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Khula because of an affair

Answered as per Hanafi Fiqh by DarulIftaBirmingham

I am 65 years old, and have been having an affair with a married woman with four children for the past one year as my wife is sick and cannot fulfil her marital duties. She knows about my affair. I want to marry this woman, and keep her as my second wife. She has asked her husband for a khulla, but he refuses to divorce her. He knows that she is seeing another man. Is there any way she can get a khulla, so that we can marry?

In the name of Allah, Most Compassionate, Most Merciful.

Allah states in the Quran, “And do not commit adultery for, behold, it is abomination and an evil way.”(Surah Israa: 32)

Adultery is a major sin and the fact that your wife not being able to fulfill her marital duties does not justify your actions. You must make immediate repentance and make firm intention not to indulge in this act.

In regards to khula, this 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 conclusion there is nothing that you or she can do to obtain khula if the husband does not wish to do so. The best advice for you is to stay away from this woman and continuously repent for your previous actions. The Prophet (sallallahu alayhi wa sallam) has considered a person who comes between a man and his wife as not amongst us i.e. Muslims. Abu Hurayrah (radi allahu anhu) narrates that the Prophet (sallal lahu alayhi wa sallam) said: If anyone corrupts (instigates) the wife of a man or his slave (against him), he is not from us (Abu Dawood: 2453).

Only Allah knows best.

Sayeedur Rahman

Darul Ifta, Birmingham

This answer was collected from DarulIftaBirmingham.co.uk, which is run under the supervision of Mufti Mohammed Tosir Miah from the United Kingdom.