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Knowing Allah
  
  

   

…it is deemed to be a revocation of the marriage and not a divorce…

 

ibn `abbâs said: “khul` is a separation and not a divorce” [related by ahmad.

ibn hajr said: "its line of transmission is authentic." al-talkhis al-habir (3/231)].

 

someone asked ibn `abbâs about a man who divorced his wife twice, then she made khul` with him; can he marry her again? ibn `abbâs replied: “yes, allah mentions divorce at the beginning and at the end of the verse and mentions khul`

in between.” [related by `abd al-razzâq (11771)].

 

ibn al-qayyim said: "this is the school of thought of ibn `abbâs, `uthmân, ibn `umar, al-rubayyi` and her uncle. in fact, it was never related by any companion that khul` is a divorce." [zad al-ma`ad (5/197)].

 

ibn khuzaymah said: “it was never established that khul` is a divorce [al-talkhis al-habir (3/231)].

 

this is the opinion of ibn taymiyah. he gives strong support for this opinion in majmu` al-fatawa (32/289).

 

(shaykh nayif al-hamad, http://islamtoday.com/show_detail_section.cfm?q_id=194&main_cat_id=8)

 

in any case, regardless of whether or not khula is a divorce, the fact is that a woman has the right to remove herself from any marriage. admittedly, it is not permissible for a woman to seek a revocation of her marriage if nothing is wrong with the marriage.

(what kind of a person would divorce her husband if nothing was wrong?) however, if something is wrong with her marriage (i.e. if the marriage causes her some hardship or harm), then she has the right to seek khula, according to islamic law (shari’ah).

 

shaykh abdur rahman al-ajlan, a lecturer at the grand mosque in mecca, declared:

 

a woman should not ask for a divorce without a legal or valid reason as long as she can manage to live with her husband. our prophet (peace be upon him) said:

 

“any woman who requests her husband to divorce her without a valid reason will not smell the scent of paradise.”

 

however, if a proper marital life has become impossible between the two or if it has become simply unbearable for her, then it is permissible for her to ask for divorce. allah says: “but if they separate, allah will provide abundance for each of them from his all-reaching bounty.”

 

(shaykh abdur rahman al-ajlan, http://islamtoday.com/show_detail_section.cfm?q_id=186&main_cat_id=8)

 

the proof that it is allowed for a muslim woman to seek khula comes from an authentic prophetic narration, as follows:

 

the wife of thabit ibn qays came to the prophet and said: “o messenger of allah, i do not find any fault with thabit ibn qays in his character or religious commitment, but i do not want to commit any act of kufr after becoming a muslim.” the prophet said to her: “will you give back his garden?” because he had given her a garden as her dower. she said: “yes.” the prophet said to thabit: “take back your garden, and divorce her.”

(narrated by al-bukhari, 5273)

 

shaykh salih al-munajjid commented on this hadeeth:

 

from this case the scholars understood that if a woman cannot stay with her husband, then the judge should ask him to divorce her by khula’; indeed he should order him to do so.

 

(shaykh salih al-munajjid, islam-qa.com, http://islamqa.com/en/ref/26247)

 

according to the hanbalis, shafi’is, and malikis, a judicial decree can separate a man and woman, even against the wishes of the husband. we read:

 

according to all schools except the hanafis a wife may obtain a judicial decree of divorce on the grounds of some matrimonial offense—e.g., cruelty, desertion, failure to maintain—committed by the husband.

 

(encyclopedia britannica, http://www.britannica.com/eb/article-

68932/shariah#196917.hook)

 

the judge and the court are to be the protectors of the rights of women. they are entrusted with the right to dissolve any marriage, and are commanded to do so when there is any harm being done to the wife, even if the husband refuses to grant khula to his wife.

 

abu az-zubayr of islamicawakening.com, a senior student of knowledge, explained:

she [the wife] has the shara’i right to demand a khul’ and [if] the husband refuses, she goes to the judge…the judge looks at the situation and forces separation, even if the husband does not like it.

 

(abu az-zubayr, islamicawakening.com)

 




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