A Woman Requests a Khula' from the Husband then Finds Out that She is Pregnant

A Woman Requests a Khula' from the Husband then Finds Out that She is Pregnant

Sh. Alī Ar-Ramlī حفظه الله

Question: May Allāh bless you, O our Shaykh. We have a question,  if you will. A woman sought a Khula' from her husband and the husband granted it. However, after a week the woman found out that she was pregnant. What is upon them and what is the ruling on their marriage?

Answer: The Khula' is correct and the affair is over. She is pregnant now so it is not permissible for her to marry until she gives birth to the child. This is all that is required from her.
Once she gives birth she can marry. As for the Khula', it is sound and the affair has ended.

Translated by Raha Batts
Audio: Telegram group

The Regulations of Khul‘: Dissolution of Marriage

The Regulations of Khul‘: Dissolution of Marriage

Author:Shaykh Saalih bin Fawzan bin ‘Abdullah al-Fawzan
Source:His Book Al-Mulakhas al-Fiqhee: vol. 2, pg. 381-385
Produced by:al-manhaj.com

Al-Khul‘ is the separation of a husband from his wife, while receiving a return (of monetary gain from her) and using specific statements (to bring about the dissolution of the marriage).
Al-Khul‘ (literally removal or shedding off) was termed with this (descriptive named) because the woman in essence seeks to remove herself from her husband as she would remove or shed off a garment since spouses are the garments of one another.
Allaah, the Most High says (what means): “It is made lawful for you to have sexual relations with your wives on the night of fasting. They are a Lîbaas (i.e. body cover) for you and you are a Libaas for them.” [Surah Al-Baqarah: 187]
It is commonly held that marriage is what binds the spouses together and cultivates a relationship built upon Ma‘roof (righteousness in all of its forms). Stemming from this relationship a family takes form and a new generation is produced.
Allaah the Most High says: “And among His Signs is this, that He created for you wives from among yourselves, that you may find repose in them, and He has put between you affection and mercy. Verily, in that are indeed signs for a people who reflect.” [Surah Ar-Room: 21]
When this (relationship) is not attained in the marriage – affection and repose is not achieved for one or both of the spouses’ and the situation is foreboding with little chance of reconcilement then the husband is ordered to release her in kindness.
Allaah the Most High says: “…either you retain her on reasonable terms or release her with kindness.” [Surah Al-Baqarah: 229]
“But if they separate (by divorce), Allaah will provide abundance for every one of them from His Bounty. And Allaah is Ever All­ Sufficient for His creatures' need, All­ Wise.” [Surah An-Nisaa: 130]
But if the husband finds repose and comfort, but the wife does not find the same in him as a result of her disliking his traits, physical appearance, deficiency of religion or she fears that she would displease Allaah by not fulfilling his (husband’s) rights and needs; then in this case she may request a separation and dissolution from him while extending to him an offer of monetary gain so as to liberate herself from him.
Allaah the Most High says: “…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 (to achieve Al-Khul').” [Surah Al-Baqarah: 229]
This means:
That if the husband or the wife know that they will not fulfill the ordainments of Allaah towards each other if they remain in union, leading to the transgression of the husband on the woman, causing her to disobey him (refuse his cohabitation), then there should be no harm in the woman liberating herself from him by appeasing him financially (to gain discharge). There is also no harm in the husband accepting the remuneration and then letting her go.
The Ruling of al-Khul‘:
The woman can free herself from her husband completely in a just process that is beneficial to both parities. The husband is to cooperate with her in this regard. If he loves her then it is preferred for her to remain with him and have Sabr and not seek to separate.
Khul‘ is Mubaah (permitted) when the proper reasons – alluded to in the previous verses are found. These reasons include both parties fearing that if they remain in union that they will not fulfill the ordainments of Allaah towards each other. (On the other hand) it is Makrooh (disliked) and in the opinion of some scholars it is Haraam (prohibited) to seek Khul‘ without due cause. To this effect, Allaah’s Messenger (saws) said:
“Any woman who asks her husband for a divorce (khul‘) without due cause, then the scent of Paradise is Haraam for her (i.e. she will not smell it).”
[Reported by the five except an-Nasaa’ee] [1]
Shaikh Taqee-ud-Deen (Ibn Taimiyyah) said: “The Khul‘ which is in accordance to the Sunnah is that the woman has an abhorrence to the man (her spouse). She ransoms herself from him in the same way a captive is ransomed.” [2]
If the husband hates her but retains her hoping that she will seek to ransom herself (in so doing producing a profit for himself) then he is Dhaalim (Oppressive and tyrannical). Any monetary gain he receives is thus Haraam and the Khul‘ is invalid (i.e. he is to divorce her and not do Khul‘). Allaah, the Most High says:
“O you who believe! You are forbidden to inherit women against their will, and you should not treat them with harshness, that you may take away part of the Mahr you have given them…” [Surah An-Nisaa: 19]
This means that no harm should be inflicted while living together so as to compel her to give back the dowry or not ask for a marital right that she is due by her husband unless it is a censure from the husband to a woman who has fornicated and he seeks to take back what he had graced her with. This instance is sanctioned by Allaah. Allaah says:
“O you who believe! You are forbidden to inherit women against their will, and you should not treat them with harshness, that you may take away part of the Mahr you have given them, unless they commit open illegal sexual intercourse.” [Surah An-Nisaa: 19]
Ibn ‘Abbaas (raa) said explaining this verse:
“This verse pertains to a man who has a woman whom he hates to be in companionship with but he owes her payment of her dowry. So he harms her so that she will relinquish seeking the dowry from him so as to free herself from him. Allaah has prohibited this action when He said: ‘…unless they commit open illegal sexual intercourse.’ Zinaa (adultery) is what is implied. In this instance the husband can take back what he had given her as dowry. He is to compel her to relinquish all the dowry he gave to her and then grant her the Khul‘.”
The Evidence for the Permissibility of al-Khul‘:
The evidence for the permissibility of al-Khul’, when there is a valid cause for it, can be found in the Qur’aan and Sunnah and the Ijmaa‘ (consensus of the scholars):
As for the Qur’aan, we find evidence in the previously mentioned verse wherein Allaah says:
“…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 (to achieve Khul').” [Surah Al-Baqarah: 229]
As for the Sunnah, then we find in the authentic narrations:
Narrated Ibn 'Abbas (raa): The wife of Thaabit bin Qais came to the Prophet and said, "O Allaah's Apostle! I do not blame Thaabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him)." On that Allaah's Apostle said (to her): "Will you give back the garden which your husband has given you (as Mahr)?" She said, "Yes." Then the Prophet said to Thaabit, "O Thaabit! Accept your garden, and divorce her once." [Al-Bukharee] [3]
As for Ijmaa’, then we note that Ibn ‘Abdul-Barr (rahimahullaah) stated: “We do not know of anyone who disagreed (on the validity of Khul‘) except al-Muznee - he is the only one who has stated that the verse [Al-Baqarah: 229] was abrogated by: ‘But if you intend to replace a wife by another and you have given one of them a Qintar (of gold i.e. a great amount) as Mahr, take not the least bit of it back; would you take it wrongfully without a right and (with) a manifest sin?’ [Surah An-Nisaa: 20]”
The following Shuroot (prerequisites) must exist to ensure the validity of al-Khul‘:
1. A valid (legally acceptable) remuneration must be extended
2. The remuneration must be to the spouse who can (is the one to) agree to the separation
3. The husband is not allowed to treat the woman harshly – except where deemed proper – so as to force her to pay him
4. The separation is to be stated with the expressed articulation of Khul‘. To use the statement of Talaaq or that which is known to be a statement of Talaaq with the intention of Talaaq is to be counted as Talaaq (and not a khul‘), which eliminates the man’s power to reclaim her as his wife. He may remarry her with a new ‘Aqd (marital contract and Dowry) even if she has not taken a husband other than him as long as he has not pronounced Talaaq thrice upon her
5. If the man pronounces the separation with the statement as that of Khul‘ or Faskh (dissolution) or ransom (yourself from me) – and does not intend divorce then it is a dissolution of marriage that is not incorporated in the Talaaq count. This is reported from Ibn ‘Abbaas. His proof was from the following verses.
Allaah the Most High says: “The divorce is twice…” [Surah Al-Baqarah: 229]
Then later on Allaah said: “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: 230]
So notice Allaah mentioned two divorce pronouncements, then mentioned the Khul‘ then mentioned another divorce pronouncement. Therefore we assess that Khul‘ does not count as a Talaaq pronouncement or else the count would be four (exceeding the limit of three).

Footnotes:

[1] Reported from Thawbaan by Abu Dawood (2226), at-Tirmidhee (1190) and Ibn Maajah (2055).

[2] Majmoo‘ al-Fataawaa (32/282)

[3] Reported by Al-Bukhaaree from Ibn ‘Abbaas [(Arab) vol. 9, pg. 389, no. 5273 and ( Eng. ) vol. 7, no. 197]  

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.. 

[End quote from page 290]

[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

Questions & Answers on Khula'

Questions & Answers on Khula'

Thursday, 06 January 2011 18:14 Abu Abdullah

The following questions were asked for me by brother Abduililah Lahmami (student of Shaykh Obayd) to the esteemed Shaykhs Muhammad Abdulwahaab al Banna and Shaykh Obayd al Jaabiri.

As Salaamu Alaikum wa Rahmatu Allah wa Barakatuh: Oh esteemed Shaykh, may Allah T'ala reward you and preserve you. I humbly ask you Shaykh  to please benefit me and those that I share this with answers to the following important matter as it is rampant here in my town. Jazak Allahu Khair.

The following answer to these questions are from Shaykh Muhammad Abdulwahaab al Banna

Question: In dar kufr does the imam have the right to grant khul and can someone other than him grant khula?

Answer: If there is not a Muslims leader to return to then it is allowed for you in your situation to go to the Imam of the mosque.

Question: if a wife wants khul and the husband refuses, can he be made to seperate from her and in the land of the kufar who has the right to make this separation?

Answer: The judge after he is presented the information judges whether she has a case for Khul', if she does then it is granted and is binding. If she is not able to live with her husband then she goes to the judge and explains to him the reasons since Islam does not allow a women to be tortured by her husband.

Question: Once the khul is granted is it an immediate divorce and must the woman and man separate or does she reside with him while in iddah?

Answer: There is no 'iddah in Khul' o­nce she gives back the mahr (dowry) and then she is granted the khul' by the judge.

Question: Does she have a iddah of 30 days and may men indirectly express interest until the end of the iddah?

Answer: She is no longer married o­nce the khul' is granted

Question: There have been many khulas granted here in the U.S. while the sister was pregnant and it was finalized, is this permissible?

Answer: Yes

Question: Is there iddah for the woman who was given talaq or had a khula who just had a baby?

Answer: Talaq 'iddah is 3 cycles? Khul' no 'iddah even if she just had a baby.

Question: If the husband delays the salah, is this grounds for khula?

Answer: Khul' Is a serious matter and should not be taken lightly, if the husband commits fornication, drinks alcohol then these are grounds for khul' if the husband does not accept leaving these. Also if he delays the prayer then remind him of Allaah and advise him. o­nce must also consider the fate of the children in rushing to do a khul' since who will be their father?

Question: If the husband leaves the country for another country, can the wife get a khula?.

Answer: I see that the maximum time period is 4 months if he is away for longer than this period and she can't cope then she should tell him to take me with you or leave me.

Question: Does the woman have to cover in front of her husband while in iddah from a khula'?

Answer: There is no 'iddah from a khul'

Question: Is is permissible for a woman o­n salafiyyah to marry a hizbee or continue to be married to a man of deviance (ikhwani) as long as he is not shia, sufi or some other extreme deviance?

Answer: Sorry no answer The next answer is from Shaykh Obayd al Jaabiree

Question: After divorce does the man have to provide money to suport his children or should he just buy what is needed to be sure the child/children gets what they need?

Answer: Yes he must provide for his children after the divorce in terms of dress and money for their well being. As for a place to stay then this is not up to him if he has divorced his wife.

Question: Once last thing Shaykh. In regards to aqeeqah. Does the head of a female child get shaved, I was told it was disliked to do so? And if an aqeeqah can not be afforded now, does o­ne still shave the childs head and all other actions of aqeeqah and slaughter later or is all this done at the time of slaughter? No answer sorry

For those questions that were not answered, they were not asked of the esteemed Shaykhs. InshaAllah answers to them will come.