Fathwa, - Her family and ex-husband pressure her to take Khul' from her husband

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Question
As Salaam Alai Kum A girl was married at age of 17+ without her consent; during the relationship of marriage she had three children; the woman quite often brought to the attention of her family members the strains in the first marriage, however, they asked her to continue. They could not get along and finally divorced each other, mutual agreement. After completing the Iddah, Shariah formalities, etc. she came in contact with a man, liked him and both got married )Nikaah( as per Shariah guidelines. The three children from her first husband stay with the mother & second husband )the couple(. The couple is happily married for last 10-12 years; the children also are happy & their basic needs are taken care-of; there is no dispute in relationship, this relationship is full of love, genuine feelings; care, affection, understanding, etc. The elder daughter )first child( recently got married )most of the expenses of the marriage were borne by biological father(. Now the other two children have grown-up, the biological father demands that the kids stay with him, citing they will have brighter future and shall not be deprived of the luxuries of life. To give the children their ‘HAQ”; the condition imposed by the woman’s )mother( family members and first husband is that she should take KHULA from the second husband. The mother cannot stay without the children; this couple )woman + second husband( cannot live without each other; there is no valid reasons for separation, both are happy with each other. The people involved are demanding / forcing the woman to take KHULA from the second husband and go back to the first husband. Otherwise she and the children will be deprived from the ‘HAQ’ they should get by means inheritance. “Is it fair or permissible to force the Woman to take KHULA or force the Second Husband to give KHULA without any valid reasons or justifications? “Is it fair or permissible to withhold one’s ‘HAQ’ and deprived them with what they entitled for”?
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 Muhammad, is His Slave and Messenger.
It is not permissible for anyone to force two spouses to separate through divorce or Khul’ without a Sharee‘ah-based reason. It would not even be valid unless they consented to it. Rather, this is like what the sorcerers and devils do when they work to separate loved ones. This causes Fitnah )tribulation( in the earth and great corruption.Allaah The Exalted Said about sorcerers )what means(: }They then learn from them that by which they cause separation between a man and his wife.{ ]Quran 2:102[. It is reported in Saheeh Muslim that one of the troops of Ibless )the Devil( says to him: “I did not leave him alone until I caused separation between him and his wife.” So he )Iblees( brings him close to him and says: “How good you are!” Those people should be reminded to fear Allaah for themselves and to stop this evil act.
Likewise, it is not the right of the father to restrict his children from their right of inheritance due to them staying in the custody of their mother. If he wrote this in his will, then that )part of the( will would be invalid and it is not permissible to fulfill it. Allaah The Exalted divided the inheritance according to His Book and He gave every rightful person his right, and then followed that by saying )what means(: }These are the limits set by Allaah, and whoever obeys Allaah and His Messenger will be admitted by Him to gardens ]in Paradise[ under which rivers flow, abiding eternally therein; and that is the great attainment. And whoever disobeys Allaah and His Messenger and transgresses His limits – He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment.{ ]Quran 4:13-14[. For more benefit, please refer to Fatwa 120933.
As for the custody of the children, it is the right of the mother. However, if she marries, then custody is transferred thereafter to the person entitled to it after her according to the order stated by jurists as clarified in Fatwa 84618. Some of the scholars stipulated that the right of custody for the father is conditioned upon him having a righteous female to manage that custody. This is reported by the Maaliki jurists.
If there is any dispute in such issues, it is only appropriate to refer to those specialized in looking into Muslim affairs )like Islamic courts and Islamic centers(.
Allaah Knows best.

- PUBLISHERNajimudeeN M

Fathwa, - Having intercourse with husband has no effect onwife's Khul’ case

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Question
After ten years of constantly trying )and two kids( I have determined there is no peace left in my marriage. We have both tried our best to overcome our problems yet we are still unable to come to a solution same as the first week we married. I'm taking my husband to court for khulu although he is not accepting, I am finished. I know for men, if they have relations with their wife during talaq, the talaq is nullified because they took them back. But during khulu, a wife is still under her husband's rights and house )and has no way to move out(. If he wants to have relations and she doesn't want anymore, does she have to obay him in this? If she does obay him and sleeps with him, though there is no love in her heart only to obay him fearing Allah, but not to take him back is her khulu still in process? Will the Islamic Courts accept khulu even though she's still sleeping with him, for the sake of Allah only. Thanks for help in this matter. I don't want to have relations, yet I don't want to have Allah angry with me, or to cause my husband physical harm )from lack( in the time it will take the courts to decide.
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 Muhammad, is His Slave and Messenger.
In principle, the bond of marriage is still valid until divorce or Khul’ takes place; for more benefit, please refer to Fatwa 92236.
Based on this, you are still a wife to your husband and you are obliged to obey him in what is permissible, among which is that if he calls you to bed, you are obliged to honor his request even if you have no desire. In case you refuse without having a sound reason, then you are very sinful.Abu Hurayrahnarrated that the Prophetsaid: "If a husband calls his wife to bed )to have sexual intercourse with her( and she refuses, and he spends the night angry with her, the angels will curse her until the morning." ]Al-Bukhaari and Muslim[
On the other hand, having intercourse with your husband has no effect on the Khul’ case you have raised in the court nor on whether or not the judge will accept it.
In case the judge issues Khul’, then this is one irrevocable divorce and the husband is not permitted to take back his wife except with a new marriage contract. For more benefit, please refer to Fatwa 157545.
We would like to point out two matters:
1- If a husband has sexual intercourse with his wife )in her waiting period( when she is divorced a revocable divorce, then this is considered as him taking her back according to some scholars, and some of them stipulate having the intention to take her back along with the intercourse. For more benefit, please refer to Fatwa 89845.
2- If a wife hates her husband, she is permitted to ask for Khul’, but if she is able to be patient with her husband and strive with him in solving their problems, then this is more appropriate. Indeed, homes are not built on love alone as clarified in Fatwa 86796. Moreover, since you have children who need the care of their parents, then this is one of the greatest benefits that would help the spouses to overcome their problems. Allaah says )what means(: }And if a woman fears from her husband contempt or evasion, there it no sin upon them if they make terms of settlement between them — and settlement is best. And present in ]human[ souls is stinginess. But if you do good and fear Allaah — then indeed Allaah is ever, with what you do, Acquainted.{]Quran 4:128[
Allaah Knows best.

- PUBLISHERNajimudeeN M

Fathwa, - A woman asking for Khul'may relinquish her delayed Mahr

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Question
Assalaam u alaikum, Can you please tell me that if a husband does not give his wife mahr although it has been specified in the contract and she wants a divorce, does she have to buy back her freedom or can she simple ask for divorce? Jazak Allahu Khayr.
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.
This woman may ask her husband to divorce her – if she has a sound reason for doing so – and if her husband accepts and divorces her, then she deserves the full Mahr )dowry( if the divorce took place after the consummation of the marriage, and she deserves half of the Mahr if the divorce took place before the consummation of the marriage.For more benefit on the rights of a divorcee, please refer to Fatwa 86603.
Also, for more benefit on sound reasons for asking for divorce, please refer to Fatwa 131953.
In case her husband refuses to divorce her, then she may ask for divorce in return for compensation, and it is permissible that this compensation be that she relinquishes her Mahr.
Allaah Knows best.

- PUBLISHERNajimudeeN M