A person performed 2nd marriage without the knowledge of his first wife. When 1st wife found about his marriage, she asked her husband to divorce her. Upon her husband’s refusal, she contacted the Judiciary System (supreme court) to help her with this. Supreme court issued notice to her husband to appear in court several times but husband didn’t show up. Finally, the court ruled that they were divorced on the basis of Khula. The question that I want to ask is if this divorce is valid because husband didn’t want to divorce her 1st wife and he didn’t sign any documents which would validate this divorce? Please advise.
Assalaamu Alaykum Wa Rahmatullaahi Wa Barakaatuhu
Q: Kindly explain in detail what is Khul’a. Will the Khul’a be valid if the
husband does not agree?
A: Khul’a is defined as follows: ‘his (husband’s) acceptance of wealth in
exchange of his possession (of the woman’s hand) in the marriage. (Fathul
Qadir vol.6 pg.57; Rashidiyya).
The following verse forms the basis of Khul’a: ‘If you fear that they (the
spouses) may not uphold the boundaries of Allah, then there is no harm upon
the two of them (spouses) in the ransom offered by her (wife).’ (1:229)
Ibn Abbaas (Radhiallaahu Anhu) narrates that the wife of Thabit ibn Qais
(RA) came to Nabi (Sallallaahu Alayhi Wasallam) and said, ‘Regarding Thabit
(Radhiallaahu Anhu), I do not fault his character nor his Deen (religion),
but I fear being ungrateful in Islam. I want to return his garden to him (in
exchange of Talaaq).’ Nabi (Sallallaahu Alayhi Wasallam) asked, ‘Do you
really want to do this?’ she replied, ‘Yes’. Nabi (Sallallaahu Alayhi
Wasallam) said (to her husband), ‘She wishes to return your garden to you
(in exchange for Talaaq). He asked, ‘Do I have the right to (accept it)?’
Nabi (Sallallaahu Alayhi Wasallam) replied, ‘Yes’. He said, ‘Then I accept
(the garden in exchange of the Talaaq). (Musannaf Abdul-Razzaak vol.5
pg.391; HM Saeed)
The above can be further understood by the following: 1. Allaamah Kaasaani
(RA) states ‘contracting for Talaaq by means of an exchange.’
(Badaai-us-Sanaaie; Ahsanul Fataawa vol.5 pg.382). 2. Imaam Zaylaa’ee (RA)
states, ‘None of them have the right to compel their partner against their
will.’ (Tibyaanul Haqaaiq; Ahsanul Fataawa vol.5 pg.382; HM Saeed) 3.
Shamsul Aimmah Sarakhsi (RA) stated, ‘Khul’a is permissible in the presence
of the Sultan, i.e. presiding authority, or anyone else, because it is a
contract based on mutual agreement like all other contracts.’ (Mabsoot;
Ahsanul Fataawa vol.5 pg.385; HM Saeed)
>From the above quotations of the noble Qur’aan, Ahaadith and Fiqh
(jurisprudence), it is clear that Khul’a is a contract by mutual consent
between the husband and wife. The wife cannot unilaterally institute Khul’a
without the consent / agreement of the husband. However, if the husband is
spiteful and withholds the divorce, the wife may contact a reliable Judicial
committee to annul the marriage. If there are valid grounds, the annulment
will be considered.
and Allah Ta’ala Knows Best
Mufti Ebrahim Desai