuccessful marriage, Islam supports divorce as the last and final resort only to liberate both the spouses from the bitterness of the relation. And in Islam divorce can only be pursued when all other avenues have been taken to reconcile the couple but have come to no avail. In fact, Allah (SWT) has given us the laws keeping the nature of human beings, with all their capabilities and limitations, in His mind. Verily it is in Allah's mind that husband/wife, being prompted by anger or haughtiness, can take an unpremeditated reckless decision regarding divorce. Hence Allah promulgates a long process of ninety days by three consequent steps of divorce and the spouse can change his/her decision within this period.

Ours is a society where there is an awful misunderstanding about the issue of divorce. If the husband utters Talak or divorce three times in the same breath, it is considered an irrevocable divorce and there remains no chance of reconciliation between the couple. And under this strict view, which is not supported by many classical and the modern Islamic scholars, many families are broken and the women and children are mostly affected. According to the view supported by many modern Islamic scholars, three or more utterances of divorce at a time are regarded as only one Talak (divorce).. But, according to all scholars, to utter such number of divorce at a time is not encouraged in Islam and the person who pursues this undesirable system will be considered sinful. If it is held to be irrevocable and the final divorce, then the option offered by Allah to take back one's wife within 90 days becomes frustrated. In consequence the rate of the dissolution of marriage increases and, as a matter of course, more women and children will be helpless. However, the competent Islamic scholars should remove, whatever may be the legal position, the misconceptions about Talak. If all the reverend Imams of the mosques in the country take the lead in the matter and start a social movement so that none gives 3 Talak at a time, it will be a big step forward.

Some people raise the question regarding the right of wife to pronounce divorce in Islam and many misunderstandings are there in our society centering this issue. In Islam woman is deprived in no respect and any question of injustice or anti-woman bias is inconceivable as Allah (SWT), the Lawgiver, is independent of any consideration of sex. In Islam wife is fully entitled to initiate or pronounce divorce though the procedure is different from that of her husband. If the husband is missing for a certain period of time or an indefinite time, or if he suffers from a fatal incurable disease, or if he is sexually impotent, and in some other cases and circumstances, the wife is given every right to initiate divorce. Moreover, if she suffers unhappiness, misery or incompatibility with her husband, then also she can do it with the intervention of court.

There is another system of dissolution of marriage by the woman that is called "Khula" through which the wife can get separation from husband by returning the marital gift or part of it. It is not necessary that she should have a definite ground for pursuing Khula. Thus we see that both the husband and the wife can initiate divorce in Islam though the procedure is different. The husband seems to be given the right to practice divorce arbitrarily; but this is not really so. In pursuing divorce the husband encounters financial disadvantages as he married his wife by giving her mohr (marital gift) and he is bound to give it to his wife at the time of dissolution of marriage if it is unpaid yet. Moreover, he will have to pay mohr for the second time if he wants to get married again.

To make my point clearer, herein, I am quoting Dr. Jamal A. Badawi, a prominent Islamic scholar of the present time. He says, "Although both husband and wife suffer as a result of a divorce (psychologically for instance), a man has the additional burden of a heavy responsibility. He loses the whole of marriage gift, the wife is entitled to maintenance whilst in the waiting period (which can be as little as three months or as much as nine months); she is entitled to child maintenance if young children are in her custody; according to some jurists she would also be entitled to a consolation maintenance for a year etc. The fact that a husband who has so much to lose financially if he divorces his wife acts as a natural deterrent from abusing his right of divorce. If Muslim women had such a right, however, there would be no such check on them because they do not have any financial responsibilities towards their husbands."

But it does not mean that Islam does not give the wife the right to break the marital bond when she wants so. It only checks the abusing of such right.

Discussing the conditions under which a wife can unilaterally divorce her husband without seeking the court's approval, Dr. Jamal A. Badawi pointed two situations:

"Delegated Repudiation, where at the time of marriage or afterwards, the husband transferred his unilateral right of divorce to his wife; and

Conditional Repudiation, where at the time of the signing of the marriage contract, the wife stipulated certain conditions to her husband, the breach of which would result in a divorce. "

The grounds on which a wife can seek divorce from her husband in the courts are:

Inability or refusal of the husband to maintain his wife (even if she happens to be rich, it is still the full responsibility of the husband to maintain her).

Abuse / mistreatment (which includes beating and swearing, cursing and attempting to force her to do wrong).

Impotence of her husband (in recognition of the wife's legitimate instinctive needs).

Incurable, repulsive disease in the husband or insanity.

Extended absence or desertion by the husband: If his whereabouts is known, he is given the chance to return to his wife before the divorce takes effect; If his whereabouts is unknown, a six-month or one-year waiting period is placed on the wife. If the husband fails to return, the wife is divorced from him.

Imprisonment of the husband.

Deception or concealment of important information at the time of the marriage. "There are two methods of divorce by mutual consent:

Mubarra, where husband and wife mutually agree to release each other from the marriage vows-they also agree among themselves the financial and other conditions for the release;

Self-redemption (Khula), where, if the wife is unhappy with the conduct of her husband and has genuine grievances which she fears will cause her to fall into error if she continues in the marriage, then she obtains separation by returning her husband's marriage gift in return for the dissolution of the marriage.

Conditions that should be observed when using Khula method of divorce are:

There must be a genuine reason for seeking divorce

Dissolution may be imposed on the husband if he refuses to let his wife go

No husband may pressurize his wife into asking for Khula so that he can regain the marriage gift; and

This form of dissolution can take place at any time." "So the lack of an unconditional unilateral right of divorce does not prevent a wife from seeking divorce from her husband, if she has good reasons for it, in any of the ways described above." It is true that, in most cases, the rural wives are deprived of the right to divorce (and also of many other social, political and religious rights).

It is because of the failure of the governments of the Muslim countries and the leaders to educate them and inform them of their rights. The system of Khula Talak is not cumbersome as termed by some people of inadequate knowledge about Islam. It is a very easy procedure and the people should be informed about and be educated in it.

The guardians and the leaders of the Muslim Ummah should deem it their religious and moral responsibility to launch a social movement in order to establish the proper right and dignity of womenfolk. Allah (SWT) has enjoined it on us to strive for the cause of the oppressed men, women and the children. (Ref. Al-Qur'an 4:75)

A WOMAN'S RIGHT TO DIVORCE (KHUL)

By Brother Farrukh

Assalam alaikum,

All to often we hear the statements 'a woman can only divorce as it is disliked (makruh) if ..' or however to what extend does this statements adhere to the example of the early Muslims; Islam vs opinion?

Ibn Abbas said: The wife of Thabit bin Qais bin Shammas came to the Prophet and said, "O Allah's Apostle, I do not blame Thabit for any defect in his character or his faith, but I am afraid that I may become unthankful for Allah's blessing". The Prophet asked her "Will you return the garden (which she recieved as her dowry)?" She said, "Yes". She returned the garden and the Prophet told him to divorce her. [Sahih of Bukhari Vol 7 no 199]

Here is a clear example of a woman divorcing her husband for no 'special' reason, for no 'important' reason; she simply did not wish to remain married to him, even though his character and faith were good. She exercised her right to leave her husband; and she and he managed to do so amicably.

In another example: Barira was maried to Mugith, a man who loved her intensely. Barira however did not love him, so she divorced him. Mugith would follow Barira around crying, with tears flowing down his beard. The Prophet felt for the love-struck Mugith so he asked if Barira would take him back. Barira asked the Prophet if it was a divine command that she should return to him, to which he replied no, it was a personal appeal. Hearing this Barira refused to go back to Mugith. [Sahih of Bukhari Vol 7 no 206]

Ibn Abdin observes that a woman can exercise her right to Khul (seperation) at any time. [Mukhtasar al Muzni, 4/51]

I dislike the selective quoting of hadith such as: The Prophet said, "If any woman asks for divorce from her husband without any specific reason, the fragrance of paradise will be unlawful to her" [al-Shaukani, Fath al-Qadir, 1, 214]

Clearly this hadith does not state that a woman doesnt have the right for divorce, as the hadiths above make it clear that in both examples, Thabit's wife, and that of Barira; both women divorced their husbands as they did not love them; and the Prophet agreed, and set no further condition.

Why is this principle so difficult for people to understand? For anyone to say that Khul (seperation) is disliked (makruh) is making a statement which is a semi truth. Any divorce, is based on two people having differences which they cannot reconcile;or one party feeling the other oppressing them. Then how can something, such as seperatation which Allah and His Apostle have made permissible [4:128, 4:20, 4:130], now become disliked? Surely it is better for those who disagree to seperate and find happiness elsewhere than to stay together and find distrust, sadness and even anger?

In another example: A woman came to the Prophet and said, "I hate my husband and wants seperation from him". The Prophet asked, "Would you return the orchard he gave you as dowry?" She replied, "Yes, and even more than that". The Prophet then said, "You should not return more than that" [Sunan al-Baihaqi Vol 7 p 313]

Al-Dasuqi states that Khul (seperation at the instance of the wife) is lawful and not disliked. [Hashiyah al-Dasuqi, 2/246]

Perhaps if men would treat their wives better then many of the problems we face today would dissapear; and perhaps if wives treated their husbands equally as well the problem would be resolved.


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