Is Khul’ considered a Divorce Pronouncement?

Is Khul’ considered a Divorce Pronouncement?

 

By Shaikh-ul-Islaam Ibn Taimiyyah (rahimahullaah)

From Majmoo' al-Fataawaa (vol. 32, pg. 289 – 290, 292)

[Begin Quote from Page 289]

He (rahimahullaah) was asked about al-Khul‘: “Is Khul‘ considered divorce and is it counted as o­ne of the three divorce pronouncements? Is it (Khul‘) still considered valid without intending divorce and saying the word Talaaq (or its equal)?”

He (rahimahullaah) answered:

This issue has been an issue of great dispute between the Salaf (predecessors) and the Khalaf (contemporaries). The famous opinion in the Madhhab of Al-Imaam Ahmad and his companions is that it (khul‘) is a permanent separation and complete dissolution of the marriage that is not to be incorporated as being from the three Talaaq pronouncements.

Therefore if the man was to perform Khul‘ ten times (to the same woman, remarrying her after each Khul‘) then this is allowed for him as long as he remarries her with a new wedding contract (and its requisites – Dowry, etc.) even if she has not wed another man other than him (between each consecutive remarriage). This is also o­ne of the reported statements of Ash-Shafi‘ee. This has also been chosen and sponsored by a large majority of the Sahaabah. Another group of Sahaabah sponsored it but did not choose it. This is the position of the Jumhoor (overwhelming Majority) of the Fuqahaa of Hadeeth – Ishaaq bin Rahawiyah, Abu Thawr, Dawoud, Ibnul Mundhir, and Ibn Khuzaymah. It is also authentically established as a statement of Ibn ‘Abbaas (radyAllaahu ‘anhu) and his companions – Tawoos and ‘Ikrimah. The second opinion (claims) that it (khul‘) is to be counted as o­ne of the three divorce pronouncements. It is (also) reported as the statement from many amongst the Salaf. It is the opinion of Abu Haneefah, Maalik and o­ne of the opinions of Ash-Shafi‘ee. Some claim it was his most recent verdict. It is also reported as o­ne of the statements of Ahmad. They report narrations from ‘Umar, ‘Uthmaan, ‘Alee and Ibn Mas‘ood (to support their position). But we find that Imaam Ahmad and numerous others from the Imaams of Knowledge of Hadeeth (Scholars of Hadeeth) – Ibnul Mundhir, Ibn Khuzaymah, al-Bayhaqee and others – have declared (with evidence) that the narrations attributed to them (‘Umar, ‘Uthmaan, ‘Alee and Ibn Mas‘ood) are da‘eef (Weak and unsubstantiated). The o­nly authenticated narration is that which is reported from Ibn ‘Abbaas (radyAllaahu ‘anhu) that Kkul‘ is Faskh or dissolution and not Talaaq. Ash-Shafi‘ee himself stated we do not know the condition of the reporter of the narration of ‘Uthmaan – whether he is Thiqah (trusted) or other than Thiqah?

Therefore we establish that they (the holders of the second opinion) did not authenticate the narrations attributed to the Sahaabah. o­n the other hand they admitted that they did not know the authenticity of the narrations.

Further, we know that no o­ne from the scholars authenticated those narrations attributed to the Sahaabah stating that Khul‘ was to be counted (and dealt with) as an irrevocable Talaaq that is counted as o­ne of the three pronouncements.

Furthermore, we report the Saheeh narration that ‘Uthmaan ordered a woman in the state of Khul‘ to wait o­nly o­ne menstrual cycle (before remarrying) to have Istibraa’ (prove that she is not pregnant from the previous husband). He stated to her: “You do not have ‘Iddah or waiting period (other than Istibraa’).” This proves that he deemed khul‘ a complete separation that was not divorce, since (the regulations of) Talaaq for the woman who has been entered upon (cohabited with her partner) that she must wait three Quroo’ (menstrual cycles) as is explicitly stated in the Qur’aan and the consensus of the Muslims (scholars). This of course is dissimilar to the state of Khul‘.

In the authentic Sunnah and Athaar (narrations) of the Sahaabah, we see that the waiting period is Istibraa’. That is the opinion of Ishaaq, Ibnul Mundhir and others. It is also o­ne of the two reported statements of Ahmad. Ibn ‘Abbaas also permitted the return of a woman who had been divorced twice and was separated finally with a khul‘ to return to her husband without marrying another man before returning to him. Ibraheem bin Sa‘d bin Abee Waqaas asked Ibn ‘Abbaas about this issue when he was appointed by Az-Zubair as the custodian of Yemen. He said to Ibn ‘Abbaas (radyAllaahu ‘anhu) that the majority of Talaaq in Yemen was that of Fidaa’ – woman ransoming herself or Khul‘. Ibn ‘Abbaas (radyAllaahu ‘anhu) responded: “To pay to dissolve the marriage is not Talaaq. People have erred in labeling it.” Ibn ‘Abbaas then recited: “The divorce is twice, after that, either you retain her o­n reasonable terms or release her with kindness.

And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (i.e. to deal with each other o­n a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin o­n either of them if she gives back (the Mahr or a part of it) for her Khul' (divorce). These are the limits ordained by Allaah, so do not transgress them. And whoever transgresses the limits ordained by Allaah, then such are the wrongdoers. And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband.” [Surah Al-Baqarah: 229-230]

Ibn ‘Abbaas then said: “Allaah mentions after (sanctioning) al-Fidyah or Khul‘ after two pronouncements of divorce that if “he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband.” This incorporates al-Fidyah specifically and other than it in general. If Fidyah (Khul‘) were counted as Talaaq then the count would have been four. This is also the famous statement reported from Ahmad and from the companions of Ibn ‘Abbaas.. 

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[Begin Quote from Page 292] 

Those from amongst the Fuqahaa who followed what was (erroneously) attributed to the Sahaabah that Khul‘ is to be counted as an irrevocable Talaaq were under the impression that they were authentic narrations. They did not posses the ability (resources) to be critical of these particular Athaar and distinguish the Saheeh from the Da‘eef. o­nly Imaam Ahmad (at that time) and his peers from like caliber scholars possessed the resources to weed out those narrations. Therefore those who reported the statements of the Sahaabah who differed with Ibn ‘Abbaas and his companions from the Sahaabah did not know that there was nothing authentically reported to dispute his authentically reported narrations. [1]
[End Quote from Page 292]
Footnotes:
[1] Translator's Note: For further analysis and discussion see Zaad al-Ma‘aad of Shaikh-ul-Islaam Ibnul Qayyim (rahimahullaah). See volume 5, page 150 – 156 Translated By Yahya Ibrahim