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Question
I live in pakistan. I married last year )09-11-2005(. Everything was normal upto 20th of April-2006. I was at factory where i am doing job. I called my wife at 7.45 pm, we talked more than 5 minutes. everything was normal. After 40 minutes i received her call and she informed me that her father came from other city and she is going to her sister house. I said okay. Her father talked to me and asked me to come my sister-in-law house. At that time i was on my way to my house. I turned towards my sister-in-law house. I reached there first and after 5 minutes my wife reached with her father. Her father accused me lot and told me that my wife is going with her father to other city where they live. I simply refused their accusation because they were all base less. I asked my wife 3 times infront of her father and her sister to go with me for home. But she didn't answer. Next day they flew to their native city. Fiest they ask for Sepration. Her parents abused me and my parents. My wife and her parents accused me and humillated my parents. We tried 3 time to solve the matter. But her parents refused to send her. They said 95% this relation has finished. The MEHAR is 1 lakh rupees. Out which 83 thousands have been paid through Jewelry from my side. She took all jewelry of both sides and her all clothes from her side.My wife is pregnent and delivery is to be expacted in mid of August 2006. From last 2 months they are quiet. If They ask for Khula, what will be the status of MEHAR which i already paid? What about the baby?
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.
We advise the questioner to first attempt to tackle this problem with wisdom. This can be done by allowing a third party )close relatives or acquaintances( from the people of knowledge, venture and reason, and who have influence on disputing parties, to mediate between him and the family of his wife. The mediation should aim to let the family of the wife know that ruining the relationship between their daughter and her husband is one of the major sins, and is part of the handicraft of the devils. The Prophetsaid: “Indeed, Iblees )Satan( places his throne upon water; he then sends detachments ]for creating dissension[; the nearer to him in rank are those who are most notorious in creating dissension. One of them comes and says: I did such and such. And he says: You have done nothing. Then one amongst them comes and says: I did not spare so and so until I sowed the seed of discord between him and his wife. The Satan goes near him and says: ‘you have done well.’” ]Muslim[
In addition, the Prophetsaid: “The one who ruins the relationship of a woman with her husband is not one of us.” ]Abu Daawood[
However, if the questioner wronged his wife or her family, he should rectify what he did in order to facilitate reconciliation. If, thereafter, the family of your wife persist on what they have been doing, then you need to know that they do not have the right to force you to divorce or have Khulu’ ]a divorce sought by the wife through the Muslim judge[. In addition, you may raise the issue to the Islamic court.
If, however, you did not find a solution that is binding on them, other than accepting Khulu’, we believe that you should accept the Khulu’. The Prophetsaid: “Those women who seek khulu’ ]without valid grounds[ are the hypocrites.” ]At-Tirmithi and An-Nasaa’ee[ Furthermore, you may stipulate ]in the Khulu’[ that she should return what you paid of dowry back to you in full, and waive the rest of it. Please refer to Fatwa 89039about Khulu’ and its most important rulings.
Concerning the custody of a child when his parents separate, the mother has the right for custody even if transgressed in seeking the Khulu’, as this is the apparent position of the scholars, except in the case where the mother is aFaasiqah)rebellious against the rules of Allaah(, as rebellion is one of the preventive reason for having custody.
However, if a dispute arises about the qualification of the mother for having custody, in this case the matter should be decided by a Muslim judge as ImaamAn-Nawawistated.
Please refer to Fatwa 90467concerning who has the right for a child’s custody, and to whom it may be transferred.
Furthermore, the jurists stated that the husband has the right to stipulate the right for the child’s custody in the Khulu’.Ad-Dardeersaid, “The khulu’ in which a wife waives her right for custody to her husband is permissible. The right of custody will be transferred to him even if, without this waiver, there is someone else, besides him, who has more right over it.”
Therefore, it is permissible for the questioner to stipulate the right for the child’s custody in exchange for Khulu’.
Allaah Knows best.
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NajimudeeN M
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Question
1.if khula happens,is it husband's right to get back "mahr" & "shabka"?or "mahr" only? 2.what's is allowed & what's forbidden in the waiting period after divorce?is the divorced woman allowed to go out for study or shopping or to take her kids out?
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 a woman should not ask for divorce orKhul')to ask for divorce in return for compensation( without a sound reason, as the Prophet, said:''The women who )frivolously( ask for Khul' are hypocrites.'']Abu Daawood and At-Tirmithi[
Similarly, it is forbidden for a husband to treat his wife harshly and harm her to an extent that she would be prepared to give him anything in order to get a divorce orKhul'. Allaah Says )what means(:}…and you should not treat them with harshness, that you may take away part of the dowry you have given to them.{]Quran 4:19[ Therefore, one should not resort to Khul' unless there is a need for it, like when it is impossible to continue the marital relationship. For more benefit, please refer to Fatwa 87289.
As regards the''Shabkah'' )gold or jewellery(, if the husband had given it to his wife as a gift, then he is not permitted to ask for it or take it back as it is forbidden to take back a gift. The Prophet, said:"A person who takes back a gift is like a dog which eats what it vomited."]Al-Bukhaari and Muslim[
However, if the husband had offered the Shabkah as part of a dowry, or that this is the prevailing custom, then he is permitted to take back the full dowry including the Shabkah. For more benefit, please refer to Fatwas 88813and 89039.
As regards to what a woman inKhul'is permitted to do, then her ruling and waiting period are like that of a divorced woman, according to the view of the majority of the scholars. However, she is not obliged to observe a mourning period and do what a widow whose husband has died is obliged to do. Indeed, she may go out of her home for a need provided she observes the religious requirements, like wearing the Hijaab and not staying in seclusion or mixing with marriageable men.Allaah Knows best.
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- PUBLISHERNajimudeeN M
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Question
Assalamu Alaikkum I really would like to get seperated from my husband.Let me menstion few things that made me write that i need divorce.My husband, basically he is an engineer, but never has gone for any job.I used to ask him to do something rather than sitting ideal at home.Actually i think of divorce is because of his immoral character.I mean, he has many girlfriends, even in front of me he used to talk to them, will go for outing with them, doing masturbation even in public places, having sex with different girls, drinking alcohol etc with the income what I am getting.I tried to correct him in all the ways, even consulted with counselors.The doctors told me it is a behavior and he has to change it himself.Then we both came to GCC in the year 2000.But unfortunately there was no change in his character and in fact here his adultery became more and when I stop giving him money he even start stealing things.Two Three times he has been caught by the police for doing masturbation in public places and for stealing.This all made me fed up and in 2004 my family told me about getting divorce and they have asked him to do so, but he looked at me so pathetic and confessed to me his mistakes and really begged me not to ask for divorce and promised he will become good.Then again I arranged another visa for him and we start living together.But again caught by the police and he got deported to India and on March 2006 I have gone to India for my holidays.Then he came to my parent’s house were I stayed.But again he tried to hug or kiss one 12year girl.Then i decided to end my 12years married life.But he is not at all ready to give divorce.we do not have children.So based on all these facts I desperately need your advice and the ways for doing Fazeh or Khulh as it is totally difficult to get Talak from his side. More over for the last 7months I don’t know where is he? Can I do Fazah or Khulh?I also would like to know whether it is approved by Indian Jurisdictions or not?
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.
First of all, we ask Allaah to make a way out to your difficulty, solve your problems and relieve your hardship.
As regards your questions, we have already clarified in Fatwa 88330that the wife is obliged to advise and admonish her husband if he is disobedient and sinful. If she is harmed by his persistence in sinning and in being negligent, she may ask for divorce orKhul')divorce in return for compensation the wife pays to the husband( by giving him back his dowry or whatever they agree upon. In case he refuses, she may take the matter to the Muslim judge in order to oblige him to divorce her, or he ]the judge[ may himself invalidate the marriage contract between them as clarified in Fatwa 89039.
Since your husband is as you mentioned in the question, then we advise you to separate from him by taking the matter to the courts of justice or any institution which may act as such in your country and grant you divorce.
Concerning the legal procedures in your country, we are not aware of them, as this is not the speciality of our site. Rather, you should consult specialist people in the field, like legal attorneys and the like.
Allaah Knows best.
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