Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > Marrying on Condition of No Maintenance
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
This second part of the nikah chapter completes the study of the null conditions that may occur in the marriage contract: absence of maintenance, the wife supporting the husband, waiving the sharing of nights, abstention from consummation, divorcing the co-wife, and excluding mutual inheritance. It then deals with khul', divorce by ransom: its legitimacy through the Quran, the Sunnah, consensus and reason, its three categories, its legal nature between dissolution and irrevocable divorce, the stratagem aimed at preventing the divorce from taking effect, and the question of resorting to a judge. Each question is treated according to the explicit positions of the four schools, with their classical references.
What is the ruling if a man marries a woman on condition that he does not maintain her and she supports herself? The majority of jurists, namely the Hanafis, Shafi'is and Hanbalis, hold that the marriage is valid: the condition does not prevent the purpose of the contract, namely enjoyment, and the corruption of the compensation does not affect the marriage. The condition itself is void, because it contradicts the purport of the contract, and because it involves waiving rights due by the contract before its conclusion, like the pre-emptor waiving his right of pre-emption before the sale; maintenance therefore remains due to the wife.
According to the Shafi'is, the dower of the like (mahr al-mithl) becomes due, because the one who imposes this condition only accepted the fixed dower on condition that his condition held. Imam al-Shafi'i said: if he gives her a thousand on condition of not maintaining her, or not sharing the nights among them, or being free to do with her as he wills, the condition is void; and if the dower of her like is less than the thousand, he may reclaim the excess to bring the dower back to the standard amount, because she stipulated for him what is not his: the excess portion of her dower is annulled and everything reverts to the dower of the like.
One objects: why not enforce what he stipulated for her, just as what she stipulated for him? Answer: both conditions are rejected, for they annul what Allah established for each of them, and then what the Prophet established. The Messenger of Allah said:
Why do men stipulate conditions that are not in the Book of Allah, the Most High? Any condition not in the Book of Allah is void, even if it be a hundred conditions; the decree of Allah is more binding and His condition more solid; allegiance belongs only to the one who grants freedom.
The Messenger of Allah thus annulled any condition contrary to the Book of Allah or the Sunnah of His Messenger. Among the void conditions are: the condition by which the wife forbids her husband to marry four wives or to have slave concubines, for she forbids him what Allah, the Most High, enlarged for him. The Messenger of Allah said: “It is not lawful for a woman to fast a voluntary day while her husband is present, without his permission.” He thus permitted him to prevent her from what draws her closer to Allah when it is not an obligation, because of the greatness of her right over him; and Allah established his precedence over her. No scholar disagrees that he has the right to move her from one land to another and to prevent her from going out: if she therefore stipulates that he not prevent her from going out nor move her, she has stipulated the annulment of his right over her. Allah said:
“or a single one, or those your right hands possess: that is the best means of not committing injustice”
Surah An-Nisa, 3
The Book of Allah thus indicates that the man must support his wife, and the Sunnah confirms it; if she stipulates that he not maintain her, what was established for her is annulled, while the command of kind treatment remains, correction being permitted in only one case. And if she stipulates that he may treat her as he wishes with nothing due on him in what he takes from her, he has stipulated taking from her what is not due to him. By this argument these conditions, and all that goes in their direction, are annulled, and she is granted the dower of the like.
One objects: it is sometimes narrated that the Prophet said: “The most binding of engagements that you must honor is the one by which you made the private parts lawful.” We say: under the Sunnah of the Messenger of Allah, only an engagement that is manifestly lawful and not contradicted by the Sunnah of the Messenger of Allah is honored. It is also sometimes narrated from him: “Muslims are bound by their conditions, except a condition that makes lawful what is unlawful or unlawful what is lawful,” and the explanation of his hadith indicates the general scope of it. (Al-Umm, 5/73-74)
Al-Mawardi said: if he marries her on condition of never maintaining her, and the condition comes from her side, it bears upon the dower and not upon the marriage, for it is a right she may waive; the dower therefore becomes void along with the void condition of waiving maintenance, while the marriage remains valid: she then has the dower of the like and the maintenance. If the condition comes from the husband, does it affect the validity of the marriage? Two views:
(Al-Hawi al-kabir, 9/508)
Imam Ibn Qudama said: the second category [of conditions] is that which voids the condition while the contract remains valid: stipulating that she has no dower, that he not maintain her, that he take back her dower if he gives it, or that she stipulates he not consummate the marriage, practice withdrawal ('azl), grant her fewer nights than her co-wife or more, spend only one night per week with her, or give her only the day without the night; or that she stipulate to maintain him or give him something. All these conditions are void in themselves, for they contradict the purport of the contract and involve waiving rights due before its conclusion, like the pre-emptor waiving before the sale. (Al-Mughni, 7/72)
Imam al-Mardawi said: “stipulating that she has neither dower nor maintenance, or that he grant her more or fewer nights than his other wife: the condition is void and the marriage valid; likewise if either of the two stipulates that there be no consummation. This position is explicit (nass) on both points; he authenticated it in at-Tasih and elsewhere, declared it in al-Wajiz, preferred it in al-Muharrar, the Ri'ayatayn, al-Hawi as-saghir and al-Furu', and Ibn Abdus adopted it in his Tadhkira.” It is said: the marriage is void as well. It is said: it is void if she stipulates that he not consummate the marriage.
Ibn Aqil said in his Mufradat: Abu Bakr transmitted two narrations concerning the stipulation of no consummation, no maintenance, or taking back what he spent if he separates from her, meaning with regard to the validity of the contract. Shaykh Taqi ad-Din (Ibn Taymiyya) said: the validity of the condition of no maintenance is possible, especially if one holds that when the husband is insolvent and she accepts it, she can no longer demand maintenance. He adopted the corruption of the contract if the stipulation concerns the absence of dower, and that this is the view of most of the early generations. He also adopted the validity of the stipulation of no consummation, like the condition of waiving what is due to her. He also said: if she stipulates that her child remain with her and the child's maintenance be upon the husband, that equals stipulating an increase in the dower, referred to custom, like the worker fed and clothed. (Al-Insaf, 8/165-166)
The Hanafis said: a man marries a woman for a thousand on condition of not maintaining her, while the dower of the like is a hundred: she is entitled to the thousand and to the maintenance. (Fatawa Qadikhan, 1/189; al-Fatawa al-hindiyya, 1/309)
The Malikis: if a man marries a woman on condition of not maintaining her and this is stipulated within the contract itself, the marriage is dissolved before consummation by consensus; after it, it stands with the dower of the like and is no longer dissolved according to the correct position of the school: it then proceeds on the Sunnah of marriage and the condition falls. It is said: it is dissolved absolutely, before and after consummation. If the condition occurs after the contract, during her waiting period of revocable divorce ('isma), there is no harm in it: she may waive this right and maintain him, and he may maintain her children from another man as well as her father; noble character traits do no harm. (Iqd al-jawahir ath-thamina, 2/474; al-Bayan wa't-tahsil, 4/378, 461; at-taj wa'l-iklil, 2/511; mawahib al-jalil, 5/82; sharh mukhtasar khalil, 3/195; ash-sharh al-kabir ma'a hashiyat ad-Dasuqi, 3/41; al-bahja fi sharh at-tuhfa, 1/435; hashiyat as-Sawi, 4/496)
The majority of jurists holds that if a man stipulates, within the contract itself, that the woman maintain him, the condition is void, for it contradicts the purport of the contract, while the contract remains valid.
Imam Ahmad ruled on the man who marries a woman on condition that she maintain him each month five or ten dirhams: the marriage is lawful, and she may retract from this condition. (Al-Mughni, 7/72; Kashshaf al-qina', 5/108; sharh muntaha al-iradat, 5/189)
According to the Malikis, if this condition is discovered before consummation, the marriage is dissolved; after consummation, the condition alone is dissolved and the dower of the like is due according to the correct position of the school. As-Sawi said: know that the contract is only corrupted by stipulating these things within the contract itself; if something of this kind occurs after the contract, during her waiting period of revocable divorce, there is no harm in it: she may waive her right to the sharing of nights, she may maintain him, and he may maintain her children from another man as well as her father; noble character traits do no harm. (Hashiyat as-Sawi 'ala ash-sharh as-saghir, 4/496)
The Shafi'is and Hanbalis: if the husband marries a woman on condition of not sharing the nights between her and his other wives, the condition is void, and the dower of the like is due according to the Shafi'is. (Al-Umm, 5/73; al-hawi al-kabir, 9/506; sharh sahih Muslim, 9/202; Rawdat at-talibin, 5/126; al-Insaf, 8/165-166; Kashshaf al-qina', 5/107-108; sharh muntaha al-iradat, 5/189-190; Manar as-sabil, 2/594-595)
Imam al-Shafi'i said: if he gives her a thousand on condition of not maintaining her, or not sharing the nights, or being free to do with her as he wills, the condition is void; and if the dower of her like is less than the thousand, he may reclaim the excess to bring it back to the dower of the like, because she stipulated for him what is not his: the excess portion of her dower is annulled and everything reverts to the dower of the like. (Al-Umm, 5/73)
Imam Ibn Qudama said: the second category is that which voids the condition while the contract remains valid: stipulating that she has no dower, that he not maintain her, that he take back her dower if he gives it, that she stipulate he not consummate the marriage, practice withdrawal, grant her fewer nights than her co-wife or more, spend only one night per week with her, or give her only the day without the night, or that she stipulate to maintain him or give him something. All these conditions are void in themselves, for they contradict the purport of the contract and involve waiving rights due before its conclusion, like the pre-emptor waiving before the sale. (Al-Mughni, 7/72)
Imam al-Mardawi said: “stipulating that she has neither dower nor maintenance, or that he grant her more or fewer nights than his other wife: the condition is void and the marriage valid; likewise if either of the two stipulates that there be no consummation. This position is explicit on both points; he authenticated it in at-Tasih and elsewhere, declared it in al-Wajiz, preferred it in al-Muharrar, the Ri'ayatayn, al-Hawi as-saghir and al-Furu', and Ibn Abdus adopted it in his Tadhkira.” It is said: the marriage is void as well. It is said: it is void if she stipulates that he not consummate the marriage. Ibn Aqil said in his Mufradat: Abu Bakr transmitted two narrations concerning the stipulation of no consummation, no maintenance, or taking back what he spent if he separates from her, meaning with regard to the validity of the contract. (Al-Insaf, 8/165-166; Kashshaf al-qina', 5/107-108; sharh muntaha al-iradat, 5/189-190; Manar as-sabil, 2/594-595)
The Malikis: if he marries her on condition of not sharing the nights between her and her co-wife in lodging, or of preferring the co-wife by reserving for her a whole week exclusively, or less, or more, the marriage is dissolved before consummation by consensus; after it, it stands with the dower of the like and is not dissolved according to the correct position: it proceeds on the Sunnah of marriage and the condition falls. It is said: it is dissolved absolutely, before and after consummation. This applies when the condition is stipulated in the marriage contract; if it occurs after the contract, during her waiting period of revocable divorce, there is no harm in it: she may waive her right to the sharing of nights. (Iqd al-jawahir ath-thamina, 2/474; Jami' al-ummahat, 278; al-Bayan wa't-tahsil, 4/378, 461; at-taj wa'l-iklil, 2/511; mawahib al-jalil, 5/82; sharh mukhtasar khalil, 3/195; ash-sharh al-kabir ma'a hashiyat ad-Dasuqi, 3/41; al-bahja fi sharh at-tuhfa, 1/435; hashiyat as-Sawi, 4/496)
As for the Hanafis, the marriage is never corrupted by corrupt conditions according to them.
The jurists differ on the case of a man who marries a woman on condition of not consummating the marriage: is the marriage valid or not?
The Hanafis: if she marries him on condition that he not consummate the marriage, the marriage is valid and the condition corrupt. (Hashiyat Ibn Abidin, 3/131)
The Malikis: the marriage is dissolved before consummation when a condition contradicting the purpose of marriage is stipulated, such as stipulating that he not come to her, or come to her only by day, or only by night, or part of that, or that he marry her on condition of not consummating the marriage; for by stipulating abstention he annuls the first wisdom of marriage, namely procreation, and he harms the wife: this is not the kind well-wishing retention that guarantees continuity and marital intimacy. (Al-Muwafaqat, 1/284; Iqd al-jawahir ath-thamina, 2/474; Jami' al-ummahat, 278; al-Bayan wa't-tahsil, 4/378, 461; at-taj wa'l-iklil, 2/511; mawahib al-jalil, 5/82; sharh mukhtasar khalil, 3/195; ash-sharh al-kabir ma'a hashiyat ad-Dasuqi, 3/40; tathbir al-mukhtasar, 2/580-581; hashiyat as-Sawi, 4/496)
The Shafi'is: if he marries her on condition of not consummating the marriage, or consummating it by night and not by day, or not joining her for a year: if the condition comes from her side, she marrying him on condition that he not consummate the marriage, the marriage is void, for she prevented him from what is due to him of the purpose of the contract. If the condition comes from his side, he marrying her on condition of not consummating the marriage, the marriage is valid, for he may abstain from consummation without a condition: the condition therefore involves no deprivation of what flows from the contract, and he is not bound to fulfill it, according to the saying of the Prophet:
Any condition not in the Book of Allah is void, even if it be a hundred conditions; the Book of Allah is more binding and the condition of Allah more solid.Narrated by al-Bukhari (2047) and Muslim (1504)
This not being in the Book of Allah, it is therefore void. It is said: the marriage is corrupt absolutely, whether she or he stipulated it; this is what is followed in the Minhaj. Al-Khatib ash-Shirbini said: “if (the condition) contravenes the primary purpose of marriage, such as stipulating that he (not consummate) her at all, or only once a year for example, or only by night, or only by day, (or) (that he divorce) her even after consummation, (the marriage is void): for it contradicts the purpose of the contract and annuls it.”
Clarification: what the author held void concerning the stipulation of no consummation is what he authenticated in al-Muharrar and deemed, in ash-sharh as-saghir, the most likely; what he authenticated in ar-Rawda, its original and the Tashih at-tanbih is validity when he is the one stipulating it, for it is his right: he may abstain and leave her in control. This is the position followed by the majority, as al-Adhra'i and others said; and he said in al-Bahr that it is the madhhab of al-Shafi'i. (Mughni al-muhtaj, 4/372; al-hawi al-kabir, 9/507; al-Bayan, 9/390; Rawdat at-talibin, 5/126; asna al-matalib, 3/156; an-najm al-wahaj, 7/319-320; ad-dibaj, 3/320)
The Hanbalis: if she stipulates that he not consummate the marriage, practice withdrawal, spend with her only one night per week, or if he stipulates it himself, or gives her only the day without the night: all these conditions are void in themselves, for they contradict the purport of the contract and involve waiving rights due before its conclusion; the marriage remains valid with these conditions. It is said: it is void if she stipulates abstention. Al-Mardawi said: the Shaykh al-Islam (Ibn Taymiyya) adopted the validity of the stipulation of no consummation, like the condition of waiving what is due. (Al-Insaf, 8/165-166; al-Mughni, 7/72; Kashshaf al-qina', 5/107-108; sharh muntaha al-iradat, 5/189-190; Manar as-sabil, 2/594-595)
Imam Ibn Qudama said: the second category is that which voids the condition while the contract remains valid: stipulating that she has no dower, that he not maintain her, that he take back her dower if he gives it, that she stipulate he not consummate the marriage, practice withdrawal, grant her fewer nights than her co-wife or more, spend only one night per week with her, or give her only the day without the night, or that she stipulate to maintain him or give him something. All these conditions are void in themselves, for they contradict the purport of the contract and involve waiving rights due before its conclusion, like the pre-emptor waiving before the sale; as for the contract itself, it is valid, for these conditions refer to an accessory meaning of the contract whose mention is not required and whose ignorance does no harm, like stipulating a forbidden dower; the marriage is moreover valid even with ignorance of the compensation, and it may therefore be concluded with a corrupt condition, like manumission.
Ahmad stated explicitly on a man who married a woman on condition of spending one night per week with her, then she retracted saying: “I am content only with one night after another”: he said she may settle in full contentment, for that is permitted; and if she says: “I am content only with equal sharing (muqasama),” that constitutes a right she may claim as she wishes. Al-Athram transmitted from him, concerning the man who marries a woman stipulating to come to her on certain days: the condition is lawful and, if she wishes, she retracts. On the man who marries her on condition that she maintain him five or ten dirhams per month: the marriage is lawful and she may retract.
Some statements of Ahmad, transmitted by al-Marrudhi in an-nahariyyat wa'l-layliyyat, could imply the nullity of the contract: “This does not belong to the marriage of the people of Islam.” Those who disapproved daytime marriages include Hammad ibn Abi Sulayman and Ibn Shubrama. Ath-Thawri said: the condition is void. The people of personal opinion (ashab ar-ra'y) said: if she asks him to be fair in the division, he is; al-Hasan and Ata' saw no harm in daytime marriages. Al-Hasan saw no harm in marrying her on condition of reserving for her known days in the month. The disapproval of those who disapproved it perhaps aims at annulling the condition, and the permission of those who allowed it aims at the marriage itself: their statements therefore agree on the validity of the marriage and the nullity of the condition, and Allah knows best.
The qadi said: Ahmad only disliked this marriage because it takes place in secret, and secret marriage is disliked; if abstention from consummation is stipulated to him, the contract may be corrupt, as a condition contradicting the purpose of marriage: this is the madhhab of al-Shafi'i. Likewise if it is stipulated that she not be handed over to him: it is like buying a good without taking delivery. If he stipulates not consummating the marriage, it is not corrupt, for consummation is his right over her and she does not own it over him; but it may be, for she holds a right in it: she may demand it of him if he persists, and demand dissolution (faskh) if it becomes impossible, in case of impotence ('inna) or feebleness ('unna). (Al-Mughni, 7/72-73)
The majority of jurists holds that a woman should not stipulate, in her marriage contract, that the man divorce his other wife: this is the case of the one who marries him stipulating the divorce of the co-wife, according to what Abu Hurayra narrated from the Prophet:
Let the woman not ask for the divorce of her sister to empty her plate; let her marry, for she shall have what has been apportioned to her.Narrated by al-Bukhari (6227) and Muslim (1408)
In one wording: “The Messenger of Allah forbade that a woman ask for the divorce of her sister to take what is in her plate, for Allah provides for her sustenance.” Narrated by Muslim (1408). In one wording: “It is not lawful for a woman to ask for the divorce of her sister to empty her plate; she shall have only what has been apportioned to her.” Narrated by al-Bukhari (4857). In one wording: “The Messenger of Allah forbade that a woman stipulate the divorce of her sister.” Narrated by al-Bukhari (2577). Ad-Dahlawi said: the secret is that demanding her divorce amounts to stripping her (iqtidab) and striving to ruin her livelihood; and one of the greatest causes of a city's corruption is that an individual seeks to snatch another's livelihood. What is pleasing to Allah is that each seek his livelihood through what Allah has eased for him, without striving to remove that of another. (Hujjat Allah al-baligha, 1/685)
Most jurists nevertheless hold that the marriage does not become void by this condition, for by forbidding the woman to stipulate the divorce of her sister, the Prophet implies that the divorce, should it occur through this, is effective and lawful; were it not, this prohibition would have no meaning, and her stipulation would be as if it were not stipulated. (Sharh sahih al-Bukhari by Ibn Battal, 7/273)
Imam Ibn Battal said: his saying “let the woman not stipulate the divorce of her sister” is a proof for the one who permits disliked conditions; if these conditions remained without effect once laid down, forbidding their stipulation would have no meaning; the same applies to similar conditions: though disliked, they are binding, according to his saying: “The most binding of engagements that you must honor is the one by which you made the private parts lawful.” (Sharh sahih al-Bukhari by Ibn Battal, 8/116)
The jurists differ when the marriage took place with this condition: is the condition valid? The Hanafis and the Hanbalis within the school hold it valid; the Hanafis specify, however, that it is a non-binding condition: if he fulfills it, good; otherwise she has the dower of the like. The Hanafis said: if he marries a woman for a thousand on condition of divorcing her co-wife and he fulfills it, she has the thousand; otherwise the dower of the like. Likewise if he marries her for less than the dower of the like on condition of divorcing the co-wife: if he refuses to divorce, he is not compelled, for he stipulated a divorce and imposing divorce cannot be demanded of him as a debt; nothing is therefore required of him under the condition, but she has the full dower of the like, for she has a benefit in the divorce of her co-wife: she accepted less than the dower of the like on condition that this benefit be granted to her; if it is not, she has the full dower of the like. (Al-Mabsut, 5/88; sharh fath al-qadir, 3/351; al-Bahr ar-ra'iq, 3/171-173; al-ashbah wa'n-nazair, 410; Majma' ad-damanat, 2/735; hashiyat Ibn Abidin, 3/124-125)
The Hanbalis within the school: if she stipulates that he divorce her co-wife, the condition is valid, for it does not contradict the contract and she finds a benefit in it, like a stipulation not to marry over her; but fulfillment is not obligatory, it is rather recommended. If the husband does not honor her condition, she has the right to have the marriage dissolved, for it is a binding condition in a contract: the right of dissolution is established by the breach, like the pledge and the guarantor in sale; this right of option is open-ended, for it is established to repel harm, like the option for defect and the option of retribution; it lapses only through what indicates her consent, by speech or by leaving him in control in knowledge of his deed, of what she stipulated he not do; if she is unaware of the breach and leaves him in control, her option does not lapse, for its cause is not established and it therefore has no effect, like the one who waives his right of pre-emption before the sale. (Al-Furu', 5/162-163; al-Mubdi', 7/81-82; al-Insaf, 8/157; Kashshaf al-qina', 5/99-100; Manar as-sabil, 2/585-586)
A narration of Imam Ahmad, adopted by Ibn Qudama and others, holds that the condition is not valid, according to what Abu Hurayra narrated: “The Messenger of Allah forbade that a woman stipulate the divorce of her sister” (al-Bukhari, 2577): prohibition implies the corruption of what is forbidden; and because she stipulated from him the dissolution of his contract and the annulment of his right and the right of his wife: the condition is therefore not valid, as if she stipulated the annulment of his sale. (Al-Mughni, 7/72; ash-sharh al-kabir, 7/528)
The Shafi'is: if he marries her on condition of divorcing her co-wife, the marriage is valid and the condition corrupt; the dower of the like is due, whether he gave more, less or the same as the fixed dower. (Rawdat at-talibin, 5/126)
Imam Ibn Abd al-Barr said: Malik transmitted, from Abu az-Zinad, from al-A'raj, from Abu Hurayra, that the Messenger of Allah said: “Let the woman not ask for the divorce of her sister to empty her plate; let her marry, for she shall have what has been apportioned to her.” (Al-Bukhari, 6227; Muslim, 1408). This report teaches that the woman should not ask her husband to divorce her co-wife to have him to herself: she shall have only what destiny has fixed for her, and the divorce of her co-wife neither diminishes nor increases what destiny has reserved for her. Al-Akhfash said: it is as if he meant that she empties the plate of the husband's goodness and takes him for herself alone. Abu Umar said: this hadith is among the finest hadiths on destiny (qadar) among the people of knowledge and the Sunnah: man obtains only what has been apportioned to him; Allah said:
“Say: nothing will befall us except what Allah has written for us”
Surah At-Tawba, 51
The legal lesson of this hadith: it is not lawful for a woman, nor her guardian, to stipulate in her marriage contract the divorce of another; and it is on this hadith and its like that a group of scholars relied to say that the woman's condition upon the man at her marriage contract, whereby she only marries him on condition that any woman he might marry over her be divorced, is a void condition, and that the contract concluded on this basis is corrupt, dissolved before consummation: it is a corrupt condition that mingled with the dower by which the private parts are made lawful, and it thus became corrupt for contravening the prohibition.
Among the people of knowledge, some hold the condition void in all cases and the marriage established and valid: this is the adopted position, followed by most scholars of the Hijaz; they nevertheless dislike this condition and disapprove of concluding the marriage upon it. Their proof is the hadith of this chapter and its like, as well as Aisha's hadith in the story of Barira, which implies, in such a case, the validity of contracts and the nullity of conditions: this is the soundest thing to rely upon here. As for the one who would have this disliked condition valid according to our companions, he concludes it by an oath; he must then violate that oath by divorce or by that upon which he swore, and seizing marriage through a disliked oath contradicting the Sunnah belongs neither to the deeds of the righteous nor to the marriages of the best of the early generations. (At-Tamhid, 18/165, 167)
The topic: the jurists differ if one marries a woman on condition of no mutual inheritance between them. The Malikis: if a man marries a woman on condition of no inheritance between them and this is stipulated within the contract itself, the marriage is dissolved before consummation by consensus; after it, it stands with the dower of the like and is not dissolved according to the correct position. It is said: it is dissolved absolutely, before and after consummation. (Iqd al-jawahir ath-thamina, 2/474; al-Bayan wa't-tahsil, 4/378, 461; at-taj wa'l-iklil, 2/511; mawahib al-jalil, 5/82; sharh mukhtasar khalil, 3/195; ash-sharh al-kabir ma'a hashiyat ad-Dasuqi, 3/41; al-bahja fi sharh at-tuhfa, 1/435; hashiyat as-Sawi, 4/496)
The Shafi'is within the school: if he marries her on condition of not inheriting from her, or she from him, or of no mutual inheritance, the marriage is void. According to another opinion, it is valid and the condition void. If he marries a woman of the Book on condition of not inheriting from her: if he intends this as long as the impediment stands, the marriage is valid, for it is an explicit declaration of the purport of the contract; if he intends it absolutely, it is void for contravening the purport of the contract; if he leaves it unspecified, the predominant view is validity, for by principle the impediment stands. (Rawdat at-talibin, 5/126; Tuhfat al-muhtaj, 9/89)
The principle is that khul' is established by the Book, the Sunnah, consensus and reason. Through the Book, the saying of the Most High:
“If you fear that the two (spouses) will not keep the limits of Allah, then there is no sin upon either of them in what she gives up to free herself”
Surah Al-Baqara, 229
and His saying:
“If they willingly give up any part of it to you, then you may take it with ease”
Surah An-Nisa, 4
Through the Sunnah: Abdallah ibn Abbas narrated that the wife of Thabit ibn Qays came to the Prophet and said: “O Messenger of Allah, Thabit ibn Qays: I find no fault in him in character or religion, but I fear ingratitude in Islam.” The Messenger of Allah said: “Will you return his garden to him?” She said yes. He said: “Accept the garden and divorce her with one divorce.” Narrated by al-Bukhari (4971): this is the first khul' that occurred in Islam.
Through consensus: a great number of scholars transmitted consensus on the legitimacy of khul' and on the fact that this ruling remains in force, not abrogated. Imam an-Nawawi said: “khul' is subject to consensus regarding its lawfulness” (Rawdat at-talibin, 5/237). Imam Ibn al-Qayyim said: “the lawfulness of khul', as the Quran indicates... As for those who forbade it, they are a deviant group who contradicted the explicit text and the consensus” (Zad al-ma'ad, 5/193). Al-Hafiz Ibn Hajar said: “the scholars agreed upon its legitimacy, except Bakr ibn Abdallah al-Muzani, the famous Successor, who said: it is not lawful for a man to take anything from his wife in return for separation from her, according to the saying of the Most High: take nothing back from her. He was opposed with the saying: there is no sin upon them in what she gives up to free herself (Al-Baqara, 229), and he claimed that the latter was abrogated by the verse of An-Nisa. This statement was attributed to him by Ibn Abi Shayba and others; he was rebutted, beyond his isolation, by the saying of the Most High in An-Nisa itself: if they willingly give up any part of it to you (An-Nisa, 4), by: there is no sin upon them in reconciling (An-Nisa, 128), and by the hadith; as if the latter had not been established with him or had not reached him; consensus formed after him on its validity: the verse of An-Nisa is specific to the verse of Al-Baqara and the two other verses of An-Nisa.” (Fath al-Bari, 9/395-396)
Imam ash-Shawkani said: “the scholars agreed upon its legitimacy...” (Nayl al-awtar, 7/36). Ibn Abd al-Barr said: “the majority agreed that khul', ransom and amicable settlement are lawful between spouses to sever the marriage bond, and that what she gives for it is lawful if it equals the dower or less, without harm or injury to her, except Bakr ibn Abdallah al-Muzani who deviated, saying that it is not lawful for him to take anything from her in any circumstance, claiming that the saying of Allah: there is no sin upon them in what she gives up to free herself (Al-Baqara, 229) is abrogated by: If you desire to exchange a wife in place of another, and you have given one of them a quintal, take nothing from it (An-Nisa, 20) up to: a solemn covenant (An-Nisa, 21).”
This contradicts the established Sunnah in the affair of Thabit ibn Qays ibn Shammas: the Prophet permitted him to take from his wife what she gave him and to set her path free. No scholar should declare any part of the Quran abrogated unless there is mutual prevention between the two texts, preventing their application and specification; and when it is unknown that the saying of the Most High: there is no sin upon them in what she gives up to free herself (Al-Baqara, 229) concerns the case of mutual satisfaction, and the saying: take nothing back from her (An-Nisa, 20) is taken to concern the case without her consent, with her displeasure and harm to her, the joint application of the two verses becomes sound. The Sunnah moreover clarified this through the story of Thabit ibn Qays and his wife; most scholars hold this position, except the one who deviated, and he is opposed by them, for it is not permitted to them to conspire to distort the Book and ignore its interpretation; and there is only an isolated outsider against them. (Al-Istidhkar, 6/76-77; al-Iqna' fi masa'il al-ijma', 3/1277-1278, no. 2325)
Imam Ibn Qudama said: “on this all the jurists of the Hijaz and Syria have pronounced.” Ibn Abd al-Barr said: “we know of no one who contradicted it except Bakr ibn Abdallah al-Muzani: he did not permit it and claimed that the verse of khul' is abrogated by the saying of Allah: If you desire to exchange a wife in place of another (An-Nisa, 20). It was narrated from Ibn Sirin and Abu Qilaba that khul' is not lawful as long as the man has not found a man upon her belly, according to the saying of Allah: Do not press them in order to take back part of what you gave them, unless they commit a manifest indecency (An-Nisa, 19). Our argument: it is the verse we recite, and the report; and it is the view of Umar, Uthman, Ali and other Companions: we know of no opponent in their era, which constitutes consensus. Claims of abrogation are not heeded as long as the impossibility of reconciling is not established and the abrogating verse is not later: none of that is established.” (Al-Mughni, 7/246)
Imam Badr ad-Din al-Ayni said: “the scholars agreed upon the legitimacy of khul'...” (Umdat al-qari, 20/260). As for reason: since the husband may own enjoyment for compensation, he may remove that ownership for compensation, like buying and selling: marriage is like buying and khul' like selling; khul' moreover repels, in most cases, the harm of the woman. (Al-Hawi al-kabir, 10/5; asna al-matalib, 3/241; Mughni al-muhtaj, 4/429)
Khul' comprises three categories. The first is lawful without disagreement among the jurists: it is when the woman takes in aversion the character of the husband, his appearance, his religion, his old age, his weakness or the like, and fears not fulfilling his right, and grants him compensation so that he divorces her: this is permitted and it is lawful for him to take it without disagreement, according to the saying of the Most High:
“If you fear that the two (spouses) will not keep the limits of Allah, then there is no sin upon either of them in what she gives up to free herself”
Surah Al-Baqara, 229
Habiba bint Sahl al-Ansariyya was the wife of Thabit ibn Qays ibn Shammas. The Messenger of Allah went out at dawn and found Habiba bint Sahl at his door, in distress. The Messenger of Allah asked: “Who is this?” She said: I am Habiba bint Sahl. He said: “What is your matter?” She said: “Neither I nor Thabit ibn Qays,” her husband, meaning: neither do I agree with him, nor he with me. When Thabit ibn Qays arrived, the Messenger of Allah said to him: “This is Habiba bint Sahl,” and mentioned what Allah willed that she mention. Habiba said: “O Messenger of Allah, all that he gave me is in my possession.” The Messenger of Allah said to Thabit ibn Qays: “Take it from her.” He took it from her, and she settled in the house of her family.
The account of Habiba bint Sahl with Thabit ibn Qays: he said “Take it from her,” he took it from her and she settled with her family; and the version of Ibn Abbas: the wife of Thabit ibn Qays came to the Prophet and said: “O Messenger of Allah, Thabit ibn Qays: I find no fault in him in character or religion, but I fear ingratitude in Islam,” and he said: “Will you return his garden to him?” She said yes. He said: “Accept the garden and divorce her with one divorce.”Sound hadith: narrated by Malik in al-Muwatta (1174), Ahmad in al-Musnad (27484), Abu Dawud (2227), an-Nasa'i (3462) and Ibn Hibban in his Sahih (4280); the second version by al-Bukhari (4971)
Her need for separation being satisfiable only through the payment of compensation, it was permitted to her, like the purchase of a good: she may indeed take her husband in aversion while he fulfills her rights, without being able to compel him to separate her from him, for that is incumbent upon him only with his consent; it is therefore permitted to her to grant him compensation for it. (Ahkam al-Qur'an of al-Jassas, 2/89-91; al-Ikhtiyar, 3/192-193; mukhtasar al-Wiqaya, 1/412; al-Jawhara an-nayyira, 4/514; al-Lubab, 2/115-116; al-Ishraf, 3/375, no. 1206; al-Ma'una, 1/589-590; al-Ifsah, 2/163; al-Mughni, 7/246; al-Kafi, 3/142; al-Mubdi', 7/220; Kashshaf al-qina', 5/241-242; sharh muntaha al-iradat, 5/335-336)
Imam al-Amrani said: if the woman takes in aversion the character of the husband, his appearance or his religion, and fears not fulfilling his right, and grants him compensation so that he divorces her, this is permitted and it is lawful for him to take it without disagreement, according to the saying of the Most High: if you fear that the two will not keep the limits of Allah. (Al-Bayan, 10/7). Imam Ibn Qudama said: the woman, if she takes her husband in aversion for his character, his appearance, his religion, his old age, his weakness or the like, and fears not fulfilling the right of Allah in obeying him, may ransom herself from him with compensation through which she ransoms her bond... and on this all the jurists of the Hijaz and Syria have pronounced. (Al-Mughni, 7/246)
The Shaykh al-Islam Ibn Taymiyya said: when she detests him and chooses separation, she ransoms herself from him, returns to him what she took of the dower, absolves him of what weighs upon him, and he pronounces the khul', as in the Book and the Sunnah, and as the imams agreed. (Majmu' al-fatawa, 32/282). Imam Ibn Muflih said: it is lawful for bad marital life, and it is recommended to answer her request; the words of our shaykh differed on its being obligatory, and some of the noble judges of Syria enforced it. Abu Talib said: if she takes him in aversion, it is lawful for him to take from her what he gave her, for the Prophet said: “Will you return his garden to him?” (Al-Furu', 5/265). Imam al-Mardawi said: if the woman takes the man in aversion and fears not maintaining the limits of Allah towards him, there is no harm in her ransoming herself from him: this is lawful for the wife according to the correct position of the school, followed by most of the companions; al-Halwani declared it recommended. As for the husband, the correct position of the school is that answering her request is recommended, and upon this are the companions. The words of shaykh Taqi ad-Din differed on the obligation to answer, and some of the noble judges of Syria enforced it. (Al-Insaf, 8/382)
Imam as-Suyuti said: the imams agreed that, if the woman takes her husband in aversion for his repulsive appearance or bad marital life, it is permitted to her to make khul' for compensation. (Jawahir al-uqud, 2/91). The Hanbalis: in this case, it is Sunnah to answer the wife if she asks for khul' for compensation, wherever khul' is permitted, according to the Prophet's command to Thabit ibn Qays: “Accept the garden and divorce her with one divorce”; except if the husband loves her and is attached to her: her patience and not ransoming herself from him are then recommended, to repel his harm. (Al-Mubdi', 7/220; Kashshaf al-qina', 5/241-242; sharh muntaha al-iradat, 5/335-336; Manar as-sabil, 3/70)
The second category: the situation is good between the two spouses and their morals remain intact, neither taking the other in aversion. The majority of the jurists of the four schools, Hanafis, Malikis, Shafi'is and Hanbalis within the school, permit khul' in this case, and it is lawful for the husband to take what the woman grants him, according to the saying of the Most High:
“If they willingly give up any part of it to you, then you may take it with ease and pleasure”
Surah An-Nisa, 4
without restricting anything; and because lifting the marriage bond is permitted in case of fear of harm, it is therefore permitted without harm, like the iqala (mutual rescission) in sale; and because any situation in which he may divorce without compensation, he may divorce with compensation, like the case of dislike; and because any divorce occurring in anger also occurs in consent, whose principle is initiated divorce without compensation; and because it is an exchange valid in case of dispute, therefore valid otherwise, like sale. (Ahkam al-Qur'an of al-Jassas, 2/89-91; al-Ikhtiyar, 3/192-193; mukhtasar al-Wiqaya, 1/412; al-Jawhara an-nayyira, 4/514; al-Lubab, 2/115-116; al-Ishraf, 3/375, no. 1206; al-Ma'una, 1/589-590; al-Ifsah, 2/163; al-Mughni, 7/246; al-Kafi, 3/142; al-Mubdi', 7/220; al-Insaf, 8/382-383; Kashshaf al-qina', 5/241-242; sharh muntaha al-iradat, 5/335-336)
Imam Ibn Hubayra said: “they agreed upon the validity of khul' when the situation remains good between the two spouses” (Al-Ifsah, 2/163). The qadi al-Qurtubi said: those who restricted khul' to the case of discord and harm relied on the verse, holding it a condition of khul'; they supported it with the account of Abu Dawud from Aisha: “Habiba bint Sahl was with Thabit ibn Qays ibn Shammas; he struck her and broke part of her body; she came to the Messenger of Allah after dawn and complained to him; the Prophet summoned Thabit and said: take part of her wealth and separate from her. He said: is that permissible, O Messenger of Allah? He answered: yes. He said: I gave her two gardens, both in her hand. The Prophet said: take them and separate from her. He did so.” Sound hadith: narrated by Abu Dawud (2228). (Tafsir al-Qurtubi, 3/140)
What is followed by the majority of jurists is that khul' is permitted without complaint of harm, as the hadith of al-Bukhari and others indicates; as for the verse, it is not a proof in this, for Allah did not mention it as a condition, but because it is the most frequent case of khul', the ruling then following the most frequent case. What decides and establishes knowledge is the saying of the Most High: if they willingly give up any part of it to you, then you may take it with ease and pleasure (An-Nisa, 4). (Al-Mughni, 7/246; al-Kafi, 3/142; al-Mubdi', 7/220; al-Insaf, 8/382-383; Kashshaf al-qina', 5/241-242; sharh muntaha al-iradat, 5/335-336)
Imam al-Amrani said: the second category of lawful cases: the situation is good between the spouses, neither taking the other in aversion, and they agree upon khul': khul' is valid and it is lawful for the husband to take what she grants him; Malik, Abu Hanifa and most of the people of knowledge said so. An-Nakha'i, az-Zuhri, Ata' and Dawud, as well as the Zahirites, said: khul' is not valid and what she grants is not lawful for him; Ibn al-Mundhir adopted it. (Al-Bayan, 10/8-9). The Hanbalis within the school permit khul' in this case while disliking it, according to the hadith:
Any woman who asks her husband for divorce without harm, the fragrance of Paradise is forbidden to her.Sound hadith: narrated by Abu Dawud (2226), Tirmidhi (1187) and Ibn Majah (2055)
and because it is idle conduct without necessity. (Al-Mughni, 7/246; al-Kafi, 3/142; al-Mubdi', 7/220; al-Insaf, 8/382-383; Kashshaf al-qina', 5/241-242; sharh muntaha al-iradat, 5/335-336; Manar as-sabil, 3/70)
A narration of Imam Ahmad, adopted by some of his companions such as Ibn Qudama and others, as well as by Ibn al-Mundhir among the Shafi'is and by the Zahirites, holds that khul' is valid only in case of discord and fear of not maintaining the limits of Allah; in case of harmony, it is not valid, for Allah, the Most High, said the verse of Al-Baqara (229), whose implied meaning is that sin befalls them if she ransoms herself without fear; then He intensified with the threat: “these are the limits of Allah, do not transgress them; those who transgress the limits of Allah, it is they who are the wrongdoers” (Al-Baqara, 229). Thawban narrated that the Messenger of Allah said: “Any woman who asks her husband for divorce without harm, the fragrance of Paradise is forbidden to her.” Sound hadith: narrated by Abu Dawud (2226), Tirmidhi (1187) and Ibn Majah (2055). And Abu Hurayra narrated from the Prophet: “The women who tear themselves from their marriage and those who make khul' are hypocrites.” Sound hadith: narrated by Ahmad (9347) and an-Nasa'i (3491). This indicates the prohibition of khul' without necessity, for it harms the woman and her husband and removes the benefits of marriage without need; it is therefore forbidden, according to his saying: “No harm and no reciprocal harm.” (Al-Awsat, 5/187-190; sharh sahih al-Bukhari by Ibn Battal, 7/420; al-Mughni, 7/248; sharh az-Zarkashi, 2/451; al-Kafi, 3/142; al-Mubdi', 7/220; al-Insaf, 8/382-383)
The third category is forbidden by consensus: it is when the man strikes her, threatens her with death, torments her or withholds her maintenance and clothing, so that she makes khul'; the scholars agreed upon its prohibition and upon the fact that this is forbidden, according to the saying of the Most High:
“Do not press them in order to take back part of what you gave them, unless they commit a manifest indecency”
Surah An-Nisa, 19
the term 'adl meaning withholding. The scholars differed if she makes khul' in this case: is the khul' void, counted as a divorce, with what he took returned to her? Or is the khul' valid and the compensation binding? The majority of jurists, Malikis, Shafi'is and Hanbalis, holds that if she makes khul' in this case, the khul' is not valid and the husband does not own what she granted him, according to the saying of Allah: it is not lawful for you to take back anything of what you gave them, unless both fear not being able to keep the limits of Allah (Al-Baqara, 229), and His saying: it is not lawful for you to inherit women against their will, nor to prevent them from remarrying in order to take back part of what you gave them (An-Nisa, 19); and because it is an exchange contract into which she was coerced without right: he therefore does not deserve the compensation, like sale.
The Malikis: if she makes khul' out of fear of his harm or his injustice towards her, the divorce is effective and what he took is returned to him; the divorce is effective for he is the one who most constrained himself, with no way to withdraw it; the repayment is due for it was incumbent upon him to remove the harm without compensation, and what man must remove without compensation, he may not take compensation for it. (Al-Ma'una, 1/590; al-Jami' li-masa'il al-Mudawwana, 9/469; sharh sahih al-Bukhari by Ibn Battal, 7/421; al-Istidhkar, 6/78)
Imam Malik said concerning the woman who ransoms herself from her husband: if it is established that her husband harmed her and tormented her, and that he is established as unjust towards her, so that she ransomed herself from him, the divorce takes effect and her wealth is returned to her; he said: “this is what I have heard and what the affair of the people is upon among us.” (Al-Muwatta, 2/565; sharh az-Zarqani, 3/239)
The Shafi'is: if she makes khul' in this case, the divorce occurs and the husband does not own what she granted him; if it is after consummation, the divorce is revocable and he may return to her, for revocability lapses only through compensation, and the compensation lapsed: revocability therefore stands. (Al-Muhadhdhab, 2/71; al-Bayan, 10/9). Imam an-Nawawi said in the Rawda: if he coerces her by striking her or otherwise, and she makes khul', saying of her own accord: “make khul' upon me for such a thing,” and he does it, the khul' is not valid: the divorce is revocable if he did not name wealth; if he named it, the divorce does not occur, for she did not accept willingly. According to at-Tamma, a view holds that the divorce does not occur even without naming wealth. If he initiates saying: “you are divorced for such a thing,” and coerces her to accept by striking her, nothing occurs. If she claims that he coerced her into paying wealth in return for the divorce and she establishes her proof, the wealth is returned to her and the divorce occurs, with right of revocation: this is explicitly stated. The companions said: the place of revocation is when he does not acknowledge the khul', but denies the wealth or remains silent; if he acknowledges the khul' and denies coercion, the divorce is irrevocable by his word and there is no revocation. (Rawdat at-talibin, 5/237-238; Kifayat an-nabih, 13/361)
The Hanbalis: he does not own the compensation in this case; the khul' is void and the compensation returned, and the marital bond remains as it is if one holds it a dissolution without intention of divorce: nothing occurs; this is the correct position of the school, for khul' without compensation does not occur according to one of the two narrations. According to the other narration, he only consented to dissolution here with compensation: if the compensation does not reach him, the compensated-for thing does not reach him either. According to the view that khul' is a divorce, the divorce occurs without compensation; if less than three repudiations remain to him, he has revocation, for revocation lapses only through compensation: if the compensation lapses, revocation stands. And if he divorces her by answering her request with the formula of divorce or of khul' with intention of divorce, it occurs as a revocable divorce, and she does not separate from him by it, because of the corruption of the compensation. (Al-Mughni, 7/248-249; al-Insaf, 8/384; Kashshaf al-qina', 5/242; sharh muntaha al-iradat, 5/336)
The Hanafis: if the nushuz (disobedience and estrangement) comes from the husband, khul' is valid and occurs as an irrevocable divorce, but it is disliked for him to take from her little or much, according to the saying of the Most High: If you desire to exchange a wife in place of another, and you have given one of them a quintal, take nothing from it (An-Nisa, 20), which forbids taking back anything of the given dower, and His saying: Would you take it by way of slander and evident sin? (An-Nisa, 20). And His saying: Do not press them in order to take back part of what you gave them, unless they commit a manifest indecency (An-Nisa, 19), means: do not torment them so as to take back part of what you gave them, unless they disobey; He forbade the husbands to take back anything of what they gave them and excepted their disobedience; the ruling of the excepted thing contradicts that of the thing excepted from, which implies the prohibition of taking back anything in the absence of disobedience: this belongs to the religious ruling. If he takes, it is lawful as legal and binding ruling, without his being able to reclaim it, for the husband waived his ownership over her for a compensation she accepted: the husband is of those who may waive, the woman of those who exchange with consent; it is therefore lawful as ruling and in judgment. (Al-Muwatta of Malik by Muhammad ibn al-Hasan, 2/487; mukhtasar ikhtilaf al-ulama, 2/464; ahkam al-Qur'an of al-Jassas, 2/91-92; Bada'i' as-sana'i, 3/150; al-Hidaya, 2/14; al-Jawhara an-nayyira, 4/517; al-Lubab, 2/116; al-Ikhtiyar, 3/193)
Part of the hadith of Habiba specifies: “she was the wife of Thabit ibn Qays; he struck her and broke her rib; she came to the Prophet, who summoned Thabit and said: take part of her wealth and separate from her; he did so.” Likewise: if the man strikes his wife unjustly because of his bad character or otherwise, without wanting her to ransom herself from him, khul' is not forbidden to her, for he did not press her to take back part of what he gave her; but he bears the sin of injustice. (Al-Mughni, 7/249; sharh az-Zarkashi, 2/452; al-Mubdi', 7/221)