'' Our Lord ! grant us good in this world and good in the hereafter and save us from the torment of the Fire '' [Ameen]
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{in Arab} :->
Rabbanaa aatinaa fid-dunyaa hasanatan wafil aakhirati hasanatan waqinaa 'athaaban-naar/-
(Surah Al-Baqarah ,verse 201)
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
NajimudeeN M
