My wife has committed zina with her ex-boyfriend. Can I divorce her? What is the ruling of the mahr?

Answered according to Hanafi Fiqh by Askimam.org
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Assalamu Alaikum,

Q. My wife committed adultery with her ex-boyfriend, I have 3 children, so need an Islamic solution.

 

1. My wife committed adultery and after that now she is staying at her father’s home with my three children and she wants to live there don’t want to come back and asking for “Khulah” divorce.

2.  I am not giving her divorce because of my children, and if i give divorce will it be an act of sin? as divorce discouraged in Islam?

3. What will be the ruling about my children if I divorce her? But every month I am sending money to spend for my children and often pay a visit to spend time with children and in Eid ul Fitr I bring my 3 children to my home to stay with me for a few days, cause I am missing them a lot.

4. It is difficult for me to continue this relation cause, I can’t believe her anymore. It is almost 5 month and Allah is helping me to keep patience. But I want to give divorce and 20 days back she also asked for divorce  and now 2 days back when i told her that I will give you divorce very soon and now she is telling me that she has no hurry.

5. And what about the amount of “Mahr” which is pending? If she asked for “Khula” should I pay the due money at the time of Khulah or ask her for time to pay or can i ask to leave the due amount of Mahr.

6. I told her to ask Allah for forgiveness cause it is a great sin in Islam, but I don’t know whether she did it or not. After the event she didn’t talk to much with me I tried but she respond very little. But she told me that she still has a strong feeling for his Xboyfriend and don’t have the same feeling for me but have some emotion for me as we have a 12 years of married life.

7. And what is the ruling of New Marriage after divorce ? right now I m 39 years old and my mother is living with me and she is in old age and sick, so I need someone to take care of her as I have a daily job to do, so what should I do ?  

8. I can’t discuss this issue anyone in my locality that her sin will be known by other people causes lots of people to know me and my wife. So, i want it to be secret “If allah wills”.

9. What is best way to give divorce in Islamic way (the sunnah)? Though I belong to Hanafi madhab but I follow which more authentic and convincing according to scholar.

So, please guide me the best possible Islamic solution for me to come out from this situation. 

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

Brother in Islam,

We are sorry that you are caught up in this miserable situation. We pray that Allah gives you strength to overcome your hardship. Aameen.

According to what is mentioned in the query, we understand that your wife has committed zina and you want to divorce her for committing this heinous act. You state that you have made sabr for five months and thus far did not divorce her. However, more than 20 days ago, your wife has also asked you for Khula. You also state that she doesn’t feel for you the same as she feels for her ex-boyfriend. You also state that you don’t trust her anymore and want to divorce her.

Brother, you have been married to your wife for 12 years and have three children. Will your divorce not affect your Children mentally and socially? Will they be able to lead a healthy social life without their fathermother by their side?

Considering all of the above, if your wife has repented from the act of zina, made sincere tauba and agrees to cut off all ties to her ex-boyfriend and plans to lead a pious life ahead, we would advise you to give her a chance and forgive her.[i] Indeed, Allah will reward you for your forbearance. We also advise you to look for an influential member of her family to intervene in the matter and discuss the matter with her.

Nonetheless, if you decide to divorce her, you won’t be sinful in doing so. Even after the divorce takes place, you will be responsible for the maintenance of the child; in case of a male until the age he is able to earn on his own, while in case of a female until she gets married.[ii] [iii] 

Khula is when the wife offers to return the mahr in exchange of the divorce. Accordingly, you may ask your wife to let go her haq of mahr in exchange of the divorce. This agreement of Khula will terminate the nikah.[iv]

Whether you decide to stay in nikah with her or decide to issue a talaq, either ways conceal and try to hide her sin from others.

 

And Allah Ta’āla Knows Best 

Naved Akhtar ibn Shabbir.

Student – Darul Iftaa

Shillong, India. 

Checked and Approved by,

Mufti Ebrahim Desai.

 

 


[i] وَفِي الْمُجْتَبَى مِنْ آخِرِ الْحَظْرِ وَالْإِبَاحَةِ: لَا يَجِبُ عَلَى الزَّوْجِ تَطْلِيقُ الْفَاجِرَةِ وَلَا عَلَيْهَا تَسْرِيحُ الْفَاجِرِ إلَّا إذَا خَافَا أَنْ لَا يُقِيمَا حُدُودَ اللَّهِ فَلَا بَأْسَ أَنْ يَتَفَرَّقَا (البحر الرائق شرح كنز الدقائق، ج 3, ص115)

 

[ii] نفقة الأولاد الصغار على الأب لا يشاركه فيها أحد (الجوهرة النيرة, 1560)

 

[iii] وأما الذكور من الأولاد إذا بلغوا أحد الكسب ولم يبلغوا في أنفسهم، فأراد الأب أن يشغلهم في عمل ليكسبوا وينفق عليهم من ذلك فله ذلك. وكذلك لو أراد الأب أن يؤاجره في عمل أو حرفةٍ فله ذلك؛ لأن فيه منفعة للصغير؛ لأن يتعلم الكسب. أما قبل أن يتعلم أو بعدما تعلّم ولكنه لا يحسن العمل فنفقته على الأب؛ لأنه إذا كان لا يحسن العمل لا يستعمل في الأعمال غالباً وظاهراً، فكأنه لم يتعلم أصلاً.

وأما إذاكان الولد من الإناث فليس للأب أن يؤاجرها في عملٍ أو حرفة لأن المستأجر لحلاوتها وذلك منهيٌ في الشرع

(المحيط البرهاني، ج 3, ص 571)

 

[iv] إذا تشاق الزوجان وخافا أن لا يقيما حدود اللّه فلا بأس أن تفتدي نفسها منه بمالٍ يخلعها به، فإذا فعل ذلك وقعت بالخلع تطليقةٌ بائنةٌ

(اللباب في شرح الكتاب,1278)

 

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