Khula Without Husband Consent Islamqa

[Jennifer Leos]

Fromthe 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 evidence presented and then come to a verdict that will be binding on all parties as in the case of the wife of Thabit (radiallahu anhu) at the time of the Prophet Sallallahu Alahi Wasalam. (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 aforementioned information, the upshot of it all is that if the scholar was doing a khula then he needed to get permission from the husband. However, if it was an Islamic Sharia Council then they could also annul the marriage without the permission of the husband as long as the effort was made in contacting him, but the husband failed to reply to their calls.

An Islamic Shari Committee can annul a marriage if they have at least three just persons sitting therein. They should all be knowledgeable and well versed in Shariah laws on marriage and divorce. An annulment issued by such a committee is valid in the Shariah. (The Complete System of Talaq p.211)

Regarding your situation, it seems to me that this scholar gave a ruling of khula without consent from your husband. If that truly was the case then you are still technically considered to be married to him. In spite of what I have said, from your question, there also seems to me that a Talaq Kinayah (an irrevocable divorce that will break the marriage straightaway) may have occurred if your husband said that he is ending or terminating the marriage.

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.

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.

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)

However, the process is not without its complexities and one of the challenges that may arise is when the husband does not agree to the khula. This article explores the intricacies of this situation, examining legal perspectives, historical context and potential solutions within the framework of Islamic law.

Khula is a form of divorce in Islam where the wife seeks a separation from her husband by offering financial compensation or forfeiting her financial rights. Unlike talaq, which is the right of a husband to unilaterally divorce his wife, khula empowers the wife to initiate the divorce process.

The pivotal question posed to the Kerala High Court in its 2021 ruling, now subject to review by the Supreme Court, was whether Muslim women forfeit their right to extrajudicial divorce following the enactment of the Dissolution of Muslim Marriages Act, 1939.

We have been married for last 3.5 years with no child. Due to some quarrel of my wife with parents. I, in total anger, gave her 1 talaak. I want her back in my life as her parents took her with them. Please guide me. Whether 1 talaak make any difference?? Or we have to do any kafaraa?? Or anything else. Please help please

First of all talaq questions can't be handled on this platform for the following reasons: We are no fatwa site and talaq matters need a fatwa by a well versed scholar who needs to meet and ask in first place the husband to clarify (by questioning the husband) whether or not talaq happened, for example whether or not a talaq happened in anger -which would nullify talaq- or not, needs much more insight and knowledge about the involved people. Afterwards the wife may consult the scholar too. So anybody pretending that you may solve a talaq issue an internet platform is speaking untruth. In best case they could provide some guidelines and options.

Assuming talaq happened (or better was uttered) the first and only time you may easily get back your wife, by declaring it. Neither the wife nor her father nor anybody have any right to refuse. As talaq only takes place -this means a separation that makes the former husband and wife foreigners- if the 'iddah of the wife was complete, so as long as the 'iddah didn't end both of you are still married and bound to the marriage contract and her guardian is her husband not anybody else. Nervertheless it is better if not recommended to reconcile in front of witnesses:

And it is not allowed for the husband to expel his wife from his house after uttering the words of "talaq", unless her 'iddah has ended. And it is not following the rules of Allah if the wife left the house of her husband without his consent during her 'iddah (and while still married). (see also Are women who are divorced after the consummation entitled to maintenance?).

The Arabic word for divorce is talaq which means "freeing or undoing the knot"(Imam Raghib).In the terminology of the jurists. Talaq signifies the dissolution ofmarriage, or the annulment of its legality by the pronouncement of certain words.

Talaq Ahsan or the most laudable divorce is where the husband repudiates hiswife by making one pronouncement within the term of Tahr (purity. when the womanis not passing through the period of menses) during which he has not had sexual intercourse with her, and she is left to observe her 'Idda.

Talaq Bid'a or irregular divorce is where a husband repudiates his wife by threedivorces at once. According to the majority of the jurists, the Talaq holds good, butit is against the spirit of the Shari'ah, and, therefore, the man who follows this coursein divorce is an offender in the eye of Islamic Law.

The right of woman in demanding the dissolution of marriage is known as Khula'(meaning, literally,the putting off or taking off a thing).It is a kind of facilityprovided to the wife in securing Talaq from her husband by returning a part or fullamount of the bridal gift.

We have described before that, according to Islam, marriage is a civil contract;yet the rights and responsibilities consequent upon it are of such importance to thewelfare of humanity that a high degree of sanctity is attached to it.But, in spite ofthe sacredness of the character of the marriage tie,Islam recognises the eternity ofdivorce in cases when marital relations are poisoned to a degree which makes a peacefulhome life impossible.But Islam does not believe in unlimited opportunities for divorceon frivolous and flimsy grounds, because any undue increase in tht facilities fordivorce would destroy the stability of family life.Therefore, while allowing divorceeven on genuine grounds, Islam has taken great care to introduce checks designed tolimit the use of available facilities. The French legists Planiol and Ripert haveexplicitly emphasised Islam's point of view in regard to divorce in these words:"Divorce is a mischief.However, it is a measure that cannot be avoided for thewelfare of the community, because it is the only remedy for another harm which maybe wore dangerous The prohibition of divorce, whatever harm it may imply, is likethe prohibition of surgery, because the surgeon is compelled to amputate some of thelimbs of the patient's body.However, there is no danger whatsoever, in legislatingfor divorce (in accordance with the practice established by Islam) since it is not divorcethat spoils married life and dissolves its sacred tie, but the misunderstanding that arisesbetween the married couple and hinders the strengthening of this (union by marriage) anddemolished it.Divorce alone puts an end to the hatred that may occur between thehusband and his wife before it is aggravated and becomes an intolerable mischief tosociety" (quoted by Hasan Ibrihim Hasan, Islam, Religious, Political.Social andEconomic Study, p. 274).

Ibn 'Umar (Allah be pleased with them) reported that he divorced his wifewhile she was menstruating during the lifetime of Allah's Messenger (may peace beupon him).'Umar b. Khattib (Allah be pleased with him) asked Allah's Messenger(may peace be upon him) about it, whereupon Allah's Messenger (may peace be uponhim) said: Command him ('Abdullah b. 'Umar) to take her back (and keep her) andpronounce divorce when she is purified and she again enters the period of menstruationand she is again purified (after passing the period of menses), and then if he so desireshe may keep her and if he desires divorce her (finally) before touching her (withouthaving an intercourse with her), for that is the period of waiting ('ldda) which God,the Exalted and Glorious, has commanded for the divorce of women.

Abdullah (b.'Umar) reported that he divorced a wife of his with thepronouncement of one divorce during the period of menstruation.Allah's Messenger(may peace be upon him) commanded him to take her back and keep her until she waspurified, and then she entered the period of menses in his (house) for the second time.And he should wait until she was purified of her menses.And then if he would decideto divorce her, he should do so when she was purified before having a sexual intercourse with her; for that was the 'Idda which Allah had commanded for the divorceof women.Ibn Rumh in his narration made this addition: When 'Abdullah was askedabout it, he said to one of them: If you have divorced your wife with one pronouncement or two (then you can take her back), for Allah's Messenger (may peace be uponhim) commanded me to do it; but if you have divorced her with three pronouncements,then she is forbidden for you until she married another husband, and you disobeyedAllah in regard to the divorce of your wife what He had commanded you. (Muslimsaid: The word "one divorce" used by Laith is good.)

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