Khul' before consummation

This part belongs to the full section: All sections of this part.

This continuation of the chapter on khul' first deals with khul' before the marriage is consummated, then with the fourth pillar of the khul' contract, the compensation (al-iwad), and its two issues: the unknown compensation and the compensation that lacks value. There follow the fifth pillar, the formula (as-sigha), and finally the question of suspending the khul' upon a condition and attaching it to a term, with the positions of the four schools and the classical references.

Khul' before consummation

The Shafi'is, according to the preferred view, hold that the khul' of a woman already repudiated by a revocable divorce is not valid, because ownership has gone and there is no longer any need for ransom; the separation then takes place in a revocable manner, as in the divorce pronounced by the spendthrift. It is also said: her khul' is valid with the third repudiation and not with the second, thereby producing the major separation (Rawdat al-Talibin, 5/251; al-Najm al-Wahhaj, 7/438; Asna al-Matalib, 3/248; Mughni al-Muhtaj, 4/433; Tuhfat al-Muhtaj, 9/243).

Khul' before consummation: the jurists differ over the case of a husband who makes khul' with his wife before consummating the marriage: is the mahr split in half or does it fall away entirely?

The Shafi'is and the Hanbalis hold that any separation coming from the husband, such as khul' before consummation, makes due half of the specified mahr, by the word of Allah:

"If you divorce them before you have touched them, and you have already appointed for them an obligation, then half of what you appointed is due to them."

Surah Al-Baqarah, 229

The analogy was extended to everything over which the husband has exclusive control, for it shares the same meaning. The mahr is split by khul' only because the husband's side predominates in it, the proof being that the khul' is valid whether performed by her or by another, so that the husband is like one who holds it exclusively (al-Hawi al-Kabir, 9/521, 523; al-Muhadhdhab, 2/59; al-Bayan, 9/434, 439; Rawdat al-Talibin, 5/149, 179; Kifayat al-akhyar, p. 425; al-Najm al-Wahhaj, 7/341; Mughni al-Muhtaj, 4/383-384).

The Shafi'is specify that the dower is split in two by divorce and khul' before consummation, even if the woman has the choice: for example, if the husband delegated the divorce to her and she repudiated herself, or if he suspended the divorce upon her act and she performed it, as if he had suspended her divorce upon her entering the house and she entered. If he makes khul' before consummation for something other than the dower, he takes the amount agreed upon and she receives half of the dower. If he makes khul' against her own dower, he has dealt with his property and with hers, since half of the dower returns to him through the khul'; the separation takes place and the specification of the mahr is voided in both shares, and the husband has an option if he was ignorant of this splitting: if he annuls it, he owes her the dower of the like (mahr al-mithl) according to the preferred view, or according to the other view the specified amount as replacement, the like if it is a comparable value or its value; if he confirms it, he owes her half of the dower of the like according to the preferred view, or the equivalent of half of the dower or its value.

The Hanbalis likewise said that separation coming from the husband, such as khul' before consummation, makes due half of the specified mahr, by the same verse, and they extended the analogy to everything over which the husband has exclusive control, for the same reason: the husband's side predominates in the khul', since it is valid whether performed by her or by another.

If the husband makes khul' before consummation against half of her dower, this is valid, and the entire dower becomes his: half by divorce and half by khul' as compensation. If he makes khul' before consummation against the like of half of the dower owed by her, while she has not yet received the dower, this is valid and the entire dower falls away: half by divorce and half by compensation, wherever it is found with its conditions.

If the woman says to her husband before consummation and before receiving the dower: "Make khul' with me against what is handed over to me of my dower," or "Make khul' with me on condition that I renounce all right over the dower," and he does so by dealing on those terms, the khul' is valid: this amounts to her asking for khul' against half of the dower, and the husband is absolved of the whole of it, half by the khul' and half because she made it compensation for him. If he makes khul' before consummation against the like of the entire dower owed by her, or against her whole dower, the khul' is valid, since it proceeds from her side in its proper place; he recovers from her half, and the dower falls away.

If the husband grants her the choice and she chooses for herself, or delegates the divorce to her and she repudiates herself, it is like his own divorce: her mahr does not fall away, for although the woman directly performed the divorce, she acts in the husband's place as his agent, and the act of the agent is like the act of the principal, so that everything proceeds as if the divorce came from him directly. And if he suspended her divorce upon an act from her, her mahr does not fall away: the cause emanates from him and she merely fulfilled his condition, and the ruling is attributed to the author of the cause.

The Shaykh of Islam Ibn Taymiyyah (may Allah have mercy on him) said that if the husband suspended her divorce upon an attribute of her act from which she benefits, such as her entering the house of a stranger, and she performed it before consummation, she then has no mahr; Ibn Rajab gave strength to this view.

The Hanafis and the Malikis, in sum and with details within their school, hold that if the woman makes khul' from her husband before consummation, she gets nothing and the dower is not split in half.

The Hanafis say: if she makes khul' before consummation for a thousand while her mahr is a thousand and she has received nothing, the analogy requires that she owe five hundred to the husband, for five hundred of the mahr fell away by divorce before consummation and the woman committed herself to the thousand; half of the thousand falls from her debt by way of compensation, since she retains a claim of five hundred against the husband after the fall of half of the mahr, so that she owes five hundred beyond the thousand, to complete the thousand to which she committed herself. According to istihsan, nothing is due from her, for the husband's aim was the falling away of the entire mahr from his debt, and this has occurred: nothing more is therefore required of her. As for the case where she received the whole mahr, the analogy requires that she return a thousand and five hundred: the thousand as compensation for the khul' and five hundred as half of the mahr for the divorce before consummation. According to istihsan, she returns the thousand only: five hundred as compensation for the khul' and five hundred by the divorce before consummation (al-'Inayah, 5/500; Bada'i' al-sana'i', 2/295).

Al-Kasani (may Allah have mercy on him) said: among the things that cause the entire mahr to fall away is the khul' against the mahr before or after consummation: if the mahr has not been received, it falls from the husband's obligation; if it has been received, she returns it to him; and if he made khul' against property other than the mahr, that property is due from her, and the husband is absolved of every right that became due to her through the marriage, such as the mahr and past maintenance, according to Abu Hanifah, for the khul', although it is a divorce against compensation in our school, carries the meaning of absolution (Bada'i' al-sana'i', 2/295).

Another detail is related by Imam al-Haddad (may Allah have mercy on him) in "al-Jawharah," where he says: his statement "and al-mubarat is like the khul'" is understood thus: that he say "you are absolved of the marriage between us against a thousand" and she accept. His statement "the khul' and the mubarat drop every right of each of the two spouses against the other arising from the marriage, according to Abu Hanifah" refers to the marriage standing at the time of the mubarat; as for a prior marriage, they do not drop its rights. Abu Yusuf said about the mubarat what Abu Hanifah said; as for the khul', it is like a divorce against property: it drops only what they named.

Muhammad said of both that only what they named drops. The form of the question: if she makes khul' against a named thing, goods or a debt, and the mahr is something else and remains in the husband's obligation, whether he consummated or not, what she named is due from her and she has nothing of the mahr against him according to Abu Hanifah; according to the two companions, she may claim the mahr if he consummated, or half of it otherwise. If she had received the mahr and then he makes mubarat or khul' before consummation for something, this is permitted and the mahr remains entirely hers, and neither of the two pursues the other after the khul' or the mubarat for anything of the mahr. Likewise, if she had received half of the mahr, less or more, and then made khul' against named dirhams before consummation: the husband takes what she named, and nothing of the mahr in their hands is owed by one to the other.

In "al-Tatimmah": if he makes khul' against known property without mentioning the mahr and she accepts, does the mahr fall away? This is a point of dispute: according to Abu Hanifah it falls; according to the two it does not, and she may claim it if he consummated, or half of it otherwise. In its commentary: if he makes khul' or mubarat against a slave, a garment or dirhams while the mahr is something else, he has nothing beyond that; if he had already given her the mahr, he takes back nothing from her; if it was before consummation and he gave her nothing of it, she has nothing against him: this is Abu Hanifah's view, which Abu Yusuf followed in the mubarat; as for the khul', he did not follow him in it and said that the khul' does not entail that. Muhammad said of both that it is like a divorce against property: Abu Yusuf is thus with Muhammad in the khul' and with Abu Hanifah in the mubarat.

It is said in "al-Yanabi'": if the khul' is pronounced with the word of khul', the husband is absolved of every right that became due to her through the marriage, such as the mahr, past maintenance and past clothing, but the maintenance of the 'iddah does not fall; and if it is pronounced with the word of mubarat, it is the same according to Abu Hanifah: if she had received her mahr, it is handed over to her, otherwise she has nothing against the husband, whether before or after consummation. Abu Yusuf said: if it is with the word of mubarat, it goes as Abu Hanifah said; if it is with the word of khul', only what they named drops. Muhammad said: only what they named drops, whether with the word of khul' or of mubarat; according to his view, if it was before consummation and she had received her mahr, she owes back half of it; if it was after consummation, the mahr remains hers and he has against her all that she named. They finally agree that a debt between them arising from another cause does not fall away, which the shaykh guarded against by his phrase "of the rights of the marriage" (al-Jawharah al-nirah, 4/524, 527; al-Lubab, 2/120).

The Malikis say: when the adult, sane woman makes khul' from her husband before consummation by saying to him "make khul' with me against such a thing," only one of the following cases applies. Either she says "make khul' with me against such a thing, for instance ten dinars, of my dower": she then has half of what remains after he takes the ten, as if her dower were thirty and she said "make khul' with me against ten of my dower," she has half of what remains, namely ten of twenty. Or she says "make khul' with me against such a thing, ten dinars for instance," without saying "of my dower": she has no half of the dower and is entitled to nothing of the dower, for the word of khul' implies the relinquishment of all her rights against him, and she pays what she dealt for out of her property in addition to the dower; if she had received it, she returns it and pays the mentioned property on top. If she says "divorce me against ten" without saying "of my dower" and he divorces her, she has the whole half and pays only that against which the divorce took place (al-Taj wa-l-iklil, 2/611-612; Sharh Mukhtasar Khalil, 3/289-290; Tathbir al-Mukhtasar, 3/64; al-Sharh al-kabir with Hashiyat al-Dasuqi, 3/181-182).

The fourth pillar: the compensation, the thing given in exchange for the khul'

The compensation (al-iwad) is what the husband takes in return for the khul' he grants his wife. Several issues follow from this. The first: is the presence of a compensation a condition for the validity of the khul'?

The jurists differ: does the khul' require a compensation, or is it valid without one? The Hanafis and the Hanbalis according to the school (and one Shafi'i view) hold that the compensation is a condition of validity and that the khul' is valid only with it, for the compensation is a pillar of it, like the price in a sale; without it there is neither khul' nor divorce, since what is not valid produces nothing, like a corrupted sale. If, however, he utters the word of divorce or intends it, it is a revocable divorce, for the divorce involves no compensation and remains revocable like any other, and because it can serve as an allusive form (kinayah) of divorce: if he did not intend a divorce by it, nothing happens; for if the khul' were a rescission, the husband has the power to rescind the marriage only on account of a defect in her. Likewise, if he says "I rescinded the marriage" without intending divorce, nothing happens; it is only when the compensation enters that it becomes an exchange, and the exchange and the exchanged cannot combine.

The khul' is likewise not valid by the mere handing over of property and its acceptance, without the husband's wording, for it is a disposition over the private part against compensation, which is not valid without wording, no more than marriage and divorce; and because taking the property is a receipt of compensation, which does not stand in the place of the offer, any more than the receipt of one of the two counter-values in a sale.

As for the hadith of Jamilah, to whom the Messenger of Allah (may the prayer and peace of Allah be upon him) said "Will you return his garden to her?", al-Bukhari related it with the wording: "Accept the garden and divorce her with a definitive divorce," which is explicit on taking the wording into account; in a version: "he ordered him and he separated from her." Whoever did not mention the separation confined himself to part of the story; the addition of a trustworthy narrator is accepted, and perhaps the narrator deemed it superfluous to mention the wording after the compensation, since it is known from it. On this basis the statement of Ahmad and other imams is interpreted; likewise, they mentioned no wording nor circumstantial indication from the wife's side, whereas there is consensus that one is required. Indeed, the offer and the acceptance are required in the same session: that he say "I make khul' with you against such a thing" and she reply "I accept" or similar (al-Mughni, 7/257; al-Mubdi', 7/229; al-Insaf, 8/396; Kashshaf al-Qina', 5/248-249; Sharh Muntaha al-iradat, 5/343-344; Matalib uli al-nuhah, 5/299; Manar al-sabil, 3/70, 72).

The Hanafis say: the khul' against property effects a definitive separation, whether or not he intended divorce, for the mention of property in exchange for the khul' necessarily makes the exit from the marriage intended: intention is no longer needed. As for the khul' against something other than property, if he intends divorce by it, it occurs, otherwise not, for it is an allusive form among those of divorce. As soon as property is given, the property dispenses with intention, for she hands over the property only so that she herself be freed, which is obtained through the separation (Bada'i' al-sana'i', 3/151; al-Bahr al-ra'iq, 4/206; al-Jawharah al-nirah, 4/515; al-Lubab, 2/116).

The Malikis according to the well-known view, the Shafi'is according to one view and the Hanbalis according to one view hold that the khul' is valid without compensation.

Imam Ibn Qudamah (may Allah have mercy on him) relates a question of his choice: if he makes khul' without compensation, it is a khul' and he is entitled to nothing.

The narrations from Ahmad differ on this question. His son Abdallah related from him: I said to my father: a man's wife says to him "make khul' with me," and he answers "I have made khul' with you." He said: he may marry her with a new marriage contract, she being with him as it were counted twice; and the apparent meaning of this is the validity of the khul' without compensation: it is Malik's view, for it is a breaking of the marriage valid without compensation like the divorce; and because the origin of the prescription of the khul' is that the woman feels aversion toward her husband and the need to part from him, so that she asks him for the separation; when he grants it, the purpose of the khul' is attained, and it is valid as if there were compensation. Abu Bakr said: there is no disagreement, on the authority of Abu Abdillah (Ahmad), that the khul' comes from the women's side; when it comes from the men's side, there is no dispute that it is a divorce opening the right of return, not a rescission.

The second narration: the khul' takes place only against compensation. Muhannā related: if he says to her "make khul' of yourself" and she says "I have made khul' of myself," it is a khul' only against something, unless he intends divorce by it and then obtains what he intended. According to this narration, the khul' is valid only with compensation: if he pronounces it without compensation while intending divorce, it is a revocable divorce, for it can serve as an allusive form of divorce; if he does not intend divorce by it, nothing happens: this is the view of Abu Hanifah and al-Shafi'i, for if the khul' were a rescission, the husband has the power to rescind the marriage only on account of a defect in her; likewise, if he says "I rescinded the marriage" without intending divorce, nothing occurs, unlike the case where the compensation enters: it becomes an exchange, and the exchange and the exchanged cannot combine. And if one says "the khul' is a divorce," it is not explicit in any way, it is an allusion, and the divorce occurs by an allusion only with intention or with the handing over of the compensation standing in place of intention, and neither of the two was found here. And if the divorce does occur: lacking compensation, it does not entail definitive separation, unless the three divorces are completed (al-Mughni, 7/257; Sharh al-Zarkashi, 2/454).

Imam Ibn Abd al-Barr (may Allah have mercy on him) said: if one intends to effect the khul' without compensation, it is a khul' according to Malik and the divorce is definitive. It was related from him that he said: it is definitive only with compensation, and this is the sounder of his two views in my estimation and in that of the people of knowledge and scrutiny (al-Kafi, 1/276).

Imam al-Qurtubi (may Allah have mercy on him) said: Malik's view diverged concerning one who intends to effect the khul' without compensation. Abd al-Wahhab said: it is a khul' according to Malik and the divorce is definitive. It was also related from him that it is definitive only with compensation, which Ashhab and al-Shafi'i said, for it is a divorce devoid of compensation and of completion of the count, hence revocable, as if pronounced with the word of divorce. Ibn Abd al-Barr said: this is the sounder of his two views in my estimation and in that of the people of knowledge in scrutiny. The basis of the first view is that the absence of compensation does not remove the khul' from its purport, for instance the khul' against wine or pork (Tafsir al-Qurtubi, 3/145; see al-Taj wa-l-iklil, 3/21; Sharh Mukhtasar Khalil, 4/15).

The Shaykh of Islam Ibn Taymiyyah (may Allah have mercy on him) said: may the husband make his wife definitive without compensation? There are three views. The first: he may not make her definitive except with compensation, and if he divorces her after consummation without compensation, it is revocable: this is the school of al-Shafi'i, one of the two views of the Maliki school and one of the two narrations from Imam Ahmad. The second: he makes her definitive without compensation absolutely, whether or not she consents: this is the school of Abu Hanifah and a narration from Imam Ahmad. The third: he may make her definitive without compensation in some cases and not in others: if she chooses separation without compensation, he may make her definitive; the khul' is valid without compensation and produces separation, whether as a divorce or as a rescission according to one of the two views: this is the well-known Maliki school in the narration of Ibn al-Qasim, and the other narration from Imam Ahmad, chosen by al-Khiraqi. This third view has two bases: the first, the return (al-raj'ah) is a right of both spouses, and when they agree to drop it, it is dropped; the second, it is a separation with compensation, for she consents to waive maintenance and lodging, and he consents to waive her return; just as he may make the compensation the dropping of rights established for her, such as a debt, he may make it the dropping of what was established for the two of them by divorce, such as the child's maintenance: this is a strong view, included in maintenance chargeable to another (al-Ikhtiyarat, p. 362; al-Fatawa al-kubra, 4/566).

Imam al-Imrani (may Allah have mercy on him) said: if he says "I have made khul' with you" and she says "I accept" without mentioning the compensation: if we say the khul' is a divorce, and he intends one by it, it occurs revocably and she owes him nothing, since she committed herself to no compensation; if we say the khul' is a rescission, there are two aspects: the first, it is nothing, since he mentioned no property; the second, it is a corrupted khul', and the dower of the like is due from her, for the explicit word of khul' was indeed pronounced. The same applies if he says "I sold you this slave" and he answers "I accept" without mentioning the price, and the buyer takes possession: two aspects, it is not a sale and the property is then a deposit entrusted in the buyer's hand, or it is a corrupted sale and he is liable for it upon taking possession (al-Bayan, 10/19).

Imam al-Nawawi (may Allah have mercy on him) said: does the absolute khul', pronounced without mention of property, entail the establishment of property? There are two aspects, the sounder of the two according to the Imam (al-Shafi'i), al-Ghazali and al-Ruyani being yes, by custom, like the khul' against wine; the second being no, for lack of commitment. If we establish the property: if we deem the statement a rescission, or explicit of divorce, or an allusive form with intention, the dower of the like is due and separation occurs; if it is an allusive form without intention, no. If the property is not established at the moment of the divorce: if we deem the statement a rescission, no, for rescission by mutual consent occurs only with compensation, as the Imam and others related from the companions, whose tendency was that if the compensation were negated, the khul' would not be valid according to the rescission view. The Imam said: the true analogy is its validity without compensation (al-Bayan, 10/19).

The amount of the khul'

If we deem the statement a divorce, explicit or allusive with intention, it is a revocable divorce. There are two aspects on the requirement of the woman's acceptance: the sounder is that it is not required, so validated by the Imam (al-Shafi'i) and settled decisively by al-Baghawi, the husband alone holding power over the revocable divorce. The two aspects concern the case where he says "I have made khul' with you" implying that he seeks her answer and awaiting her acceptance; but if he says "I made khul' of myself" or "I made khul' with you" without implying the seeking of an answer, no answer is required at all, as if he said "I separated from you." If he intended property without mentioning it, and we say that the absolute form does not entail property: does intention establish the property? There are two aspects, by analogy with the sale contract concluded through allusive forms. If we say it establishes it, the property is established, and her intention is required as well; if we say it does not, does the divorce occur with the property annulled, or does it not occur because he intended divorce against property and not absolutely? There are two aspects. In the "Fatawa al-Baghawi" there are two aspects on the case where she makes khul' of herself against the remainder of her dower and he deals on that basis while nothing remains owed to her: does separation occur with the dower of the like? Obtaining it was given preference (Rawdat al-Talibin, 5/239-240).

The second issue: the amount of the khul'. The people of knowledge agree that when the woman makes khul' from her husband against the amount of what he gave her as dower, while he has caused her no harm, the khul' is permitted.

Imam Ibn Abd al-Barr (may Allah have mercy on him) said: the scholars agree on the permissibility of the khul' against the dower he gave her, if it is not harmful to her and both fear not upholding the limits of Allah (al-Tamhid, 23/368). But it befits the Muslim to take less than the mahr, so that intimacy not be devoid of payment (Majma' al-anhar, 2/102).

The jurists nevertheless differ over the khul' against more than her mahr: is it permitted absolutely, without disapproval? permitted with disapproval? or forbidden, the excess having to be returned? The majority of jurists, the Hanafis according to one view, the Malikis, Shafi'is and Hanbalis according to the school, hold that the khul' against little or much property, against more than the dower, or against her entire wealth, is permitted when it comes from her, by the word of Allah:

"No blame is there upon the two of them for that by which she ransoms herself."

Surah Al-Baqarah, 229

the verse being general; and because the compensation is a counter-value whose transfer of ownership is valid, the khul' against it is therefore permitted as against the dower.

Imam Malik (may Allah have mercy on him) said: I have constantly heard the permission of the ransom against more than the dower, but it is not among the noble traits of character, and I have seen no one among the people of knowledge disapprove of it. If the recalcitrance comes from her, it is permitted for the husband to take what he took from her by khul', even more than the dower, if she consents and it does her no harm; if it is for fear of his harm, of an injustice done to her, or of damage, it is not permitted for him to take it, and if he took something on that basis, he returns it and the khul' stands (al-Tamhid, 5/341, 23/368; al-Ishraf 'ala nukat masa'il al-khilaf, 3/379-380, no. 1209; Tafsir al-Qurtubi, 3/141; al-Ifsah, 2/163).

The Shafi'is say: the khul' is valid with the specified mahr, with less, or with more, by "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229) without distinction, and because it is a counter-value acquired by contract, which is not quantified like the mahr and the price; it is valid against a debt, a commodity or a usufruct, as with the mahr (al-Bayan, 10/10; Rawdat al-Talibin, 5/252; al-Najm al-Wahhaj, 7/439; Mughni al-Muhtaj, 4/433-434).

Imam Ibn Qudamah (may Allah have mercy on him) relates a question of his choice: it is not recommended for the husband to take more than he gave her. This statement indicates the validity of the khul' against more than the dower, and that when the two spouses agree upon the khul' against something, it is valid: it is the view of most of the people of knowledge, related from Uthman, Ibn Umar, Ibn Abbas, Ikrimah, Mujahid, Qabisa ibn Dhu'ayb, al-Nakha'i, Malik, al-Shafi'i and the people of opinion. It is related from Ibn Abbas and Ibn Umar that they said: if a woman were to make khul' from her husband against her inheritance and her braids, that would be permitted. 'Ata, Tawus, al-Zuhri and Amr ibn Shu'ayb said that he does not take more than he gave her; this was related from Ali with an interrupted chain, and Abu Bakr chose it, saying that if he did so, he would return the excess. Sa'id ibn al-Musayyib said: I do not see that he should take all her wealth, but that he leave her something.

They argued with what is related of Jamilah bint Salul, who came to the Prophet (may the prayer and peace of Allah be upon him) and said:

By Allah, I find no fault with Thabit, neither in his religion nor in his character, but I hate disbelief within Islam, and I cannot bear it out of aversion. The Prophet said: Will you return his garden to her? She said: Yes. The Prophet then ordered him to take back from her his garden and nothing more.Related by Ibn Majah (2056), authentic hadith

And because the compensation is a counter-value given in exchange for a rescission, he does not exceed its measure, as at the origin of the contract, like the compensation in the mutual rescission (iqalah). Our proof [the Hanbali one] is the word of Allah "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229), and the statement of those we have named among the Companions. al-Rabi' bint Mu'awwidh said: "I made khul' from my husband against less than my braids, and Uthman ibn Affan (may Allah be pleased with him) permitted it"; such a thing spread without being disapproved, which amounts to consensus, whereas the contrary was not established as authentic from Ali. This being established, it is not recommended for the husband to take more than he gave her, as said by Sa'id ibn al-Musayyib, al-Hasan, al-Sha'bi, al-Hakam, Hammad, Ishaq and Abu Ubayd: if he does so, it is permitted with disapproval, whereas Abu Hanifah, Malik and al-Shafi'i did not disapprove of it. Malik said: I have constantly heard the permission of the ransom against more than the dower. Our proof is the hadith of Jamilah, and it is related from 'Ata, from the Prophet (may the prayer and peace of Allah be upon him), that he disapproved of taking from the woman who makes khul' more than he gave her, related by Abu Hafs with his chain, a statement explicit on the ruling. We therefore combine the verse and the report, saying: the verse indicates permission, and the prohibition of the excess indicates disapproval, and Allah knows best (al-Mughni, 7/247; al-Kafi, 3/152; Sharh al-Zarkashi, 25/451; al-Mubdi', 7/230; al-Insaf, 8/398; Manar al-sabil, 3/72).

The Hanafis and Imam Ahmad, according to a narration chosen by Abu Bakr, hold that he may not take more than he gave her, by the hadith of Ibn Abbas (may Allah be pleased with them), which is the version of the account of Jamilah cited above (related by Ibn Majah, 2056).

'Ata related that a woman came complaining of her husband to the Prophet (may the prayer and peace of Allah be upon him):

He said: Will you return his garden to her? She said: Yes, and more. He said: As for the excess, no.Related by Abu Dawud in al-Marasil (235) and al-Bayhaqi in as-Sunan al-Kubra (14621)

Al-Daraqutni related from Abu al-Zubayr that Thabit ibn Qays ibn Shammās had as wife Zaynab bint Abdallah ibn Ubayy ibn Salul, and had given her a garden as dower which she disliked. The Prophet (may the prayer and peace of Allah be upon him) said:

Will you return to her the garden he gave you? She said: Yes, and more. The Prophet said: As for the excess, no, but his garden. She said: Yes. He took it from her and let her go. When this reached Thabit ibn Qays, he said: I have accepted the judgment of the Messenger of Allah.Related by al-Daraqutni in his Sunan (3629)

Al-Daraqutni said that Abu al-Zubayr had heard it from more than one; al-Hafiz Ibn Hajar (may Allah have mercy on him) writes in "Fath al-Bari" (9/402) that the men of its chain are trustworthy, and that if a Companion is among them the hadith is authentic, otherwise it is supported by what precedes. And because the compensation is a counter-value given in exchange for a rescission, he does not exceed its measure, as at the origin of the contract, like the compensation in the mutual rescission (al-Mughni, 7/247; al-Kafi, 3/152; Sharh al-Zarkashi, 25/451; al-Mubdi', 7/230; al-Insaf, 8/398; Manar al-sabil, 3/72).

The Hanafis say: when the recalcitrance comes from the husband, he is disapproved for taking from her little or much, by the word of Allah:

"If you wish to replace one wife with another and you have given one of them a quintal, take nothing back from it."

Surah An-Nisa, 20

Allah forbade taking back anything of the dower given to the wife, and He reinforced the prohibition with:

"Would you take it back by way of slander and manifest sin?"

Surah An-Nisa, 20

as well as with:

"And do not press them so as to take back part of what you gave them, unless they commit a manifest indecency."

Surah An-Nisa, 19

Husbands are forbidden to take back anything of what they gave them, their recalcitrance being excepted; the ruling of the excepted contradicts that of the excepted-from, which implies the prohibition of taking back anything of what was given them in the absence of recalcitrance. This belongs to the religious ruling: if he took, the act is valid at the level of the ruling and stands, without his being able to claim it back, for the husband relinquished his ownership against a compensation she accepted, the husband being among those who may relinquish and the woman among those who exchange and consent; the act is therefore valid at the level of the ruling and of the court.

If the recalcitrance comes from her, or both fear her bad character or the hatred of each for the other, he may take what he gave her, without adding to it, and he is disapproved for taking more, by what Abu Dawud related in "al-Marasil" from 'Ata: a woman came complaining of her husband to the Prophet; he said "Will you return his garden to her?", she said "Yes, and more," he said "As for the excess, no"; and because he owes her nothing: he merely lifts the contract, so that he may take from her the measure of what he transferred to her by the contract, and he may not add to it. But it befits the Muslim to take less than the mahr, so that intimacy not be devoid of payment (Majma' al-anhar, 2/102).

As for the word of Allah: "If they willingly give up to you any part of what you appointed, then enjoy it freely and pleasantly" (Surah An-Nisa, 4), it concerns a case other than the khul', namely her waiving the mahr of her own accord; and the statement of the one who says that, since the husband may take her property without khul' with her consent, it is permitted in the khul', is an error: Allah legislated both cases, prohibiting in the one, by "If you wish to replace one wife with another" (Surah An-Nisa, 20) and "It is not lawful for you to take back anything of what you gave them, unless the two fear not upholding the limits of Allah" (Surah Al-Baqarah, 229), and permitting in the other by "If they willingly give up to you..." (Surah An-Nisa, 4).

Abu Bakr al-Jassas (may Allah have mercy on him) said that the statement of the one who argues thus contradicts the text of the Book. The following account is related of the Prophet (may the prayer and peace of Allah be upon him) concerning the khul':

Habibah bint Sahl al-Ansariyyah was the wife of Thabit ibn Qays ibn Shammās. The Messenger of Allah (may the prayer and peace of Allah be upon him) went out at daybreak and found Habibah bint Sahl at his door in the early dawn. He said: Who is this? She said: I am Habibah bint Sahl. He said: What is your matter? She said: There is nothing left between me and Thabit ibn Qays, my husband. When Thabit ibn Qays came, he said to him: This is Habibah bint Sahl; she mentioned what Allah willed her to mention. Habibah said: Everything he gave me is here. The Messenger of Allah said to Thabit: Take it back from her. He took it from her and she settled among her family.Related by Malik in his chain, with the chain cited by al-Jassas in Ahkam al-Qur'an (2/91, 93)

Various wordings are related: in one "let her go," in another "separate from her." And it was said that he cannot take from her more than he gave her, by what Abd al-Baqi ibn Qani' related: a man was in dispute with his wife before the Prophet; the Prophet said "Will you return to him what you took from him?", she said "Yes, and more," the Prophet said "As for the excess, no." Our companions [the Hanbalis] say he takes no excess by this report, and they specified it against the apparent meaning of the verse (Ahkam al-Qur'an of al-Jassas, 2/91, 93).

In a narration related in "al-Jami' as-saghir," there is no harm in taking the excess, by what is related:

A recalcitrant woman was brought to Umar (may Allah be pleased with him), who confined her for three days in a dunghill, then summoned her and said: How did you find your bed? She said: No nights seemed sweeter to my eye than these, for I did not see him. Umar said: Is recalcitrance anything but this? Make khul' with her, even for her earring.Related in al-Jami' as-saghir

From Ibn Umar (may Allah be pleased with him): "A freedwoman made khul' with everything she possessed, and no fault was found with her for it." And from Ibn Abbas (may Allah be pleased with them): "If she were to make khul' with everything she possessed, I would permit it." This is because the taking of property here occurs by way of deterring her from recalcitrance; that is why it is not permitted when the recalcitrance comes from the husband, and it is not restricted to the dower he transferred to her. As for the level of the ruling, the khul' is valid and the property is due (al-Mabsut, 6/183).

Imam al-Kasani (may Allah have mercy on him) said: to know what it is permitted for the husband to take as compensation and what is not, in sum: the recalcitrance comes either from the husband or from the woman. If it comes from the husband, he may not take anything of the compensation from the one making khul', by the verses "If you wish to replace one wife with another and you have given one of them a quintal, take nothing back from it" (Surah An-Nisa, 20), "Would you take it back by way of slander and manifest sin?" (Surah An-Nisa, 20) and "And do not press them so as to take back part of what you gave them, unless they commit a manifest indecency" (Surah An-Nisa, 19): husbands are forbidden to take back anything of what they gave them, their recalcitrance being excepted; the ruling of the excepted contradicts that of the excepted-from, which implies the prohibition in the absence of recalcitrance. This belongs to the religious ruling: if he took, the act is valid at the level of the ruling and stands without possibility of reclaiming it, for the reasons already given. If the recalcitrance comes from her, nothing prevents his taking from her the measure of the mahr, by "unless they commit a manifest indecency" (Surah An-Nisa, 19), that is, unless they rebel, the exception to the prohibition amounting to permission apparently; and by "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229), concerning which it was said that no blame falls on the husband in the taking nor on the woman in the giving.

As for the excess over the measure of the mahr, there are two narrations: it is mentioned in the book of divorce that it is disapproved; it is likewise related from Ali (may Allah be pleased with him) that he disapproved of the husband's taking from her more than he gave her, this being the view of al-Hasan al-Basri, Sa'id ibn al-Musayyib, Sa'id ibn Jubayr and Tawus. But in "al-Jami' as-saghir" it is mentioned that it is not disapproved: this is the view of Uthman al-Batti, and al-Shafi'i adopted it. The basis of this latter narration is the apparent meaning of "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229), which lifts the blame from the two of them, in the taking and in the giving, for the ransom, without distinction between the dower of the like and the excess over it, so that one must act upon the generality of the text; and because she gave her property of her own accord, Allah having said: "If they willingly give up to you any part of what you appointed, then enjoy it freely" (Surah An-Nisa, 4). This in contrast to the case where the recalcitrance comes from him: in that case she is compelled to hand over the property, for it appears that with her aversion to the husband she gives only when compelled from his side by devices, or deceived by forms of trickery and forgery, so that the taking was disapproved.

The basis of the first narration is the word of Allah: "It is not lawful for you to take back anything of what you gave them, unless the two fear not upholding the limits of Allah" up to "No blame is there upon the two of them for that by which she ransoms herself" (Surah Al-Baqarah, 229): He forbade taking back anything of the dower he gave her, and excepted the amount given as dower in the case of their fear of not upholding the limits of Allah; now the prohibition of taking anything of the dower entails, a fortiori, the prohibition of the excess over the dower, like the prohibition of the lesser obscurity which entails that of what exceeds it.

It is related that when the Messenger of Allah (may the prayer and peace of Allah be upon him) said to the wife of Thabit ibn Qays ibn Shammās "Will you return his garden to her?", and she said "Yes, and more," and he said "As for the excess, no," he forbade the excess even though the recalcitrance came from her; and from this it is known that "for that by which she ransoms herself" (Surah Al-Baqarah, 229) means the measure of the mahr, not the excess over it, although its apparent meaning is general: we know it by the Prophet's explanation (may the prayer and peace of Allah be upon him), which is a revelation not recited. Proof further lies in the word of Allah at the beginning of the verse: "It is not lawful for you to take back anything of what you gave them" (Surah Al-Baqarah, 229): He mentioned at the beginning of the verse what he gave her, so that what is mentioned at the end, "for that by which she ransoms herself," refers back to the beginning; the expression therefore means what he gave her, and on this basis we say that he may take only the measure of what he gave her.

As for the objection that she gave him her property of her own accord, it is true, but it is a proof of permission, by which we say that the excess is valid at the level of the ruling and of the court; and because the khul' from her side is an exchange in place of the divorce, and the relinquishment of her ownership and the handing over of property in return for a thing that is not property is valid at the level of the ruling when it is desirable. Does one not see that manumission is permitted against little or much property, and the taking of property in exchange for the relinquishment of ownership and slavery; likewise the amicable settlement over intentional bloodshed; likewise marriage, permitted against more than the dower of the like although it is the counter-value of the private part, so that the woman may guarantee the khul' against more than the dower of the like, the counter-value being the integrity of the private part in both cases; only, He forbade the excess over the measure of the mahr not for a defect in the contract itself, but its basis lies elsewhere.