NAJIMUDEEN M - INDIA : Fathwa, - She asked her husband for Khul' and he said to her 'You could have it'

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Wednesday, February 19, 2014

Fathwa, - She asked her husband for Khul' and he said to her 'You could have it'

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I am currently serving my iddat in'sha Allah in either a khula or a talaq. I think I am in an irrevocable iddat as my husband divorced me twice before years ago. Last week my husband informed me that If I desire a khula I may take it and he will grant it. I htought hard about it and prayed istakhara. I do not regret my decision to take it and it is as if I have been released from a cruel slavery. I am so relieved to not be his wife any longer Sub'han Allaah! Anyways, when I ask my husband for the khula he said I could have it but there was no transferring of anything between us physically or in discussion. His intention was definitely to allow me to terminate the marriage and agree with it. I just assumed because its a khula he will keep my dowry which was the Tafisr Ibn Kathir collection. Is this a divorce or a khula? And my iddat is three periods )because I am in my twenties( no matter which it is right?
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammadis His slave and Messenger.
The statement of your husband ‘you could have it’ in response to you asking him for Khul’ is not a clear acceptance of Khul’ on his part, rather this depends on what your husband intended by this statement. If he meant that he gives you Khul’ without compensation, then the juristsdiffered in opinion in regard to Khul’ without compensation. Indeed,Ibn Qudaamahreported their difference of opinion and said after quoting a narration fromImaam Ahmad:“It appears that this means that Khul’ without compensation is valid, and this is the view of Maalikbecause it is a termination of the marriage, so it is valid without compensation, like divorce. That is because Khul’ is basically legislated in case a wife hates her husband and wishes to separate from him, and so she asks him to release her, and if he accepts, then what is meant by Khul’ is achieved, so it is valid, in the same way as if it was with compensation…”Then he )Ibn Qudaamah( mentioned the other narration fromImaam Ahmadand said:“According to this narration, Khul’ is not valid except with compensation, and if he )the husband( utters it without compensation and he intended divorce, then it is a revocable divorce as it can be considered as a metaphor of divorce. However, if he did not intend divorce with it, then it is nothing. This is the view of Abu Haneefah and Ash-Shaafi’i.”
However, it appears that the first opinion is closer to the truth because of its strong evidence. Based on this, if your husband had intended by his statement ‘you could have it’ to initiate Khul’ with this wording, and he did not intend just a promise to do it, then this Khul’ is valid and it is one revocable divorce as we have already clarified in Fatwa 88502.
The waiting period of a woman in Khul’ is like the waiting period of a divorced woman according to the preponderant opinion of the scholars.

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