Answered by Mufti Mohammed Tosir Miah
I am about to apply for a khula-my husband sexually abused me several times, doesn’t provide for me and my child on a regular basis, does not pray salah, has had marital affairs several times- and the list goes on. I believe I have a right to a divorce so want to know if I HAVE TO or why at all pay the dowry back please. I am now left as single mum providing for my son (who he doesn’t pay for at all as yet) living on my own in rented accommodation money isn’t going to be easy for me now. Considering that he ruined the marriage and his actions led to it I don’t understand how it would be fair for me to pay him anything in fact he should really pay me if anything.
A Khula is an agreement between the husband and wife to dissolve the contract of marriage in lieu of compensation paid by the wife.
Allah states in the Quran: “…It is not lawful for husbands to take anything back which they have given them except when both parties fear that they may not be able to follow the limits set by Allah; then if you fear that they both will not be able to keep the limits of Allah, there is no blame if, by mutual agreement the wife compensates the husband to obtain divorce. These are the limits set by Allah; do not transgress them, and those who transgress the limits of Allah are the wrongdoers.” (Surah Al Baqara: 229)
From the above ayah it is clear that Khula can only be carried out with the consent and agreement of both the husband and wife. The wife does not have the jurisdiction to enforce Khula without the consent of her husband.
In regards to the compensation, if the husband was at fault (which lead to the khula), then it is undesirable for him to demand compensation in return for a divorce. Allah states in the Quran: “If you wish to marry another wife in place of the one you already have, do not take back anything of what you have given her even if it be a heap of gold…” (Surah Nisa v.20)
Furthermore, there is a statement from Imam Zuhri (RA) who says that a husband will be compelled to return the compensation he took from his wife if he had been at fault. (Musanaf Abdur Razzaq p.382 v.6)
However, if the husband did take compensation in the situation where he is at fault, it will be considered permissible, although Makruh. (Hidayah p.404 v.2)
However, if the wife was at fault, then it is undesirable for the husband to take from her more than he had given her (dowry) although it is permissible to take extra. (Hidayah, Ibid)
An example of this can be found in a hadith where once Jamilah Bint Saluul came to the Prophet of Allah Sallallahu Alahi Wasalam wanting a khula from her husband. The Prophet of Allah Sallallahu Alahi Wasalam told her to return the garden which she took from her husband as the dowry, back to him. (Sunan Ibn Majah p.148 v.1)
However if the couple cannot come to an agreement the wife may take her case to an Islamic Shariah Council who will evaluate the arguments and evidences presented and then come to a verdict which will be binding on all parties as in the case of the wife of Thabit (radiallahu anhu) at the time of the Prophet Sallallahu Alahi Wasalam. (Sunan Abi Dawood )
An annulment of marriage can be effected in any of the following situations:
The husband is missing completely
The husband is absent with no known whereabouts
The husband is incapable of maintaining his wife
The husband is unwilling to maintain his wife
The husband oppresses the wife such that he does not fulfil her rights
The husband is castrated
The husband is impotent
The husband is insane
The husband is afflicted with leprosy or any other illness which makes living with him difficult
The choice of an immature when he/she attains maturity
Husband or wife become apostate
Foster relationship which only becomes known after Nikah. (The Complete System of Divorce p.213)
Contact Islamic Shariah Council, Dewsbury.
Maulana Yaqub Qasmi
Home/Office: +44 (1924) 464523
Regarding your situation, you should contact the aforementioned number and arrange a cancellation of the marriage. In a situation where the case is taken to the Islamic Shariah Council for a cancellation of the marriage you will not be required to give anything back to your husband.
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham.