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Status of Nikah after Khula through Court of Law

Answered as per Hanafi Fiqh by ShariahBoard.org

Assalamualaikum Warahmatullah

I and my family are currently residing in America. My sister’s Nikah was performed to the son of my father’s cousin back in the year 2008 but the rukhsati did not take place as we had asked for a gap to let my sister complete her education.

During these years my sister’s husband behavior with my sister was not good, he irritated her so much that developed hatred for him (instead of love). My sister seeked help from Judicial Court in 2012 for getting Khula‘. The court issued a few notices for him to appear and even published an ad in the newspaper but he did not show up. So finally the court finished the case and issued a decree of divorce which was also submitted in Union Council. Now after 4 years, there is a proposal from a man who wants to marry my sister. My question is whether she is considered free to marry again, since her ex-husband did not show up in the court and the court did the default judgement. Also, in the past he had refused to issue divorce to her despite of having many conversations with him and his family.

Walaikumassalam Warahmatullah

الجواب وباللہ التوفیق

As per the situation described in the question, if her husband has not issued a divorce to his wife in any way such as in writing, verbally or through an attorney, then your sister has not been released from his Nikah, from a Shar‘ai standpoint. It will be considered impermissible to perform her second Nikah .

We recommend that you contact a Darul-Qadha to get further clarification and possible resolution of this issue.

أسباب التحریم أنواع … وتعلق حق الغیر بنکاح أو عدۃ۔ (الدر المختار ۳؍۲۸ کراچی، ۴؍۱۰۰ زکریا)

أما نکاح منکوحۃ الغیر – إلی قولہ – لم یقل أحد بجوازہ، فلم ینعقد أصلاً۔

(شامي مع الدر ۳؍۵۱۶ کراچی، ۴؍۲۷۴ زکریا، کذا في الفتاویٰ الہندیۃ ۱؍۲۸۰ زکریا، البحر الرائق / باب العدۃ ۴؍۲۴۲ زکریا، بدائع الصنائع ۳؍۴۵۱)

فقط واللہ اعلم بالصواب

This answer was collected from Shariahboard.org. It was established under the supervision of the eminent faqih of our era, Hazrat Shah Mufti Mohammed Navalur Rahman damat barakatuhum.

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