Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh.  (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

Salaam...brother

I would be very greatful if you could tell me the exact procedures of divorce, everyone has different opinions. My nikaah has been read but I have not lived with him or my ruksathi has not been done and I want to end this. If they wont give it and ask for too much money that I cant afford what happens? what are the procedures of me taking this forward what will the courts do and how long will it take? Some people say it take years is this true..it has already been 6 months and I would like to remarry. Please could you reply soon...

Jazakallah.. 

(There may be some grammatical and spelling errors in the above statement. The forum does not change anything from questions, comments and statements received from our readers for circulation in confidentiality.)

Answer:

Woman seeks divorce before rukhsati

In the name of Allah, We praise Him, seek His help and ask for His  forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is no one (no idol, no person, no grave, no prophet, no imam, no dai, nobody!) worthy of worship but Allah Alone, and we bear witness that Muhammad(saws) is His slave-servant and the seal of His Messengers.

Judging in light of the Quran and Sunnah, the simple answer to your question would be: Yes! A sister whose marriage has not been consummated can seek a divorce by “Khula”. But before embarking on this course one should have full understanding of the subject and must ensure that in doing so is not displeasing Allah SWT.

A - General understanding of the provisions for Divorce

One should understand: that judicious methods should be used so as not to lead to separation, as far as possible, however; if separation does take place, it should only be in case all possibilities of mutual reconciliation have been exhausted. For in the Divine Law provision for divorce has been made only as an unavoidable necessity; otherwise Allah does not approve that the marriage relationship that has been established between a man and a woman should ever break. The Holy Prophet (saws) has said "Allah has not made lawful anything more hateful in His sight than divorce." (Abu Daud). And: "Of all the things permitted by the Law, the most hateful in the sight of Allah is the divorce." (Abu Daud).

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verses 236-237: There is no blame on you if ye divorce women before consummation or the fixation of their dower; but bestow on them (a suitable gift); the wealthy according to his means and the poor according to his means; a gift of a reasonable amount is due from those who wish to do the right thing.

And if ye divorce them before consummation, but after the fixation of a dower for them then the half of the dower (is due to them), unless they remit it. Or (the man's half) is remitted by him in whose hands is the marriage tie; and the remission (of the man's half) is the nearest to righteousness. And do not forget liberality between yourselves. For Allah sees well all that ye do.

The rules prescribed in these verses is as follows:

There is no waiting period for the woman, marriage with whom has not been consummated; and who is divorced even before she is touched. She can re-marry, if she likes, immediately after the divorce.

Prophet Muhammad’s (saws) verdict for a woman seeking Khula

Sahih Al-Bukhari Hadith 7.197 Narrated by Ibn Abbas

The wife of Thabit bin Qais came to the Prophet (saws) and said, "O Messenger of Allah (saws)! I do not blame Thabit 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 Allah's Messenger (saws) said (to her), "Will you give back the garden which your husband has given you (as Mahr)?" She said, "Yes." Then the Prophet (saws) said to Thabit, "O Thabit! Accept your garden, and divorce her once."

What is the meaning of Khula and how does it operate

A divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of the bargain are matters of arrangement between the husband and wife, and the wife may as a consideration do one of the two or both:

release her mahr

make any other agreement for the benefit of the husband

Once the offer is accepted by the husband either verbally or in writing, it operates as a single irrevocable divorce and its operation is not postponed until execution of any written deed.

Some of the valid grounds for seeking khula in the court of law:

Apostacy from Islam

Impotency of husband

Lack of sterility of husband

Cruelty of husband

The whereabouts of husband are unknown for a period of four years

Failure of a husband to provide for the maintenance of the wife

Failure without reasonable cause to perform marital obligations

Conclusion

All the prohibitions and limits prescribed here are in the interest of good and honourable lives for both sides, and in the interests of a clean social life, without public or private scandals. If there is any fear of safeguarding economic rights, fear of non- performance of conjugal rights, the husband refusing the dissolution of marriage, and perhaps treating her with cruelty, then, in such exceptional cases, it is permissible to submit the matter seeking Khula to impartial judge/judges or properly constituted courts, who would ensure equity, in terms of granting Khula to the wife and a suitable compensation for the husband.

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me. Allah Alone Knows Best and He is the Only Source of Strength.

Your Brother in Islam,

Mohamed Ayyub.