Q. After five years of marriage, during which the couple lived in two different countries except for eight months, the wife wanted to terminate the marriage by khula’. She offered to refund the dowry and the gifts her husband gave her at the time of the marriage, but he refused to accept the khula’, demanding that she pays him all that he spent on her during the eight months she stayed with him in the city where he works.
The elders in their village asked him to accept but he has adamantly refused. They threatened to separate them under the Fisq chapter of khula’, but he remains adamant. There is no evidence concerning what he spent on her during their stay together.
Could you please explain what is the Fisq chapter of khula’? Can the elders, or the local judge declare the khula’ even though the husband does not accept? What if he never accepts? Is the husband entitled to more than the dowry he gave? Can the process continue while he lives abroad? Does the khula’ require witnesses? Since the couple have been living apart for more than a year, should the wife observe a waiting period?
J. Ahmad
A. The khula’ is the termination of the marriage at the wife’s request. Its evidence in the Qur’an is a verse that occurs within the context of divorce and marriage termination. The verse states: “If you have cause to fear that they would not be able to keep within the bounds set by God, it shall be no offence for either of them if she gives up whatever she may in order to free herself.” (2: 229) Thus, khula’ is a process by which the wife frees herself of the marriage in return for something she gives up. When a case was put to the Prophet (peace be upon him), he asked the woman concerned whether she would give back to her husband the garden he gave her in dowry. She said: “I will give him more if he wishes.” The Prophet said: “No! Not more than the garden.” There are different views among scholars on whether the woman could give more than the dowry to free herself, with most of them saying that it is permissible. However, this depends on her agreement. The husband may demand it, but he is not entitled, by right, to anything more than what he gave her in dowry.
The point is that marriage is a contract based on agreement by two parties. When one of them wants to withdraw, there is a procedure for that, and there should be the least harm for either of them. The marriage contract does not create a relation of bondage. Neither partner is enslaved as a result. Therefore, the compensation given should not be more than what indemnifies the loss. However, the laws of different Muslim countries deal with this point in different ways, some of which allow paying the husband more than the dowry he gave.
In the case the reader is asking about, the husband is demanding repayment of what he spent on his wife. He is not entitled to that. She is entitled to be looked after by her husband. What he spent is her right, in return of which she is his partner in marriage, with all that this entails. She gave him a marital relation in the same way as he gave her. This creates responsibilities for both, and his includes that he looks after her, paying all her living expenses. Thus, if he pays her ticket to come from home to where he lives and pays for her food, clothing, accommodation and other needs, as well as giving her some gifts, all this is included in his responsibility as a husband, representing no special favor. He has no right to claim it back.
I do not know what is meant by the Fisq chapter of khula’. I suspect that the people are referring to the faskh of marriage, which is a termination for a valid reason, such as the couple discovering that their marriage is unlawful under Islamic law. This is a totally different process, and it should not be considered in this case. Khula’ does not require the husband’s consent, according to the overwhelming majority of scholars. Had it been conditional on his acceptance, it would have become a divorce.
A judge can declare the marriage terminated by khula’, even in the absence of the husband, if due notices have been given to him. This means that the husband should be informed that the wife will be putting the case to the local judge and he will have to attend if he wants to contest the case, or agree to whatever the judge rules.
Every termination of marriage requires witnesses, because marriage is publicized. Therefore, the ending of the relation requires publicity, which is achieved by a minimum of two witnesses. Publicity is more honorable for both partners, particularly for the woman who may be married to someone else in due course.
When the khula’ is declared by the judge, or when the couple complete the process, the woman should observe a waiting period which, according to the majority of scholars, is the same as in the case of divorce, i.e. until the woman has had three menstrual periods. However, an equally valid view is that the woman observes no waiting period, but cannot be married to someone else until she has completed one menstrual period after the khula’ has been declared.
