(#193)
Question
Salam brother / sister,
I need some advice regarding khula. My nikkah was done in ….. The sheikh that did it didn’t provide a nikkah certificate at all . we are not legally married either . Since i got married my husband did not stay in the same room as me , which i found very strange but he advised me that he has sleeping issues that he cant sleep in the same room . My mother n law lived with us for 4 years . I spoke to her many times about this issue but she ignored it and asked me not to think about it too much . Our relationship was very superficial. I suffered depression, anxiety and panic attacks regularly. I was so unhappy with him . We have 2 kids and i have finally spoken out to my parents about it . Im getting support from my parents . we have been living separately for at least 5 months . i want to respectfully leave this marriage in peace . he is telling me that if we are not legally married than he doesn’t need to give me a divorce but my understanding is if we are islamically married he needs to do his part . recently he is fighting for kids but i have asked him to apply for parental order and he is not happy about that . I have tried very hard to make this process peaceful and easy but i dont know what else to do . I just need to understand how does it work in our shariya law .
Answer
بسم الله الرحمن الرحيم
السلام عليكم و رحمة الله و بركاته
حامدا و مصليا و مسلما
Muhtaramah
We have received your query dated 04/01/2024 , our response is as follows:
Based on the information furnished by yourself, regardless of whether you are legally married or not, your current Nikahwill be regarded as valid and you are married to your husband (unless your husband had issued a divorce which we are unaware of). Your understanding is correct, if you wish to leave your husband he will need to issue you a divorce.
In the event where a marriage does not appear to be succeeding due to the husband oppressing his wife and not fulfilling her rights of maintenance, etc, the Shari’ah’s directive is that all attempts should be made to solve the couple’s differences by way of negotiation and reconciliation. Due to children being involved, reconcilation is of utmost importance. One should not give up on reconcillation, but rather discuss the matter with Ulama and try to come to some common ground.
If all attempts at reconciliation prove fruitless, then Shari’ah gives the wife the right to request her husband for a Talaaq, either directly or through the medium of Khula (Talaaq in exchange for a sum of money, etc).[1]
If you have any further queries then please do not hesitate to get in contact with the Darul Ifta.
And Allah Ta’ala knows best
Answered by:
Abdushakoor Salim
14th Rajab 1445
27th January 2024
Checked and approved by:
(Mufti) Muhammad Irshad Motara
[1] بَابُ الْخُلْعِ (هُوَ) لُغَةً الْإِزَالَةُ، وَاسْتُعْمِلَ فِي إزَالَةِ الزَّوْجِيَّةِ بِالضَّمِّ وَفِي غَيْرِهِ بِالْفَتْحِ. وَشَرْعًا كَمَا فِي الْبَحْرِ (إزَالَةُ مِلْكِ النِّكَاحِ) خَرَجَ بِهِ الْخُلْعُ فِي النِّكَاحِ الْفَاسِدِ وَبَعْدَ الْبَيْنُونَةِ وَالرِّدَّةِ فَإِنَّهُ لَغْوٌ كَمَا فِي الْفُصُولِ
رد المحتار، ٤٣٩/٣
(وَإِذَا تَشَاقَّ الزَّوْجَانِ وَخَافَا أَنْ لَا يُقِيمَا حُدُودَ اللَّهِ فَلَا بَأْسَ بِأَنْ تَفْتَدِيَ نَفْسَهَا مِنْهُ بِمَالٍ يَخْلَعُهَا بِهِ) لِقَوْلِهِ تَعَالَى {فَلا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ} [البقرة: ٢٢٩] (فَإِذَا فَعَلَا ذَلِكَ وَقَعَ بِالْخُلْعِ تَطْلِيقَةٌ بَائِنَةٌ وَلَزِمَهَا الْمَالُ) لِقَوْلِهِ – صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ – «الْخُلْعُ تَطْلِيقَةٌ بَائِنَةٌ»
العناية شرح الهداية، ٢١١/٤
