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How Should the Wife Get a Khula?

Answered by: Maulana Yūsuf Badāt

Question:

I am an Indian Muslim age 46. My husband was never happy with our arranged marriage and yet my family forced me to compromise. I tried and pulled it for 17 years (until 2018) and have 3 children. Since 2016 we have had no intimate relationship. He is not paying any kind of maintenance since 2018 nor he wants custody of any of the children. I applied for khul’a, but he is asking for the house and jewellery that is mine, not from his money, as I too was working as a teacher.

The imam of one of the idara in Mumbai supported him and asked me to return the house and jewellery as I have no evidence that I paid for it (it is in my name) being a good wife and trying to save my marriage in all possible ways I handed the house deal to my husband during the time of purchase.

My divorce case is going on in Mumbai court since 2019, but nothing is done yet, as my husband does not appear in court and due to all the lockdowns and things like that, no action is being taken against him.

He is quite a rich man, holding 4-5 properties in his name in south Mumbai. All I want is a divorce/ khul’a from him, as I cannot bear it anymore. He harasses me and my children, by forcefully entering the house. 6 months back he entered the house and beat me to fracture one of my ribs, he bribed the police and shut the case.

In the past 6 years we have had no relationship, nor do we speak to each other. Since 2019 we stay separate. He says he does not want the children nor me and he will only set me free if I transfer my (only) house in his name and give him the jewellery.

What is the ruling according to Islam in such a situation? What am I supposed to do? No Mufti or anyone is coming forward to help me. Is my khul’a valid? Is he a non-maram to me now as he enters forcefully to hit me and takes away things from my house one by one? He has taken some of my jewellery and some expensive accessories of my children that I cannot afford to buy again. Please help me.

In the name of Allah, the Most Gracious, the Most Merciful

Answer:

A wife who has exhausted her efforts to fix the problems in her marriage with no success has a right to khul’a (wife-initiated divorce). Until the formal procedure of alāq, khul’a and or faskh does not take place, you are still considered to be in his nikā.

If you have been abused and marital rights are not being fulfilled then you have a right to end your marriage through the Faskh Al-Nikāḥ procedure if he does not agree to alāq or khul’ā. Since there is also a 6-year separation my advice would be to legally end the marriage in the courts and simultaneously apply for a Faskh Al-Nikāḥ. I advise you to contact the Dār Al-Qaḍā of Muftī Khālid Saifullah Al-Raḥmānī in India as they are a recognized organization that deals with cases like yours on a daily basis.

“If you fear that they cannot keep within the limits of Allāh [in the marriage], there is no blame on them for what she gives up to become free [by seeking khul’a] thereby.” – (Qur’ān 2:229)1

“And if he has divorced her, then she is not lawful to him.” – (Qur’ān 2:230)2

The wife of Thābit ibn Qays (may Allāh be pleased with them) came to the Prophet (peace and blessings be upon him) and said, “O Messenger of Allāh, I do not reproach Thābit ibn Qays in respect of character and religion, but I do not want to be guilty of showing anger to him.” (Her intent was that although Thābit was a good man, she was unable to get along with him and thus might not be able to show him the respect of a husband.) The Prophet (peace and blessings be upon him) asked her about what she had received from him [as a bridal gift]. She replied, “A garden.” He asked, “Will you give him back his garden?” “Yes,” she said. The Prophet (peace and blessings upon him) then told Thābit, “Accept the garden and make one declaration of divorce [agreeing to the khul’a].” – (Nasa’i 3463)3

As far as the property and jewellery are concerned, if they are earned by you and are your property then it is not permissible in Islam for him to take what belongs to you.

“The wealth of another person [and/or believer] is not permissible except with their willful permission.” – (Musnad Aḥmad 21082)4

“And whoever betrays, [taking wealth unlawfully], will come with what they took on the Day of Resurrection [for judgment before Allāh]. Then will every soul be [fully] compensated for what it earned, and they will not be wronged.” – (Qurʾān 3:161)5

Only Allāh knows best

Written by Maulana Yūsuf Badāt

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

1 فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ – سورة البقرة ٢٢٩

2 فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ – البقرة ٢٣٠

3 عَنِ ابْنِ عَبَّاسٍ أَنَّ امْرَأَةَ ثَابِتِ بْنِ قَيْسٍ أَتَتِ النَّبِيَّ صلى الله عليه وسلم فَقَالَتْ يَا رَسُولَ اللَّهِ ثَابِتُ بْنُ قَيْسٍ أَمَا إِنِّي مَا أَعِيبُ عَلَيْهِ فِي خُلُقٍ وَلاَ دِينٍ وَلَكِنِّي أَكْرَهُ الْكُفْرَ فِي الإِسْلاَمِ‏ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم أَتَرُدِّينَ عَلَيْهِ حَدِيقَتَهُ قَالَتْ نَعَمْ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏اقْبَلِ الْحَدِيقَةَ وَطَلِّقْهَا تَطْلِيقَةً – رواه النسائي ٣٤٦٣ ‏

4 لا يحل مال امرئ مسلم إلا بطيب نفسه منه – رواه أحمد ٢١٠٨٢

5 وَمَن يَغْلُلْ يَأْتِ بِمَا غَلَّ يَوْمَ الْقِيَامَةِ ۚ ثُمَّ تُوَفَّىٰ كُلُّ نَفْسٍ مَّا كَسَبَتْ وَهُمْ لَا يُظْلَمُونَ – سورة آل عمران ١٦١

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

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