Islamic Fiqh > Marriage and family > Khul' (dissolution by compensation) > The waiting period and disagreements
Contents
Updated on 24 September 2026 at 7:46 PM
This chapter gathers the sheets of the encyclopedia devoted to the conditional option in khul': the waiting period of the woman separated by khul', the place of this separation in the Quranic division of women with respect to the waiting period, the validity of khul' during menstruation or postpartum bleeding, the impossibility of taking back the khul' wife, the status of a return clause stipulated in the khul', whether divorce, zihar or ila' applies to the khul' wife, and the disagreements over the amount, type or deferral of the compensation. Each sheet sets out the positions of the four schools with their Quranic and prophetic proofs, the takhrij of the hadiths and the classical references. The disagreements are reported with their arguments, in keeping with the book's method.
Imam Ibn Qudama (may Allah have mercy on him) says: if he stipulates an option (khiyar) for her or for him, for a day or more, and the woman accepts, the khul' is valid and the option falls. This is Abu Hanifa's view when the option belongs to the man; he says, however, that if the option is granted to the woman, it is established for her and no divorce takes place.
Our argument is that the cause of the divorce's occurrence has come into existence, namely the wording by which it was pronounced; the divorce therefore took place, as if he had pronounced it unconditionally. Once it has taken place, there is no way to lift it (al-Mughni 7/252).
The waiting period of the woman separated by khul':
The jurists differed over the waiting period ('idda) of the woman separated by khul': is it that of the divorced woman, three periods of purity, or a single menstruation?
The majority of jurists, namely the Hanafis, the Malikis, the Shafi'is and the Hanbalis in the madhhab, hold that the khul' wife's waiting period is that of the divorced woman: if she is among those who menstruate, she waits three periods of purity; if she is among those past menopause, three months. The same applies to every separation between two spouses, whose waiting period is that of divorce, whether it occurs by khul', by li'an (mutual imputation of conjugal misconduct), by suckling, or by annulment for a defect, for insolvency, by manumission, by difference of religion or otherwise, according to the view of most people of knowledge; by the word of Allah the Most High:
"Divorced women must wait for three menstrual cycles."
Surah al-Baqarah, 228
And because it is a separation after entry into married life, its waiting period is three periods of purity, like the separations other than khul' (Sharh Fath al-Qadir 4/307; al-Muwatta 2/565; al-Tamhid 23/373, 377; al-Istidhkar 6/73, 75; Tafsir al-Qurtubi 3/144, 145; Sharh al-Zarqani 3/240; Ikhtilaf al-Ulama 1/158; al-Najm al-Wahaj 8/125).
Imam al-Tirmidhi (may Allah have mercy on him) says: the people of knowledge differed over the waiting period of the khul' wife. Most of the people of knowledge among the Companions of the Prophet (peace and blessings be upon him) and others say that the waiting period of the khul' wife is that of the divorced woman, three menstrual periods: this is the view of Sufyan al-Thawri and the people of Kufa, and Ahmad and Ishaq declare it. Some people of knowledge among the Companions of the Prophet (peace and blessings be upon him) and others say that the waiting period of the khul' wife is one menstruation. Ishaq said: whoever takes this path follows a strong course (Sunan al-Tirmidhi 3/491).
Imam Ibn Qudama (may Allah have mercy on him) says: most of the people of knowledge say that the waiting period of the khul' wife is that of the divorced woman, among them Sa'id ibn al-Musayyib, Salim ibn Abdallah, Urwa, Sulayman ibn Yasar, Umar ibn Abd al-Aziz, al-Hasan, al-Sha'bi, al-Nakha'i, al-Zuhri, Qatada, Khalas ibn Amr, Abu Iyad, Malik, al-Layth, al-Awza'i and al-Shafi'i (al-Mughni 8/79).
Imam Ahmad took the position, in one narration (reported from Uthman ibn Affan, Ibn Umar, Ibn Abbas and Aban ibn Uthman), as did Ishaq, Ibn al-Mundhir, Ibn Taymiyya and Ibn al-Qayyim, that the waiting period of the khul' wife is a single menstruation, because of what Ibn Abbas (may Allah be pleased with them both) reported:
The wife of Thabit ibn Qays separated from him by khul', and the Prophet (peace and blessings be upon him) set her waiting period as one menstruation.Authentic hadith; Abu Dawud 2229; al-Tirmidhi 1185
Muhammad ibn Abd al-Rahman reports that al-Rubayyi' bint Mu'awwidh ibn Afra' informed him of the following:
Thabit ibn Qays ibn Shamas had struck his wife and broken her hand, while she was Jamila bint Abdallah ibn Ubayy; her brother came to complain about him to the Messenger of Allah (peace and blessings be upon him), who sent for Thabit and said to him: "Take what is due to her from you and let her go." He said: yes. The Messenger of Allah (peace and blessings be upon him) then ordered her to wait one single menstruation, and she then joined her family.Authentic hadith; al-Nasa'i 3497
Sulayman ibn Yasar reports from al-Rubayyi' bint Mu'awwidh ibn Afra':
She had been separated by khul' in the time of the Prophet (peace and blessings be upon him), and the Prophet (peace and blessings be upon him) ordered her, or she was ordered, to wait one menstruation.Reported by al-Tirmidhi 1185
Al-Tirmidhi said: in this chapter there is also the hadith of Ibn Abbas, and Abu Isa (al-Tirmidhi) said: the authentic hadith of al-Rubayyi' is that she was ordered to wait one menstruation.
Ubada ibn al-Walid ibn Ubada ibn al-Samit reports from al-Rubayyi' bint Mu'awwidh: I said to her: tell me your story. She said:
I was separated by khul' from my husband, then I went to Uthman and asked him: what waiting period is upon me? He said: no waiting period is upon you, unless you are recently bound to him in marriage, in which case you remain until you menstruate once. He said: and in this I follow the judgment of the Messenger of Allah (peace and blessings be upon him) in the case of Maryam al-Maghaliyya: she was the wife of Thabit ibn Qays ibn Shamas and separated from him by khul'.Report graded good and authentic; al-Nasa'i 3498
Malik reports from Nafi' from Ibn Umar:
The waiting period of the khul' wife is one menstruation.Authentic hadith; Abu Dawud 2230
Imam Ibn al-Qayyim (may Allah have mercy on him) says: the people differed over the waiting period of the khul' wife. Ishaq and Ahmad, in the more authentic of the two narrations reported from him, have an argument that she waits a single menstruation; this is the madhhab of Uthman ibn Affan and Abdallah ibn Abbas, whose consensus he even reported with no opponent known to them. The authentic Sunna of the Messenger of Allah (peace and blessings be upon him) indicates it in an explicit manner; the excuse of whoever opposes it is that the report did not reach him, or that he did not deem it authentic, or that he believed in a consensus to the contrary. This view is the stronger one by the report and by examination.
As for its preference by the report: the Prophet (peace and blessings be upon him) never ordered a khul' wife to wait three menstrual periods; rather, the compilers of the Sunan collections reported from him, through the hadith of al-Rubayyi' bint Mu'awwidh, that "Thabit ibn Qays had struck his wife and broken her hand, while she was Jamila bint Abdallah ibn Ubayy; her brother came to complain to the Messenger of Allah (peace and blessings be upon him), who sent for Thabit and said to him: take what is due to her from you and let her go. He said: yes. The Messenger of Allah (peace and blessings be upon him) ordered her to wait one single menstruation and then join her family." Abu Dawud and al-Nasa'i reported, in the hadith of Ibn Abbas, "that the wife of Thabit ibn Qays had separated from her husband by khul' and that the Prophet (peace and blessings be upon him) ordered her, or she was ordered, to wait one menstruation." Al-Tirmidhi said: the correct version is that she was ordered to wait one menstruation. These hadiths have chains of transmission corroborating one another.
Two criticisms were raised against the hadith: the first, its irsal (the break in its chain); the second, that the correct version in it is "she was ordered," with the agent omitted. Both criticisms have no effect: the hadith was reported through connected chains, and there is no contradiction between "she was ordered" and "the Messenger of Allah (peace and blessings be upon him) ordered her," for it is impossible that the one commanding her to do this was other than the Messenger of Allah (peace and blessings be upon him) during his lifetime. When a hadith is reported with a wording open to interpretation and with an explicit wording that interprets and clarifies it, how could the ambiguous wording be set in opposition to the explicit one, let alone preferred over it? Then the fatwas of the Companions of the Messenger of Allah (peace and blessings be upon him) suffice: Abu Ja'far al-Nahhas said in Kitab al-Nasikh wa al-Mansukh: it is a consensus of the Companions.
As for the rational requirement of this view: the khul' wife leaves her husband no waiting period over her; she has acquired her own person and has stronger title to her private parts, and she may remarry as soon as her womb is pure; the waiting period, in her case, therefore reduces to the purity of the womb. Now we see the Sharia prescribing a single menstruation in this kind of case, as it did for the captive ransomed from bondage, for the slave woman married by a contract of exchange or by gift, and for the woman who emigrates from the land of war; and there is no doubt that it prescribed three periods of purity for the revocably divorced wife.
The khul' wife is a branch oscillating between these two principles; she should therefore be attached to whichever she most resembles. We examined: she most resembles the women who menstruate.
Among what unveils the wisdom of the Sharia in this matter, the Legislator divided women into three categories.
The first: separation before consummation; there is then neither waiting period nor return for the husband.
The second: separation after consummation when the husband retains a right of return over her; her waiting period was set at three periods of purity. Allah, may He be exalted, mentioned the waiting period of three periods of purity only in this category, as the Quran explicitly attests in His word:
"Divorced women must wait for three menstrual cycles; and it is not lawful for them to conceal what Allah has created in their wombs, if they believe in Allah and the Last Day. And their husbands have more right to take them back during this period, if they desire reconciliation."
Surah al-Baqarah, 228
Likewise, in Surah al-Talaq, when He mentioned the waiting of three months for the wife whose husband, when she reaches her term, must choose between retaining her in a fitting manner or releasing her with kindness, which is without any doubt the revocably divorced wife, He mentioned neither the periods of purity nor their substitute for a woman irrevocably separated.
The third category: the woman separated from her husband whose right over her has ceased, through captivity, emigration or khul'; her waiting period was set at one menstruation, for the ascertaining of the womb (istibra'), not three, for the husband has no return whatsoever. This is what is most evident and most fitting. As for the adulteress and the woman with whom intercourse occurred under a doubt, the requirement of the text is that she purifies herself with a single menstruation; Ahmad stated this explicitly for the adulteress, and our shaykh chose it for intercourse under a doubt, and it is the sounder view; comparing them to the revocably divorced wife is the farthest and most corrupt analogy (I'lam al-Muwaqqi'in 2/88, 90; Zad al-Ma'ad 5/649, 650; see al-Mubdi' 8/120; al-Insaf 9/278, 279; Majmu' al-Fatawa 32/315, 344).
Imam Ibn al-Mundhir (may Allah have mercy on him) says: the people of knowledge differed over the waiting period of the khul' wife. Uthman ibn Affan and Ibn Umar say her waiting period is one menstruation, and Aban ibn Uthman as well as Ishaq ibn Rahawayh declare the same.
There is a second view: her waiting period is that of the divorced woman. We reported this view from Ali ibn Abi Talib, and it is the view of Ibn al-Musayyib, Sulayman ibn Yasar, al-Hasan, al-Sha'bi, Salim ibn Abdallah, Abu Salama ibn Abd al-Rahman, al-Nakha'i, Urwa ibn al-Zubayr, Umar ibn Abd al-Aziz, al-Zuhri, Qatada, Khalas ibn Amr, Abu Iyad, Malik, al-Layth ibn Sa'd, al-Awza'i, al-Thawri, al-Shafi'i, Ahmad, Ishaq and Abu Ubayd.
Abu Bakr (Ibn al-Mundhir) said: I hold the first view, because of the hadith reported from the Prophet (peace and blessings be upon him): "the wife of Thabit ibn Qays separated from him by khul', and the Prophet (peace and blessings be upon him) set her waiting period as one menstruation," and because of the view of Uthman ibn Affan and Ibn Umar; the hadith of Ali, for its part, is not established (al-Ishraf ala madhahib al-ulama 5/360).
The jurists differed over the status of khul' during menstruation: is it valid or not?
The majority of jurists, namely the Hanafis, the Shafi'is and the Hanbalis, together with the Malikis in one view, hold that khul' during menstruation, postpartum bleeding, or the period of purity in which the husband had intercourse with her is valid, because of the hadith of Habiba bint Sahl al-Ansariyya, who was the wife of Thabit ibn Qays ibn Shamas:
The Messenger of Allah (peace and blessings be upon him) went out one morning and found Habiba bint Sahl sitting at his door in distress. The Messenger of Allah (peace and blessings be upon him) said: "Who is this?" She said: I am Habiba bint Sahl. He said: "What is your matter?" She said: neither I nor Thabit ibn Qays, that is, her husband, meaning: I do not incline to him and he does not incline to me. When Thabit ibn Qays arrived, the Messenger of Allah (peace and blessings be upon him) said to him: "This is Habiba bint Sahl," and she mentioned whatever Allah willed her to mention. Habiba said: O Messenger of Allah, all that he gave me is in my hands. The Messenger of Allah (peace and blessings be upon him) said to Thabit ibn Qays: "Take it from her." He took it from her, and she remained in her family's house.Authentic hadith; Malik in al-Muwatta 1174; Ahmad in al-Musnad 27484; Abu Dawud 2227; al-Nasa'i 3462; Ibn Hibban in his Sahih 4280
The Prophet (peace and blessings be upon him) did not ask her about her state: whether she was menstruating or not.
The prohibition of divorce during menstruation stems from the harm that would befall the wife through the lengthening of her waiting period, whereas khul' removes the harm arising from an evil married life and from dwelling with a husband she dislikes and hates, a harm greater still than that of the length of the waiting period; it is therefore permitted to ward off the greater of the two evils by the lesser. That is why the Prophet (peace and blessings be upon him) did not ask the khul' wife about her state; and because the harm of lengthening the waiting period falls upon her, while khul' comes about only at her request, which constitutes her consent and proof that her interest favors it (Sharh Fath al-Qadir 3/473; al-Bahr al-Ra'iq 3/257; al-Hawi al-Kabir 10/4; al-Muhadhdhab 2/71; al-Bayan 10/15; Mughni al-Muhtaj 4/499; al-Mughni 7/247; Matalib Uli al-Nuha 5/292; Majmu' al-Fatawa 33/21).
The Malikis, in the most famous view, hold that khul' during menstruation is not valid (al-Taj wa al-Iklil 3/38; Jami' al-Ummahat p. 292; Mawahib al-Jalil 5/260; Sharh Mukhtasar Khalil 4/29; al-Sharh al-Kabir with the Hashiyat al-Dasuqi 3/242; al-Tahbir 3/133).
The jurists of the four schools agree that, when the husband has separated from his wife by khul', no right of return is established for him, whether he pronounced the wording of khul' or that of divorce; by the word of the Most High:
"There is no sin upon the two spouses if she ransoms herself with something."
Surah al-Baqarah, 229
The iftida' (ransom) denotes release and rescue, derived from the ransoming of the captive, which is his release and his rescue; were the return established in it, release and rescue would not take place; this proves that the ransom prevents the establishment of the return.
And because the wife acquired her private parts through khul' as the husband had acquired them through marriage: since the husband acquired, through marriage, his wife's private parts by a complete ownership in which she has no authority, the wife must acquire her private parts through khul' by a complete ownership in which he has no authority. And because the husband acquired the compensation in exchange for the wife's ownership of her private parts: the husband's ownership of the compensation being definitive, with no right remaining to the wife in it, the wife's ownership of her private parts must be definitive, with no right remaining to the husband in it.
And because he took a counter-value from the khul' wife: whoever receives the counter-value of what belongs to him has no return over what he held possession of. And because the woman pays out the compensation only to remove the harm befalling her; every separation meant to remove harm requires cutting what would bring her back to her husband, that is, the establishment of the return that would send her back into the harm. And because she becomes incapable of fulfilling the rights of Allah the Most High toward her husband; she thus deserves this status, as in the separation for insolvency of maintenance and in ila' (the oath of abstinence) (al-Ishraf ala nakt masa'il al-khilaf 3/381, no. 1210; al-Hawi al-Kabir 10/11, 12; al-Bayan 10/37; al-Mughni 7/251, 252).
The jurists differed over the case in which the husband separates from his wife by khul' stipulating the return for himself: is the clause valid and the return established? Or is the clause void while the khul' remains valid without any return? Or is the compensation void with the return established, so that it is a revocable divorce?
The Hanafis, the Malikis in one view and the Hanbalis in the madhhab hold that if the husband separates from his wife by khul' stipulating the return for himself, the khul' is valid, the clause is void and no return is established; because the khul' is not corrupted by the corruption of its compensation, it is therefore not corrupted by the void clause, like marriage; and because it is a wording requiring separation: when the return is stipulated in it, the clause is void, like the triple divorce.
According to the madhhab of the Hanbalis, the named compensation (musamma) is due on the correct view of the school; both parties consented to it as compensation, so nothing else is due, as if the khul' had taken place without a clause of return.
It is said otherwise: the named compensation is void and the mahr al-mithl (dower of equivalence) is due; the qadi chose this, because the husband consented to it as compensation only by adding the clause to it; once the clause falls, the shortfall he deducted on its account must be restored to it, so that the compensation becomes indeterminate; it then falls, and the compensation named in the contract is due (al-Mughni 7/251, 252; see al-Ishraf ala nakt masa'il al-khilaf 3/381, 382, no. 1211; al-Mubdi' 7/228; al-Insaf 8/396; Kashshaf al-Qina' 5/247).
Imam al-Qaduri (may Allah have mercy on him) says: our companions said: if he separates from his wife by khul' for a compensation, on condition that he may return to her, the khul' is valid and the clause is void.
23139 - Al-Shafi'i said: the return is established and the money falls.
23140 - Our argument: he denied the very seat of the khul' after pronouncing it; he thus becomes like one who separated on condition that no separation occur. And because the khul' requires separation: the clause of return in it is void, like the triple divorce.
23141 - If it is said: in the triple divorce the money and the clause are void but its effect remains; likewise the khul': the money and the clause are void in it but its effect remains.
23142 - We say: the meaning of the khul' according to us is separation, even if the compensation is not mentioned in it, like the triple divorce. And because it is a meaning that admits no annulment (faskh): when he negates its cause, no ruling attaches to that negation, like one who pardons premeditated blood on condition of having retribution whenever he wishes.
23143 - They argued that the husband stipulated the money and the return; their combination being impossible, both fall and there remains the return which divorce requires. This is refuted by the fact that divorce requires the return, the clause requires the return, and the money requires the clause but not the divorce; establishing what divorce and the clause establish is therefore preferable.
23144 - We say: this is not conceded; the khul' requires separation according to us, so that, the money and the return set aside, separation remains in the meaning of the khul'.
23145 - If it is said: this reasoning applies likewise when he divorces her for money while stipulating the return.
23146 - We say: we do not concede that, when they cannot combine, both must fall; rather the return is annulled; divorce is not annulled and separation is one of its rulings, which is therefore reinforced with it; the money, for its part, can fall and be annulled: the annulment of the money is thus preferable (al-Tajrid of al-Qaduri 9/4762, 4763).
The Shafi'is in the madhhab, the Malikis in one view and the Hanbalis in one aspect hold that the compensation is void and the return established; because the clauses of the compensation and of the return contradict each other: when they are stipulated together, both fall and pure divorce remains; we therefore establish the return by the principle, not by the clause. And because he stipulated in the contract what contradicts its requirement, voiding it, as if he stipulated not to dispose of the sold item.
The arguments for the establishment of the return and the falling of the compensation are four:
Al-Mawardi (may Allah have mercy on him) says: al-Muzani said: the divorce occurs irrevocably, with no return, and the husband is entitled to the mahr al-mithl. Al-Muzani made this his own doctrine, deeming it the analogy of al-Shafi'i's view.
Al-Rabi' transmitted this question and its answer as al-Muzani had transmitted it: the divorce occurs revocably and the husband has nothing. Then he said: there is another view: the divorce occurs irrevocably and the husband is entitled to the mahr al-mithl. He thus reported this second view, resembling the one al-Muzani had chosen, and our companions differed over attributing this statement to al-Shafi'i: some say it is a second view of al-Shafi'i, because al-Rabi' is trustworthy in what he reports; most say it is not a statement of al-Shafi'i, al-Rabi' having merely interpreted it without transmitting it. Al-Shafi'i therefore has only the statement al-Muzani transmitted from him, with which al-Rabi' concurred: the divorce occurs revocably, the husband has nothing, and the dinar is returned to the wife.
As for al-Muzani, he proved the soundness of his position (the divorce occurring irrevocably and the entitlement to the mahr al-mithl) by four things:
Ibn al-Hajib (may Allah have mercy on him) says: if he separates from her by khul' on condition of taking her back, his return is valid; and it is said: no return for him, and his clause is void (al-Tafrif fi fiqh al-Imam Malik ibn Anas 2/17).
The qadi Abd al-Wahhab (may Allah have mercy on him) said: issue: if she offers him a compensation for her divorce and he consents on condition of having the return, two narrations exist. The first: it is valid, the return belongs to him, and the counter-value belongs to him in exchange for the divorce. The second: it is a khul' and he has no return, which is Abu Hanifa's view. Al-Shafi'i said: the khul' is invalid, the divorce occurs, the return is established, and the counter-value is returned to her. Al-Muzani said: the khul' is valid, the return falls, and he is entitled to the mahr al-mithl from her.
Our first proof that no return is established for him: it is a divorce for a compensation, in which there is no return. Its principle: if she gives him money so that he separates from her by khul', without the return being stipulated. And because the compensation is paid out only to remove the bond of conjugal inviolability and sever it; the establishment of that bond voids this meaning.
The way of establishing the return: the payment, here, is aimed at reducing the number of divorces through the clause to which he consented; it therefore ceases to be a khul'; as soon as it ceases to be a khul', the return is established.
Our proof of al-Shafi'i's statement: "the return is established and the compensation is not due": when the compensation is received in exchange for a compensated thing, the exchange is valid; now the woman consented that the compensation have as its counterpart the reduction of the number of divorces; it therefore ceases to be a khul' (al-Ishraf ala nakt masa'il al-khilaf 3/381, 382, no. 1211).
The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) took the view that, if the husband stipulates the return in the khul', the clause is valid. He said: if he stipulates the return in the khul', the analogy of the madhhab is the validity of this clause, as if she gave him money to manage her own affairs; Imam Ahmad stated explicitly the permission of this, for the principle is the validity of conditions in contracts (al-Fatawa al-Kubra 4/566).
The jurists differed over the khul' wife: do divorce, zihar, ila' or li'an apply to her, or none of these?
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis, hold that when the husband has separated from his wife by khul', none of divorce, zihar, ila' or li'an applies to her; whether the khul' be deemed a divorce or an annulment, whether he divorces her during the waiting period or otherwise, by explicit wording or by allusion with intention.
'Ata' reports from Ibn Abbas and Ibn al-Zubayr their statement concerning the khul' wife divorced by her husband:
Divorce does not apply to her, for he divorced what he does not own.Reported by al-Shafi'i in al-Umm 5/115
And because it is a separation whose return he does not hold, divorce does not apply in it, as with the unrelated woman. And because whoever's divorce does not apply when he effects it with compensation does not have it apply without compensation either, like the woman divorced before consummation or after the expiry of the waiting period. And because whoever does not divorce by a wording encompassing all women, divorce with specification does not apply to him either, its archetype being the slave woman: she is unrelated to him, as shown by the absence of the privileges proper to marriage, such as ila', zihar and the maintenance attached to spousal status. And because whoever says to her: "you are single, freed, forbidden," no divorce applies with whatever term he uses: she is like the unrelated woman (al-Tamhid 23/377; al-Ishraf ala nakt masa'il al-khilaf 3/383, no. 1212; al-Hawi al-Kabir 10/206; al-Bayan 10/36; Masa'il al-Imam Ahmad 1/440; al-Mughni 7/251; Kashshaf al-Qina' 5/247; Matalib Uli al-Nuha 5/298).
Imam al-Shafi'i (may Allah have mercy on him) reports the following debate: some people departed from us concerning the khul' wife and said: "if she is divorced during the waiting period, divorce applies to her." I asked him: does he report any tradition in support of his statement? He mentioned a hadith that constitutes no proof by our standard or his. I said: this hadith is established neither with us nor with you. He said: some Successors, among you, hold it; no proof would stand against them were others not contradicting them.
He said: what is your proof that divorce does not apply to her? I said: my proof is drawn from the Quran, the report and the consensus, concerning what indicates that divorce does not apply to her. He said: where is the proof from the Quran? I said: Allah the Most High said:
"And those who launch the charge against their wives..."
Surah an-Nur, 6 (to the end of the two verses)
Allah, blessed and exalted is He, said:
"For those who vow abstinence from their wives..."
Surah al-Baqarah, 226
He said:
"Those among you who declare zihar against their wives..."
Surah al-Mujadala, 2
He said:
"You shall have half of what your wives leave..."
Surah an-Nisa, 12
And He said:
"And they shall have a fourth of what you leave."
Surah an-Nisa, 12
I continued: do you not see: if he accuses her of adultery, does he perform li'an with her? If he vows abstinence from her, is ila' binding on him? If he declares zihar against her, is zihar binding on him? If she dies, does he inherit from her? If he dies, does she inherit from him? He said: no. I said: these five rulings of Allah, blessed and exalted is He, show that she is not a wife. He said: yes. I said: and the ruling of Allah is that only the wife is divorced, for Allah, blessed and exalted is He, said:
"When you marry believing women and then divorce them..."
Surah al-Ahzab, 49
He said: yes. Then the Book of Allah, as we claim and as you claim, indicates that she is not a wife, which contradicts your statement.
Muslim ibn Khalid informed me, from Ibn Jurayj, from Ata', from Ibn Abbas and Ibn al-Zubayr: they declared concerning the khul' wife divorced by her husband: "divorce does not apply to her, for he divorced what he does not own." Now you claim that you contradict none of the Companions of the Prophet (peace and blessings be upon him) except by a statement like yours; yet you contradicted Ibn Abbas and Ibn al-Zubayr together, as well as verses of the Book of Allah the Most High, to the point that I hardly know whether someone holding your statement would not be told: it is not permitted to you to speak in knowledge while you are ignorant of the rulings of Allah; then you would have uttered there a statement of which, had you remained silent, you would still have erred well, while claiming examination for yourself.
He said: and what is that statement? I said: you claim that if he says to the khul' wife: "you are severed, freed, released," intending divorce, divorce does not apply to her, while it applies to the wife; that if he vows abstinence from her, declares zihar against her or accuses her, what applies to the wife does not apply to her; and that if he says: "all women lawful to me are divorced," intending neither her nor another, his wives are divorced but she is not, for she is not a woman lawful to him. Then you said: and if he says to her: "you are divorced," she is divorced; how then does he divorce other than his wife? (al-Umm 5/115).
Imam Ibn Abd al-Barr (may Allah have mercy on him) says: the khul' wife: neither divorce, nor zihar, nor ila', nor li'an applies to her; he assigned her neither lodging nor maintenance, they do not inherit from one another, and Allah placed her contrary to the revocably divorced wife. Abu Hanifa's statement: "divorce applies to her" contradicts the doctrines of the jurists (al-Tamhid 23/377).
Al-Mawardi (may Allah have mercy on him) says: al-Shafi'i (may Allah have mercy on him) said: divorce does not apply to the khul' wife even if she is in the waiting period, and this is the statement of Ibn Abbas and Ibn al-Zubayr. Some people said: divorce applies to her during the waiting period, and they cited certain Successors. Al-Shafi'i answered him from the Quran and the consensus, by what indicates that divorce does not apply to her: what Allah mentioned between the two spouses, namely li'an, zihar, ila', inheritance and the waiting period upon the husband's death. Five verses of the Book of Allah the Most High therefore indicated that she is not a wife, and Allah made divorce fall only upon the wife; he thus contradicted the Quran, the report and analogy. His statement on the matter, moreover, is self-contradictory: he claims that if he says to her: "you are released, freed or severed," intending divorce, divorce does not apply to her; that if he says: "all women lawful to me are divorced," intending neither her nor another, his wives are divorced to her exclusion; but that if he says to her: "you are divorced," she is divorced; how then does he divorce other than his wife?
Al-Mawardi said: and as he said: if the husband separates from his wife by khul' for one divorce or two divorces, she remains with one or two divorces outstanding, then divorces her during the waiting period, his divorce does not occur; whether he divorces her by the explicit wording of divorce or by allusion, and whether he does so during the waiting period or after it. This is the statement, among the Companions, of Ibn Abbas and Ibn al-Zubayr; among the Successors, of Urwa ibn al-Zubayr; among the jurists, of Ahmad and Ishaq.
Abu Hanifa said: if he divorces her during the waiting period by the explicit wording of divorce, his divorce occurs; if he divorces her by allusion to divorce, as by saying "you are separate" or "forbidden," or by a condition, as by saying "if you enter the house, you are divorced" and she enters it, or if he says "all my wives are divorced," she is not divorced in these three cases.
Malik said: if he divorces her right after the khul', so that his divorce connects to his khul', she is divorced; if his divorce is separated from his khul', she is not divorced.
Al-Hasan al-Basri said: if he divorces her in the very session of his khul', she is divorced; if he divorces her outside it, she is not. Whoever supports Abu Hanifa's statement argued from the word of Allah the Most High:
"Divorce is twice; then, either retain (the wife) in honor or release her with kindness..."
Surah al-Baqarah, 229
up to His word:
"...if she ransoms herself with something"
Surah al-Baqarah, 229
which denotes khul'; then He said:
"Then, if he divorces her, she shall not be lawful to him thereafter until she marries a husband other than him."
Surah al-Baqarah, 230
Which indicates that divorce after khul' occurs.
Abu Yusuf reported in his Amali a report traced to the Prophet (peace and blessings be upon him):
Divorce applies to the khul' wife as long as she is in the waiting period.Reported by Abu Yusuf in his Amali
Ibn al-Jawzi ruled in al-Tahqiq fi ahadith al-khilaf (2/295) that this hadith is fabricated, having no basis whatsoever.
The supporters of this view argue next that the khul' wife observes the waiting period of a divorce: whatever remains of the count of divorces must therefore apply to her, as to the revocably divorced wife. And because divorce resembles manumission in their two paths and in the permissibility of taking a counter-value for them; and khul' resembles the manumission contract (kitaba) in the establishment of the counter-value in both. Now it is established that, when the slave bound by a manumission contract (mukatab) is manumitted, his manumission is valid, by virtue of the remnants of the rulings of ownership; so when the khul' wife is divorced, her divorce must be valid, by virtue of the remnants of the rulings of marriage. And because the khul' wife resembles the woman against whom zihar was declared, through the prohibition befalling both and the remnants of the rulings of their marriage; the divorce of the woman against whom zihar was declared being valid, the divorce of the khul' wife must be so as well.
Our argument is the word of Allah the Most High:
"Divorce is twice; then, either retain (the wife) in honor or release her with kindness."
Surah al-Baqarah, 229
Allah made release the prerogative of the one entitled to retain; when the khul' wife's husband no longer holds the right to retain her, neither her release nor her divorce proceeds from him. And because it is the consensus of the Companions: it is reported from Abdallah ibn Abbas and Abdallah ibn al-Zubayr, with no opponent known to them. And because a divorce that dissolves no marriage and cancels no return is pointless, like the divorce of the divorced woman after her waiting period. And because she is a woman who does not become lawful to him again except through a new marriage: his divorce therefore does not apply to her, as with the unrelated woman.
If it is said: the unrelated woman, between her and him, has no ruling of marriage at all, which is why divorce does not apply to her; whereas the khul' wife falls under rulings of marriage, namely the obligation of the waiting period, the right to lodging and the attachment of lineage; divorce might therefore apply to her.
The answer is: the obligation of the waiting period and the attachment of lineage belong to the rulings of intercourse, not of marriage. Do you not see that if he divorces her before consummation, she observes no waiting period; and that if he marries her then says: "I accepted her marriage, she is divorced," the child does not attach to him; whereas if he has intercourse with her under a doubt, without marriage, the waiting period becomes obligatory upon her and the child attaches to him? This shows that the waiting period and lineage belong to the rulings of intercourse, not of marriage. Divorce is not so, for it belongs to the rulings of marriage, not of intercourse (al-Hawi al-Kabir 10/16, 17).
Imam Ibn Qudama (may Allah have mercy on him) said, in one issue: no divorce occurs upon the khul' wife in her waiting period, even if he confronts her with it.
In sum: no divorce applies to the khul' wife in any circumstance; this is the statement of Ibn Abbas, Ibn al-Zubayr, Ikrima, Jabir ibn Zayd, al-Hasan, al-Sha'bi, Malik, al-Shafi'i, Ishaq and Abu Thawr. It is reported from Abu Hanifa that the explicit, specified wording of divorce applies to her, to the exclusion of allusion and of the unspecified divorce, which consists in saying: "all women lawful to me are divorced"; a similar statement is reported from Sa'id ibn al-Musayyib, Shurayh, Tawus, al-Nakha'i, al-Zuhri, al-Hakam, Hammad and al-Thawri, because of what is reported from the Prophet (peace and blessings be upon him): "divorce applies to the khul' wife as long as she is in the waiting period."
Our argument: it is the statement of Ibn Abbas and Ibn al-Zubayr, with no opponent known to them in their era. And because she does not become lawful to him again except through a new marriage: his divorce therefore does not apply to her, as with the woman divorced before consummation or the one whose waiting period has expired. And because he does not hold her private parts: his divorce therefore does not apply, as with the unrelated woman. And because the unspecified divorce does not occur upon her and she is not divorced by allusion: the explicit specified wording therefore does not apply in it, as before consummation. There is no difference between his confronting her with it, saying "you are divorced," or not confronting her with it, as by saying "so-and-so is divorced"; and as for their hadith, we know of no basis for it whatsoever, nor did the compilers of the Sunan mention it (al-Mughni 7/251).
The Hanafis hold that the explicit wording of divorce applies to the khul' wife, by the word of the Most High:
"...if she ransoms herself with something"
Surah al-Baqarah, 229
which denotes khul'; then He said:
"Then, if he divorces her, she shall not be lawful to him thereafter until she marries a husband other than him."
Surah al-Baqarah, 230
the fa' expressing consequence: an explicit text that the third divorce occurs after the khul' pronounced twice.
And because of the report traced to the Prophet (peace and blessings be upon him): "the explicit wording of divorce applies to the khul' wife as long as she is in the waiting period"; this is an explicit text on the question. And because she, through khul' and irrevocable separation, has not ceased to be a locus for divorce: if the meaning of divorce is what the term denotes in the language, namely bursting forth, liberation and the disappearance of the bond, she is a locus for that, for she is bound during the waiting period, prevented from going out, appearing and marrying another husband, and the bond is the prohibition. If the meaning of divorce is what the term does not denote in the language, namely the disappearance, under the Law, of the lawfulness of the marital bond, the lawfulness of the bond subsists, for it disappears only through the three divorces, which have not occurred; the irrevocably divorced wife and the khul' wife are therefore both loci for divorce.
If he says to her the allusions by which the revocable divorce occurs, such as "observe your waiting period," "ascertain your womb," "you are one," intending divorce, an irrevocable divorce (ba'in) occurs upon her according to Abu Hanifa and Abu Yusuf, contrary to Muhammad (Mukhtasar Ikhtilaf al-Ulama 2/467; Ahkam al-Qur'an of al-Jassas 2/96; al-Mabsut 6/84; Bada'i al-Sana'i 3/135; Sharh Fath al-Qadir 3/147, 4/74; Tabyin al-Haqa'iq 2/219).
There remains the case of the husband who denies the khul': unless the wife brings proof of the khul' having occurred, it takes place, but no compensation is established for him, according to the Shafi'is and the Hanbalis, because he denies it; if he returns and acknowledges the khul', judgment is given in his favor with the compensation, according to the Shafi'is, since the divorce was binding upon him and she acknowledges it. The Hanafis say: the money is not binding upon her, for she acknowledged it only in exchange for the khul'; the khul' not being established, the money is not established; and because the husband, by his denial, annulled her acknowledgment (al-Bahr al-Ra'iq 4/93; al-Nahr al-Fa'iq 2/444; al-Durr al-Mukhtar with the Hashiyat of Ibn Abidin 3/450; al-Muhadhdhab 2/333; al-Bayan 10/59; al-Najm al-Wahaj 7/473; Mughni al-Muhtaj 4/452; Tuhfat al-Muhtaj 9/311; al-Dibaj 3/397; al-Mughni 7/274; al-Kafi 4/539).
The jurists differed over the case in which the two spouses agree on the khul' but differ over its amount, its type, its description, its lawfulness or its deferral: does the word belong to the woman, to the husband, or do they swear mutual oaths?
The Hanafis, the Malikis and the Hanbalis in the madhhab hold, on the whole, that the word belongs to the woman.
The Hanafis say: if they differ over the amount of the fee (ju'l) after agreeing on the khul', or if she says: "I separated without giving anything," the word is hers, and the proof (bayyina) falls upon the husband (al-Bahr al-Ra'iq 4/93; al-Nahr al-Fa'iq 2/444).
The Malikis say: if the two spouses agree on the khul' but the husband claims a large amount, such as ten, and she claims less, such as five; or he claims a type, such as a slave woman, and she claims something else, such as a ewe: the woman swears, denying what the husband claims, the separation takes place, and she pays what she claimed. If she declines to swear, he swears and takes what he claimed of amount and type; if he in turn declines, he has nothing more, and what she declared is due to him (Sharh Mukhtasar Khalil 4/26; al-Tahbir 3/127, 128; al-Sharh al-Kabir with the Hashiyat al-Dasuqi 3/237, 238).
The qadi Abd al-Wahhab (may Allah have mercy on him) said: if he says: "I separated from you by khul' for two thousand" and she says: "for one thousand": if he holds a proof, otherwise it is her oath. Al-Shafi'i said: they swear mutual oaths, and the mahr al-mithl is due upon her.
Our argument is his word (peace and blessings be upon him): "the oath falls upon the defendant." And because the swearing of mutual oaths is the locus of annulment, which is impossible here. And because the obligation of the mahr al-mithl would lead the husband to take more than he claims (al-Ishraf ala nakt masa'il al-khilaf 3/397, no. 1227).
Imam Ibn Qudama (may Allah have mercy on him) says: if they agree on the khul' and differ over the amount of the compensation, its type, its lawfulness, its deferral or its description, the word belongs to the woman; Abu Bakr reported it explicitly from Ahmad, and it is the view of Malik and Abu Hanifa.
The qadi mentioned another narration from Ahmad: the word belongs to the husband, because the private parts leave his ownership; the word therefore belongs to him regarding their compensation, like the master with his mukatab.
Al-Shafi'i said: they swear mutual oaths, for it is a disagreement over the compensation of the contract; they therefore swear oaths over it, like the two parties of a sale who differ over the price.
Our argument: it is one of the two types of khul'; the word therefore belongs to the woman, as in divorce for money when they differ over its amount. And because the woman denies the excess in the amount or the description; the word therefore belongs to her, by the word of the Prophet (peace and blessings be upon him): "the oath falls upon the defendant." As for the swearing of mutual oaths in sale, it is needed there to annul the contract; the khul' is itself an annulment, so it is not annulled.
If he says: "I separated from you by khul' for one thousand," and she says: "you separated by khul' from another woman, for one thousand charged to her": the separation takes place, and the word belongs to her in denying the compensation against herself, for she denies it. If she says: "yes, but my father or another guaranteed it to you on my behalf," the one thousand is binding upon her, by her acknowledgment; the guarantee does not discharge her debt. The same applies if she says: "I separated from you by khul' for one thousand which my father will pay you," for she acknowledged the one thousand and directed her claim against her father; her word is accepted concerning herself, not concerning another.
If he says: "you asked me for a divorce for one thousand," and she says: "it is you who asked me for three divorces for one thousand, and you divorced me once": the separation takes place by his acknowledgment, and the word belongs to her regarding the falling of the compensation. According to most jurists, one third of the one thousand is binding upon her, on the basis of their principle that if she says: "divorce me three times for one thousand" and he divorces her once, one third of the one thousand is binding upon her.
If he separates from her by khul' for one thousand, and he claims they are dinars while she says: "they are rather dirhams": the word belongs to her, as we mentioned at the start of the section. If one of the two says: "they were minted dirhams" and the other: "unminted," the word belongs to her; except according to the narration reported by the qadi: the word then belongs to the husband in these two questions. If they agree on the general, unqualified divorce, the one thousand is due in the predominant currency of the land; if they agree that they meant dirhams, what their intention pointed to is binding; if they differ over the intention, its ruling is that of the woman divorced in general terms: the predominant currency of the land.
The qadi said: if they differ over the intention, the dower named in the contract becomes due, because their difference makes the land indeterminate, so that the dower named in marriage becomes due.
The first view is the sounder: had they divorced in general terms, the specification of the currency would have been valid, and the one thousand would have been due in the predominant currency of the land; their generalizing would not have constituted an indeterminacy preventing the validity of the compensation; the same applies when they differ. And because he validates the indeterminate compensation when its indeterminacy does not exceed that of the mahr al-mithl, like an unspecified slave, a camel or a horse; the indeterminacy here is smaller: validity is therefore preferable (al-Mughni 7/274).
The Shafi'is hold that if the two spouses agree on the khul' but differ over the type of the compensation, dirhams or dinars, or over its description, sound or debased currency, or over its amount, one thousand dirhams while she says: "rather five hundred," or over its kind, its term or the length of its term, and no proof comes from either of them, or proofs of both contradict each other: they swear mutual oaths, like the two parties of a sale in the manner of swearing. After their mutual annulment or the annulment by one of them, the mahr al-mithl becomes due, even if it exceeds what the husband claims, because it is the counter-value of the private parts, which cannot be returned. If either of them establishes a proof, judgment is given in his favor by it (al-Bayan 10/60; al-Najm al-Wahaj 7/473; Mughni al-Muhtaj 4/452; Tuhfat al-Muhtaj 9/312; al-Dibaj 3/397).
Imam al-Amrani (may Allah have mercy on him) says: if they differ over the amount of the compensation, one saying: "I separated from you by khul' for two thousand dirhams" and the other: "rather for one thousand"; or over its description, saying: "for one thousand dirhams of the currency of such a land" and she: "rather for one thousand dirhams of the currency of such another land"; or over the specified object of the compensation, saying: "for this slave girl" and she: "rather for this male slave"; or over its immediate or deferred payment, saying: "for one thousand dirhams paid immediately" and she: "rather for one thousand dirhams deferred"; or over the number of divorces, she saying: "I gave you one thousand so that you divorce me three times" and he: "rather you gave me one thousand so that I divorce you once, and I shall divorce you no more": they swear mutual oaths over all of this, by negation and affirmation, as we said of the two parties of a sale.
Abu Hanifa and Ahmad said: the word belongs to the woman.
Our argument: the khul' is a contract of exchange; when they differ over the amount of its compensation, its description or its counter-value, they swear mutual oaths like the two parties of a sale. Once this is established, if they swear mutual oaths, it requires the annulment of the contract; but here the khul' cannot be annulled, for it admits no annulment: the compensation named in the contract therefore falls, and the mahr al-mithl becomes due upon her, like the two parties of a sale who differ after the loss of the goods.
According to the statement of those of our companions who say: "the seller returns the lesser of the two: the price he claims or the value of the goods": the husband here returns the lesser of the two: the compensation he claims or the mahr al-mithl.
If they differ over the number of divorces, only what the husband acknowledges occurs (al-Bayan 10/60, 61).