Question
Assalamalaicum, I have already asked several questions regarding my problem. It may be my last question, my wife when came to know that there is no legitimate reason for invalidation of marriage, then she asked me Khula in lieu of dower through Islamic court. Suppose, I will not release her, the judge can go for dissolution of marriage if she is adamant over her separation decision without any legitimate reason as being told to her by judge himself. Can I be sinner, if i don't release her )My wife is pious, sober, chaste, virtuous and good in all aspects but stubborn & under pressure of her mother(. Jazakallah khair
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.
First of all, it should be mentioned that if the wife hates the conduct or the physical appearance of her husband and she fears that if she does not ask him for Khul’ )divorce initiated by a woman(, she will not be able to fulfill his rights upon her, then this is a sound reason that permits her to ask for Khul’. Rather, according to some jurists, it is desirable for her to do so. We mention this because some husbands do not know that this is a valid reason for the wife to ask for Khul’. However, the husband is not obliged to accept the Khul’ of his wife in this case but this is desirable as the ProphettoldThaabit ibn Shammaaswhen his wife asked him for Khul’: "Accept the garden and divorce her.” ]Al-Bukhaari[
Ibn Hajarsaid in his book Fath Al-Baari, “This is a matter of guidance and reconciliation and not an obligation.”
Moreover, in his book entitled Al-Insaaf,Al-Mardaawifrom the Hanbali school of jurisprudence, said about the ruling on the husband accepting the Khul’ )of his wife(, “As regards the husband, then the correct opinion of the school is that it is desirable for him to accept it, and this is the view of the majority of the scholars of the school ]i.e. the Hanbali School[. However, it was reported that Shaykh Taqiy Ad-Deenhad two opinions about the obligation of accepting it )the same opinion of the Hambali school and its opposit(. Some honorable judges of Damascus, Syria, are of the view that the husband is obliged to accept the Khul’.”
The view that it is an obligation on the husband to accept Khul’ when it is not possible to reconcile between the spouses is the view chosen byShaykh Ibn ‘Uthaymeen. He said in Sharh Az-Zaad, “If we are unable to reconcile between the spouses in any way, and he refuses to divorce her, and she refuses to stay with him, then some scholarsare of the view that Khul’ is an obligation in this case with the condition that she should give him back the entire dowry. Some scholars of the Hanbali School are of this view."
Besides,Ibn Al-Muflihsays about his Shaykh,Ibn Taymiyyah“Our Shaykh has different views on this issue, whether or not Khul’ is an obligation, although some scholars of the Hanbali school of jurisprudencestated that Khul’ is an obligation and is incumbent on the husband. They provided as evidence what the Prophetsaid to Thaabit: “Take the garden and divorce her”, and they said that this is an order that means an obligation. Besides, there is no other way to put an end to this conflict and discord except by this ]i.e. Khul’[ and putting an end to conflicts and discord among the Muslims is an obligation, and what is necessary for an obligation to be achieved is in itself an obligation, and this view is the correct view.”
Therefore, if there is no reason that makes Khul’ permissible and there are good marital relationships between the husband and the wife, then he should not accept her Khul’. Rather, some scholars are of the view that Khul’ is forbidden in this case and that it does not take effect. This is one of the two opinions narrated from ImaamAhmad.
On the other hand,Al-Mardaawifrom the Hanbali School of jurisprudence, said in his book entitled Al-Insaaf when mentioning the conditions of Khul’, “To say that Khul’ can take place while there are good marital relations between the spouses, then the view of the school is that it takes effect but this is disliked. Another narration from Imaam Ahmadreads, “Khul’ is forbidden and it does not take effect.”
Since, the case has been taken to the court, then the judge is in a better position to find out about the circumstances of the case, Allaah willing, and the family of the wife should fear Allaah The Almighty and help in the reconciliation between the spouses and not to spoil the marital relationship between their daughter and her husband.
Allaah Knows best.
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NajimudeeN M
Question
my wifeis claiming khula on the grounds of i went into another marriage i am not paying her maintanance or no contact over year but in reality she always cheated on me i have 3boys age 15,13,and11 i always love them when i caught herwith different affairs she put me in trouble always making false accusation and call the police so many time i am clear from police and now she is take over my buisnnes propert to commit a fraud she keep changing her home numbers so if i need to contact childrens i have to ring her and then refusses to see children or contact with her consant i went another islamic marriage i have some proof of her affair but even her brothers against me trying to protect her bcoz they got eye on my buisnnes and proprty they r thinking of them benifets but they fotgeting one thing they r taking my childrens and my good valuable time away i cry all the time for my childrens my wife spending all the money to her boy friends which is we saved for our chidrens please give advice asap bcoz ihave to give answer before 12march to sharia court to how to defend my case please dont mansion my name jazah ALLAH,,looking forward to hear from u or give me some numbers where i can seek advice many thanks,,
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.
Since the case is referred to an Islamic court, then it is the court which will decide about it.
However, you have the right to ask for your right in court based on what you know about the behavior of your wife. If Khulu’ takes place, then you have the right as well to endeavor to foster your children by mentioning that your wife is corrupt. You may also benefit by giving the choice to your children to choose between you and her.
Allaah Knows best.
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Question
Respected scholar, I had been blessed with daughter on 5 March 2012, As my case is under trial in Islamic court. I came to about the birth of my daughter on 9 Mach 2012 from other sources and rushed to meet her but my mother in law did not enter me the room )Hospital( and called up police, for the same I complained in Islamic court. Judge of that court just called them for not doing so as this is against of any law but did not give any order in written. As my wife needs Khula at the earliest. Can i hang her ? What should i do in this grief situation ?
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 a husband to keep his wife hanged in a way that he neither keeps her in kindness nor divorces her; because of the harm that this causes to her. Allaah Says about the husband who divorces his wife )what means(: }And when you divorce women and they have ]nearly[ fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress ]against them[. And whoever does that has certainly wronged himself.{ ]Quran 231[
On the other hand, a wife may requestKhul’]divorce in return for compensation[ if she has a sound reason for doing so as we clarified in Fatwa 84309. So, if your wife is permitted to ask forKhul’, it is recommended that you accept her request forKhul’and not keep her hanged.
As regards seeing your daughter, then this is your right and she )your wife( is not permitted to prevent you from seeing her even if she is the one who is entitled to child custody after divorce. In case she refuses and insists on not allowing you to visit your daughter, and you do not find a way to get your right to )see( your daughter except by procrastinating about givingKhul’, then it is permissible for you to do that as Allaah permitted the husband to put some pressure on his wife who is recalcitrant regardingKhul’so that she would give him back what he had given her )as a dowry(. No doubt taking back his right from her is more permissible for him as Allaah Says )what means(: }And do not make difficulties for them in order to take ]back[ part of what you gave them unless they commit a clear immorality.{ ]Quran 4:19[
Ash-Shanqeetisaid inAdhwaa’ Al-Bayaan: “The scholars differed in opinion in regard to what is meant by ‘clear immorality’, so a group of them said: “It is Zina )adultery( and some others said: “It is recalcitrance, disobedience and obscenity. However, it appears that the verse includes all this and this is the view chosen byIbn Jareer. Besides,Ibn Katheersaid: “This is good, so if she commits Zina, or speaks obscene words, or becomes recalcitrant, it becomes permissible to annoy her so that she would ransom herself with what he had given her as we have previously stated that the meaning of the verse is general.”
Hence, we advise you to take the matter of her preventing you from seeing your daughter to an Islamic court in your country as the court is in a better position to resolve the dispute and give each one his/her right.
If there is no Islamic court, then you should take your case to a scholar who fulfills the requirements for being a judge, and if your wife refuses, then do not divorce her or grant herKhul’until you ensure your right of seeing your daughter and taking care of her affairs after separating from your wife.
The fact that the custody of the child is for the mother does not mean that she can prevent the husband from seeing his child and the jurists unanimously agreed that both parents have the right to visit his/her children if the custody is for the other parent.Ibn Qudaamahsaid in his book entitled Al-Mughni: “The parent who has the right of custody has no right to prevent the other parent from visiting the child that is with him/her.”
Therefore, if it is the mother who has the custody of the child, the father has the right to visit his child who is with her without any restrictions on this visit. For more benefit, please refer to Fatwa 84575.
For more information on Khul’.
Allaah Knows best.
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