The ruling of Al Khul`

- If a woman hates her husband because of his ugly face or his bad treatment to her, and she fears not to fulfill the right of Allah, she may ask for divorce for money because of Allah's Saying: "Then if you fear that they would not be able to keep the limits ordained by Allâh, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al Khul` (divorce).”

`Amrah, the daughter of `Abdur-Rahman ibn Sa`d ibn Zurarah, reported on the authority of Habibah, the daughter of Sahl Al Ansariyyah: She (Habibah) was the wife of Thabit ibn Qays ibn Shammas. The Messenger of Allah (peace be upon him) came out one morning and found Habibah at his door. The Messenger of Allah (peace be upon him) said: Who is this? She replied: I am Habibah, the daughter of Sahl. He asked: What is your case? She replied: I and Thabit ibn Qays, referring to her husband, cannot live together. When Thabit ibn Qays came, the Messenger of Allah (peace be upon him) said to him: This is Habibah, the daughter of Sahl, and she has mentioned (about you) what Allah wished to mention. Habibah said: O Messenger of Allah, all that he gave me is with me. The Messenger of Allah (peace be upon him) said to Thabit ibn Qays: Take it from her. So, he took it from her, and she went to live with her relatives.

In another narration: Ibn `Abbas (may Allah be pleased with him) narrated that the wife of Thabit ibn Qays ibn Shammas came to the Prophet (peace be upon him) and said: "O Allah's Messenger! I do not blame Thabit for any defects in his character or his religion, but I am afraid that I (being a Muslim) may become unthankful for Allah's Blessings.” Upon that, Allah's Messenger (peace be upon him) said (to her): "Will you return his garden to him?" She said: "Yes.” So, she returned his garden to him and the Prophet (peace be upon him) told him to divorce her. (2)

-  If a wife does not hate her husband but they agree to practice Khul` without any reason, it is permissible to do so because of Allah's Saying: "But if they, of their own good pleasure, remit any part of it to you, take it.” And because it is a cancellation to a contract that was done by mutual consent to remove a harm, so it is permissible to cancel it such as the cancellation of sale.

- If a husband treats his wife with harshness or by beating her or withholding her due rights such as expenditure and equity [if there is more than one wife] in order that she ransoms herself of him, scholars have two views on this issue:

The first view is that Khul` is null and void and the compensation should be rendered back as Malik, Al Shafi`y, and Imam Ahmad said and as was reported from Ibn `Abbas, `Ata', Mujahid, Ash-Sha`by, An-Nakh`y, Al Qasim ibn Muhammad, and Az-Zuhry.

They held the following as proofs:

Allah's Saying: "And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allâh (e.g. to deal with each other on a fair basis)."

Allah's Saying: "O you who believe! You are forbidden to inherit women against their will; and you should not treat them with harshness, that you may take away part of the Mahr you have given them, unless they commit open Fahishah (illegal sexual intercourse or disobey their husbands); and live with them honorably.” (3)

Moreover, it is a compensation that was taken under pressure without a legal right, so Khul` is not valid. If a husband divorces his wife in this case for compensation, he should not take the compensation because it is a contract for mutual dealings that was done by force, so he does not deserve the compensation. If that was done after the commencement of marriage, he may take her back in marriage because when Khul` is cancelled, he may take her back in marriage.

The second view is: The contract is valid and the compensation is obligatory, and the husband shall be sinful as Abu Hanifah said. However, the correct view is the first.

- If a husband beats his wife for her disobedience to him or for withholding his rights, her Khul` is valid.

`A'ishah, the Mother of the Believers, (may Allah be pleased with him) narrated: Habibah the daughter of Sahl was the wife of Thabit ibn Qays Shammas. He beat her and broke some of her organs. So, she came to the Prophet (peace be upon him) after the Fajr Salah, and complained to him about her husband. the Prophet (peace be upon him) called on Thabit ibn Qays and said (to him): Take part of her property and separate yourself from her. He asked: Is that right, O Messenger of Allah? He said: Yes. He said: I have given her two gardens of mine as a dower, and they are already in her possession. The Prophet (peace be upon him) said: Take them and separate yourself from her. (4)

- If a husband beats his wife out of oppression or because of his bad manners without having the intention that she would ransom herself of him, it is not forbidden for him to accept Khul` because he did not treat her badly for that reason, but he shall be sinful.

- If a wife has committed a fornication, and her husband prevents her from her rights to separate from her for some money, it is permissible for him to do so and he deserves the compensation because of Allah's Saying: "And you should not treat them with harshness, that you may take away part of the Mahr you have given them, unless they commit open Fahishah (illegal sexual intercourse or disobey their husbands); and live with them honorably.” And the word "unless" indicates the permissibility of the matter.

When a wife commits adultery, it is not safe to attribute an illegal child to him and that will spoil the marital relationship between them, so it will go under the Ayah which says: “Then if you fear that they would not be able to keep the limits ordained by Allâh, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al Khul` (divorce).”

______________________

(1) Reported by Abu Dawud in the chapter on Al Khul`, Hadith No. 2229-2/236, and Al Albany graded it as authentic, and reported by Ibn Hibban in the chapter on Al Khul`, Hadith No. 4280-10/110.

(2) Reported by Al Bukhari in the chapter on Al Khul`, Hadith No. 4973-5/2022.

(3) Surat An-Nisa': 19.

(4) Reported by Abu Dawud in the chapter on Al Khul`, Hadith No. 2230-2/236, and Al Albany graded it as authentic.

Add comment