Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > If She Commits Zina and the Husband Deprives His Wife of Her Right to Make Her Ransom Herself
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Updated on 25 September 2026 at 3:23 PM
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The jurists differed: if the woman commits zina, her husband withholds her right so that she makes khul', and she does so, is the khul' valid? The Shafi'is within the school and the Hanbalis: if the woman commits an indecency and commits zina, her husband withholding her right so that she ransoms herself from him with wealth, the khul' is valid, 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 (An-Nisa, 19), namely zina: Allah forbade him coercion for the ransom except in case of zina; the outward meaning therefore permits coercion in the presence of zina, for the exception from a prohibition is a permission; and because when she commits zina, he is not safe from her attaching to him a child from another and corrupting his bed: she therefore does not keep the limits of Allah towards him, thus entering into His saying: If you fear that the two will not keep the limits of Allah, then there is no sin upon either of them in what she gives up to free herself (Al-Baqara, 229). (Al-Hawi al-kabir, 10/6-7; al-Muhadhdhab, 2/71; al-Bayan, 10/9-10; Rawdat at-talibin, 5/238; al-Mughni, 7/249; al-Kafi, 3/143; sharh az-Zarkashi, 2/452; al-Mubdi', 7/221; al-Insaf, 8/384; Kashshaf al-qina', 5/242)
According to another Shafi'i opinion, this coercion is forbidden, for it is a khul' into which she was coerced by the withholding of her right, as if he coerced her thus without zina; and because he may reach separation through divorce; and if it were lawful to abolish her right so that she makes khul', it would be lawful to abolish her right to maintenance so that she makes khul'; according to this view, if it is after consummation, he may return to her.
As for the verse, two answers: the first, it is abrogated when the confinement of the adulteress was abrogated by: confine them in your houses until death takes them, or until Allah opens for them a way (An-Nisa, 15), then by flogging and stoning. The second, the manifest indecency designates here disobedience (nushuz), according to Ibn Abbas and Aisha (may Allah be pleased with them both): in case of disobedience, he may coerce her and make khul'. (Al-Hawi al-kabir, 10/6-7; al-Muhadhdhab, 2/71; al-Bayan, 10/9-10; Rawdat at-talibin, 5/238)
The Malikis: Abu al-Walid Ibn Rushd the grandfather said: “Malik was asked about a man who caught his wife in flagrant zina: may he torment her so that she ransoms herself from him? He said: that does not befit him; he torments her if she seeks thereby to make her wealth lawful; he torments her until she ransoms herself from him, and I do not see that as befitting him.” (Al-Bayan wa't-tahsil, 5/233-234; al-muqaddimat al-mumahhidat, 1/503)
Muhammad ibn Rushd said: it is not lawful for the man, if the woman takes him in aversion, to keep her and torment her so that she ransoms herself from him, even if she commits an indecency of zina, disobedience or obscene speech, according to the saying of Allah: If you desire to exchange a wife in place of another (An-Nisa, 20) up to: a solemn covenant (An-Nisa, 21): such is the madhhab of Malik and all his companions, without disagreement among them.
Some scholars permit the man, if he catches his wife in flagrant zina, to keep her and torment her until she ransoms herself from him, interpreting the manifest indecency as zina and connecting the exception to the prohibition. Others interpret it as hatred, disobedience and obscene speech, permitting the husband, if his wife takes him in aversion, turns away from him and covers him with insults, to keep her and torment her until she ransoms herself. Yet others understand it generally, permitting the husband this whether the indecency is zina, disobedience, obscene speech or otherwise.
The correct view is that of Malik, for if he torments her until she ransoms herself from him, he takes her wealth without her consent, and Allah permitted it only with her consent: If they willingly give up any part of it to you, then you may take it with ease and pleasure (An-Nisa, 4). The verse upon which they rely is not a proof: the manifest indecency therein means, linguistically, that she insults him, outrages his honor and contravenes his command; every indecency mentioned in the Quran qualified as manifest is verbal, and every unqualified indecency therein designates zina; the exception therein is detached (munfasil); the meaning of the verse is therefore: but if they disobey you and contravene your command, what you spent of their wealth becomes lawful to you, that is, with their good pleasure; and this good pleasure exists only if there is neither harm nor torment from his side. According to this interpretation, the verses of the Quran agree without contradicting one another; other interpretations have been given, and this one is the finest, and Allah knows best. (Al-Bayan wa't-tahsil, 5/233-234; al-muqaddimat al-mumahhidat, 1/503)
Ibn Abd al-Barr said: Abu Qilaba and Muhammad ibn Sirin said: khul' is not lawful for a man as long as he has not found a man upon her belly. In my eyes this is nothing, for indecency can lie in obscene speech and rupture; hence the speaker of obscenity is called shameless; and if he catches her in flagrant indecency, he has the li'an (mutual imprecation) and may divorce her if he wishes; as for tormenting her until she ransoms herself from him with her wealth, that is not his; and I know of no one who said “he may torment her and mistreat her until she makes khul' if he catches her committing zina,” except Abu Qilaba, and Allah knows best. (Al-Istidhkar, 6/79; tafsir al-Qurtubi, 5/96)
The Shaykh al-Islam Ibn Taymiyya was asked about a man who suspected his wife of indecency, seeing nothing in her that the Sharia rejects, but who claimed he had sent her to a wedding, then spied on her and did not find her there; she denied it; then he went to her guardians and exposed the affair to them; they summoned her to face her husband; she refused, fearing a beating, and went to her maternal uncle's house; the husband then took that as a basis to annul her right, claiming she went out without his permission: does that annul her right? And does the denial she expressed require a denial in the sense of the Sharia?
He answered: Allah said the verse of An-Nisa (19). It is not lawful for a man to coerce the woman by withholding and tormenting her until she gives him part of the dower, nor to beat her for that; but if she commits a manifest indecency, he may coerce her to ransom herself from him and may beat her: this belongs to what is between the man and Allah. As for the woman's guardians, they must uncover the truth with whoever helps them; if it becomes clear to them that she is the one who transgressed the limits of Allah and harmed the husband in his bed, she is unjust and transgressing: let her ransom herself from him. If he claims he sent her to a wedding and she did not go, let him ask where she went; if she mentions people without suspicion and they confirm her, or say: “she did not come to us and did not go to the wedding,” it is a suspicion that strengthens the word of the husband. As for the trousseau she brought from her father's house, he must return it to her in any case; if they reconcile, the amicable settlement is preferable; when the woman repents, her husband may take her back, without objection, for the one who repents from sin is like the one who has no sin; and if they do not agree on her return, let her absolve him of the dower and let the husband make khul': khul' is lawful by the Book of Allah and the Sunnah of His Messenger, as Allah said: if you fear that the two will not keep the limits of Allah, then there is no sin upon either of them in what she gives up to free herself (Al-Baqara, 229), and Allah knows best. (Majmu' al-fatawa, 32/283-284)
The jurists differ on the nature of khul': is it a dissolution of the marriage, so that if he makes khul' and then remarries her, she returns to him with the full count of repudiations? Or an irrevocable divorce, so that one khul' counts as one repudiation decreasing his count: if he then remarries her, she returns to him with two repudiations remaining; and if he makes khul' three times, she is thrice divorced?
The majority of jurists, the Hanafis, Malikis, Shafi'is within the school, and the Hanbalis according to a narration, holds that khul' is an irrevocable divorce counting as one repudiation like the formula of divorce, unless he names three repudiations or intends them; for it is a formula that only the husband possesses, it must therefore be a divorce, as if he said: “you are divorced against a thousand”; and because Allah, the Most High, mentioned it between two repudiations:
“Divorce is only twice. Then either a retention according to what is acceptable, or a release with kindness. And 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. If you fear that they will not keep the limits of Allah, then there is no sin upon them in what she gives up to free herself. Such are the limits of Allah, do not transgress them. Those who transgress the limits of Allah, it is they who are the wrongdoers”
Surah Al-Baqara, 229
Allah having mentioned khul' between two repudiations, it is known that it is attached to them; and because dissolution is what occurs following a prior cause such as defects, while khul' can be initiated without cause: it is therefore a divorce, for it can occur without cause even more than being a dissolution that occurs only with cause; and because dissolution obliges restitution of the compensation like dissolution in sale: if khul' were a dissolution, it would be valid only with the dower; its validity with the dower or without it proves that it leaves dissolution and enters divorce.
And the hadith of Abdallah 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.” 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). In one of its wordings: “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,” and he did so. Sound hadith: narrated by Abu Dawud (2228). It is known that whoever says to his wife “I have separated from you” or “I have set you free” with the intention of separation, it is a divorce; the khul' performed by the command of the Legislator was therefore a divorce; likewise, no one disputes that if he says: “I divorce you against wealth” or “I entrust your affair to yourself against wealth,” it is a divorce; likewise if he says “I make khul' with you without wealth” with the intention of separation: it is a divorce; the same applies if he does it with wealth.
Ibn Abbas narrated that “the Prophet made khul' an irrevocable divorce”: weak hadith, narrated by ad-Daraqutni (4025) and al-Bayhaqi in as-Sunan al-kubra (14642). And from Sa'id ibn al-Musayyab: “the Prophet made khul' a divorce”: weak, mursal, narrated by Ibn Abi Shayba in his Musannaf (18433).
What Malik narrated, from Hisham ibn Urwa, from his father, from Jumhan, the freedman of the Aslam, from Umm Bakr al-Aslamiyya: “she made khul' from her husband Abdallah ibn Usayd, then both regretted; they came to Uthman about it, and he said: it is a divorce, unless you named something: then it is what you named; he took her back.” Weak hadith: narrated by Malik in al-Muwatta according to the narration of Muhammad ibn al-Hasan (2/490), by ash-Shafi'i in his Musnad (267) and by Abd ar-Razzaq in his Musannaf (11760).
Every separation dependent on the will of the spouses, not obtained by compulsion, is not a dissolution but a divorce; the wife moreover granted the compensation to the husband for the separation that the husband possesses; the separation whose effectuation the husband possesses is divorce, not dissolution; and he uttered a metonymy of divorce intending her separation: it is therefore a divorce. If one objects that uttering the formula of khul' equals the iqala in sale, thus a dissolution and not an initiated divorce: it is answered that no one disputes the validity of khul' without wealth or for less than the dower, whereas the iqala is valid only with the very price of the contract; if khul' were a dissolution like the iqala, it would be valid only with the very dower for which he married her; the unanimous agreement on its validity without wealth or for less than the dower proves that it is a divorce with wealth, not a dissolution, with no difference from the saying “I divorce you against this wealth.”
As for the verse, considered in its very composition, it indicates, after the utmost condescension, that ransom is a separation and nothing else: what is established in it is that Allah, after legislating the three repudiations and clarifying them, stated another ruling, namely the lawfulness of giving her compensation to free herself from the bond of marriage and taking it from her, without addressing whether it is something other than a divorce or a divorce, the third repudiation or not: it therefore necessarily follows that khul' is taken entirely outside the count. This is sounder than their view that the verse specifies the third repudiation with or without compensation, for the answer does not need it, and because it would imply that khul' is legislated only after two repudiations; in reality, the verse only legislated the three repudiations and clarified another ruling: the lawfulness of ransoming the ownership of marriage, without further addition.
The Shafi'is according to another opinion, and the Hanbalis within the school, the choice of the Shaykh al-Islam Ibn Taymiyya and Ibn al-Qayyim: khul' is a dissolution and not a divorce: if she returns to him, she returns with three repudiations or what remains of them, unless he intends thereby divorce: it is then a divorce according to the correct view. Al-Mardawi said in al-Insaf (8/393): if he effects it with an explicit formula of divorce, it is a divorce according to the correct position of the school, followed by most of the companions, and many of them were decisive on it. It is said: it is a dissolution even with an explicit formula of divorce, if it is with compensation; shaykh Taqi ad-Din also adopted it, saying that the words of Imam Ahmad indicate it and that his companions preferred it. He said in al-Furu': my father Abdallah meant the view of Ibn Abbas, which it is authentic for him to have said: “what wealth renders lawful is not a divorce”; and it is authentic from him: “khul' is a separation, not a divorce”. He said in al-Furu': khul' with explicit formula is a divorce, or by intention an irrevocable divorce; without specification; the opposite is said; and according to him: with explicit formula of khul', it is a dissolution not counting in the number, and according to him the opposite: by intention, a divorce.
They rely on what is narrated from Ibn Abbas: “khul' is a separation, not a divorce” (narrated by ad-Daraqutni, 3869). And from Ibn Abbas: “the wife of Thabit ibn Qays made khul' from him and the Prophet set her waiting period at one single menstrual cycle”: sound hadith, narrated by Abu Dawud (2229) and Tirmidhi (1185). And from Muhammad ibn Abd ar-Rahman: ar-Rabay' bint Mu'awwidh ibn Afra' informed him that Thabit ibn Qays ibn Shammas struck his wife and broke her arm; she was Jamila bint Abdallah ibn Ubayy; her brother came to complain of him to the Messenger of Allah; the Messenger of Allah sent to Thabit and said to him: “take what she has upon you and set her path free”; he said: yes; the Messenger of Allah ordered her to wait one single menstrual cycle then join her family. Sound hadith: narrated by an-Nasa'i (3497). Al-Khattabi said: “herein is the strongest proof for the one who says that khul' is a dissolution, not a divorce: had it been a divorce, one single cycle would not have sufficed for her waiting period.” (Fath al-Bari, 9/402)
Ibrahim ibn Sa'd ibn Abi Waqqas asked Ibn Abbas: a man divorced his wife twice then she made khul' from him: may he marry her? He said: “yes, let him marry her: khul' is not a divorce; Allah mentioned divorce at the beginning of the verse and at its end, and khul' in between: khul' is therefore nothing.” Then he recited: “Divorce is only twice. Then either a retention according to what is acceptable, or a release with kindness” (Al-Baqara, 229), and: “If he divorces her, she shall no longer be lawful to him until she marries another husband” (Al-Baqara, 230). Narrated by Sa'id ibn Mansur in his Sunan (1455), by ash-Shafi'i in al-Umm (5/114), by Abd ar-Razzaq in his Musannaf (11771) and by al-Bayhaqi in al-Kubra (14640). He mentioned two repudiations, khul', then a repudiation: if we counted khul' as divorce, the repudiations would be four in the context of this verse, whereas divorce cannot exceed three; and because marriage is a contract that supports dissolution through rights of option, like the option of lack of equivalence, the option of manumission and the option of puberty, it therefore also supports dissolution by consent, which is khul'; and he took as evidence this exchange, which supports dissolution by consent, like sale and purchase; and because it is a separation free of any explicit formula of divorce and of its intention: it is therefore a dissolution like the other dissolutions.
As for the hadith “accept the garden and divorce her with one divorce,” it belongs to the narration of Ikrima from Ibn Abbas; yet it is established from Ibn Abbas, Ikrima and others that they did not count khul' among the three repudiations. Ahmad ibn Hanbal narrated: Yahya ibn Sa'id al-Qattan, from Sufyan, from Amr ibn Dinar, from Tawus, from Ibn Abbas: “khul' is a separation, not a divorce.” Abdallah ibn Ahmad said: I saw my father inclining towards the view of Ibn Abbas, which is the view of Ishaq, Abu Thawr, Dawud and their companions, except Ibn Hazm. Abd ar-Razzaq narrated, from Ibn Jurayj, from Ibn Tawus: my father did not consider ransom a divorce and left the choice between the two. Ibn Jurayj said: Amr ibn Dinar informed me that he heard Ikrima hear Ibn Abbas say: “everything that wealth renders lawful is not a divorce,” meaning khul'. Narrated by Abd ar-Razzaq in his Musannaf (11770) and by Sa'id ibn Mansur in his Sunan (1454). It is thus this Ikrima who says: “every separation that occurs with wealth is not of the three repudiations”; such is the meaning of the ransom mentioned in the Book of Allah, and ransom is not of the three repudiations as Ibn Abbas clarified, even though al-Bukhari narrated the hadith of the wife of Thabit ibn Qays through their channel, both of them. (Masail al-imam Ahmad wa-ibn Rawh, 1/490; al-Mughni, 7/249; Majmu' al-fatawa, 32/301-322; I'lam al-muwaqqi'in, 1/224; Zad al-ma'ad, 5/197, 202; al-Furu', 1/231; al-Mubdi', 7/227; sharh az-Zarkashi, 2/452-453; al-Insaf, 8/392-393; al-Ifsah, 2/162-163; Kashshaf al-qina', 5/245-246; sharh muntaha al-iradat, 5/340; matalib uli an-nuha, 5/295-296; Manar as-sabil, 3/76; Rawdat at-talibin, 5/238-239)
Imam al-Mawardi said in al-Hawi al-kabir: when the spouses conclude a khul', their contract cannot fail to fall into one of three categories. The first: the explicit formula of divorce, as “I divorce you against a thousand,” “I separate from you against a thousand” or “I set you free against a thousand”: explicit formula; it is an explicit divorce with compensation, and it is not a dissolution. The second category: the metonymy of divorce, as “you are irrevocably separated against a thousand,” “you are freed or released against a thousand”: it is a metonymy; and the metonymy with compensation belongs to divorce, not dissolution: if he intends divorce, it occurs and the compensation is due; if he does not intend divorce, neither divorce nor compensation occurs. The third category: the formula of khul' and ransom, as “I made khul' with you against a thousand,” “I ransomed you against a thousand”: these two formulas are metonymies of divorce when devoid of compensation, following the other metonymies of divorce; with compensation, there are two views: the first, stated in the book al-Umm: it is a metonymy of divorce, for being a metonymy without compensation, it is so too with compensation, like the other metonymies. The second opinion, the sounder of the two and stated in the rest of his books: it is an explicit formula, for two reasons: the Book of Allah employed it as it employed the explicit formula of divorce, so it is explicit by the text and leaves the domain of metonymies; and the attachment of compensation to it excluded any possibility of metonymy, making it explicit by absence of possibility. On this basis, if it is explicit, is it a divorce or a dissolution? Two views: in al-Umm, al-Imla' and ahkam al-Qur'an, it is an explicit divorce; likewise said the Companions Uthman, Ali and Ibn Mas'ud, and the jurists al-Awza'i, ath-Thawri, Abu Hanifa and Malik: it is the choice of al-Muzani; its proof is the verse of Al-Baqara (229) up to: there is no sin upon them in what she gives up to free herself, then: if he divorces her, she shall no longer be lawful to him until she marries another husband (Al-Baqara, 230): khul' mentioned between two repudiations is attached to them; it is a formula that only the husband possesses, therefore a divorce like divorce; dissolution is what occurs following a prior cause such as defects, while khul' can be initiated without cause: it is therefore a divorce; dissolution obliges restitution of the compensation as in sale: if khul' were a dissolution, it would be valid only with the dower; its validity with the dower or without it proves that it leaves dissolution and enters divorce. The second opinion, stated in his earlier work: it is an explicit dissolution; likewise said the Companions Abdallah ibn Abbas and Abdallah ibn Umar, the Successors Ikrima and Tawus, and the jurists Ahmad, Ishaq and Abu Thawr; its proof: the verse of Al-Baqara (229) then: if he divorces her, she shall no longer be lawful to him until she marries another husband: if khul' were a divorce, it would make, with the two prior repudiations, three repudiations and she would be forbidden to him until another husband; then “if he divorces her,” that is the third, “she shall no longer be lawful to him until she marries another husband”: yet he has already divorced her three times, and the prohibition would bear upon four, not three; and separation in marriage occurs through divorce or dissolution; separation through divorce divides into two: with and without compensation; that through dissolution likewise; for marriage is an exchange contract: if compulsory dissolution can attach to it, dissolution by choice can too, like sale. The difference between dissolution and divorce: if he marries her after dissolution, she is with him upon three; after divorce, upon two; if he divorced her twice then made a dissolution (khul'), she becomes lawful to him again before another husband; if he divorced her, she becomes lawful to him only after another husband; if he dissolves her marriage in three contracts, she becomes lawful to him again before another husband; if he divorces her in three contracts, she becomes lawful to him only after another husband. Such is the soundest arrangement of the school; some companions arranged it differently, giving the formula of khul' two views: dissolution or divorce, and two further views on its being explicit or metonymic; others three views: dissolution, explicit divorce, metonymy of divorce. (Al-Hawi al-kabir, 10/8-10)
Imam Ibn Rushd said: “as for the type of khul', the majority of scholars hold it a divorce; Malik said so; Abu Hanifa made divorce and dissolution equal; ash-Shafi'i said dissolution, as did Ahmad and Dawud; among the Companions, Ibn Abbas. It was narrated from ash-Shafi'i that it is a metonymy: if he intends divorce, it is a divorce; otherwise a dissolution; and it was said of him, in his later view, that it is a divorce.” The benefit of the disagreement: is it counted among the repudiations? The majority of those who hold it a divorce make it an irrevocable divorce, for if the husband had revocation during the waiting period, the ransom would have no meaning. Abu Thawr said: if he does not effect it with the formula of divorce, he has no revocation over her; if he effects it with the formula of divorce, he has revocation.
The one who made it a divorce argued that dissolutions are separations imposed upon the husband whose separation does not return to his choice, whereas this returns to his choice and is therefore not a dissolution. The one who did not hold it a divorce argued that Allah mentioned divorce in His Book: “Divorce is only twice” (Al-Baqara, 229), then ransom, then: “If he divorces her, she shall no longer be lawful to him until she marries another husband” (Al-Baqara, 230): if ransom were a divorce, the repudiation after which she is no longer lawful to him except after another husband would be the fourth repudiation. These hold dissolutions possible by consent, by analogy with the dissolutions of sale, namely iqala; the opponent holds that the verse only established the ruling of ransom as something attaching to all kinds of divorce, not as something other than divorce.
The cause of the disagreement: does the attachment of compensation to this separation remove it from the type of separation of divorce to the type of separation of dissolution, or not? (Bidayat al-mujtahid, 2/52)
The benefit of the disagreement: according to the view that khul' is a dissolution, if he remarries her after it, she is with him upon three, and she is not forbidden to him even were he to make khul' a hundred times; and if he divorced her twice then dissolved (khul'), she becomes lawful to him again before another husband; and if he dissolves her marriage in three contracts, she becomes lawful to him again before another husband. According to the view that it is a divorce: khul' counts and decreases: if he remarries her after khul', she is with him upon two; if he divorced her twice then made khul', she does not become lawful to him before another husband; and if he makes khul' in three contracts, she does not become lawful to him before another husband.
The benefit of the stratagem in khul' to prevent the divorce from taking effect appears in two cases. The first: if he suspends the divorce of his wife upon the accomplishment of an act he must accomplish anyway, saying “you are divorced three times,” or swearing by more than one repudiation; he then makes khul', then performs the sworn act; or if he says: “if Zayd arrives, you are divorced three times,” and makes khul' before Zayd's arrival. This applies according to the view that khul' is a divorce, not a dissolution, and it only benefits him if he swore by two or three repudiations; if he swore by a single one, it does not benefit him according to this view: if he said “if I do such a thing, you are divorced” and seeks to free himself from divorce through khul', it does not benefit him, for khul' counts as one repudiation among them.
The second case: if he swore the divorce of his wife saying “if I do such a thing, you are divorced,” then makes khul' before she performs or he performs, the divorce does not occur: this applies according to the view that khul' is a dissolution.
The jurists differed on the status of khul' by stratagem: is it permitted or not? If it is not, is it forbidden while remaining valid? The Hanbalis within the school: khul' by stratagem to annul an oath of divorce, or to annul a suspended divorce, as if he says “if Zayd arrives, you are divorced” then makes khul' before his arrival, is forbidden like the other stratagems and the khul' does not occur. Shaykh Taqi ad-Din said: khul' by stratagem is not valid according to the soundest view, like the marriage of the muhallil (the one who renders lawful); for separation is not its purpose, but the remaining of the woman with her husband is intended, as in the marriage of the muhallil; yet a contract is not intended for the contrary of its purpose.
Some Hanbalis, as stated in ar-Ri'ayatayn and al-Hawi, say that khul' by stratagem is forbidden but occurs. Imam al-Mardawi said in al-Insaf: “most people fall into this issue and use it in these times: according to this view they find a way out of it.” In the clear text of Ibn Aqil: it is recommended to inform the one seeking a fatwa of the madhhab of another than the mufti, if the questioner is eligible for the dispensation, like the one seeking to escape falling into riba or khul' and finding no way in his school: one directs him to the one who permits the stratagem to free himself from it, namely riba and khul', and the latter gives him the fatwa of the validity of khul' without the divorce occurring, so that he is not compelled to fall into the forbidden prohibition; for man is not obliged to adhere to a specific school to the point of believing its correctness and the error of others, else the matter would be straitened for people; Allah has not burdened His servants with what they cannot bear, and He made the disagreement of the schools a mercy for this community.
The support of this: what the qadi Abu al-Husayn transmitted in his Furu': people brought Imam Ahmad a fatwa and asked him; it did not belong to his madhhab; he said: “resort to the circle of the people of Medina”: proof that the mufti, when the questioner comes and he has no dispensation with him, directs him to a school that has one. Ar-Ruhybani said, in completion: shaykh Taqi ad-Din said: if the man believes in separation through khul' by stratagem, then performs what he swore, his ruling is like the one who says to whom he believed a stranger “you are divorced” and it appears she is his wife: his wife is thereby separated; and if he makes khul' by stratagem and performs the sworn act believing the marriage has ended while it is not so, because of the invalidity of khul' by stratagem, he is like the one who swore about something he believed and which turned out contrary to his belief: he must violate his oath by a divorce and a manumission. He said in at-Taftih: “most people fall into that,” meaning khul' to annul an oath of divorce. He said in sharh al-Iqna': “it resembles the one who makes khul' of the first wife then marries her sister, then makes khul' of the second and takes back the first, and so on: he falls under the saying of the shaykh, namely that khul' by stratagem is not valid, and under their saying that all stratagems are not permitted in any matter of religion.” (Matalib uli an-nuha, 5/315-317; al-Mubdi', 7/248; al-Furu', 5/278-279; al-Insaf, 8/424-425; Kashshaf al-qina', 5/264-265; sharh muntaha al-iradat, 5/359; Manar as-sabil, 3/74-75)
The Shafi'is: khul' by stratagem is permitted without dislike. They say: if he swore the three repudiations upon the accomplishment of an act he must perform, he makes khul' then performs the sworn act, for it is a means of escaping the occurrence of the three repudiations. Ad-Damiri transmitted from the shaykh: “one day I went to Ibn ar-Rif'a; he said to me: a question came to me concerning a man who swore he must perform such a thing within this month, then made khul' before completing it; I answered that he frees himself; then it appeared to me that it was an error; al-Bakri entered and adopted the freeing; I showed him it was an error; al-Qammuli entered and adopted the freeing; I showed him it was an error. I began debating with him and inclining towards the freeing, and he maintained it was an error and that the correct is that he wait: if he does not perform until the month expires, the sworn divorce occurs before the khul' and the khul' is void. Then I asked al-Baji without mentioning to him the words of Ibn ar-Rif'a; he said: khul' does not free him, for he was able to perform the sworn act and did not.”
Then I saw in ar-Rafi'i, at the end of the chapter of divorce: if he says “if you do not leave this house tonight, you are divorced,” then makes khul' with a stranger during the night, renews the marriage and she does not leave, the divorce does not occur, for the whole night is the locus of the oath and the night has not elapsed, and she remains his wife until the divorce occurs; and if he has before him two apples and says to his wife “if you do not eat this apple today, you are divorced” and to his slave “if you do not eat the other today, you are free,” the apple of divorce and that of manumission became confused; he mentioned two ways, according to some companions, of freeing himself; then he said: if he makes khul' of his wife that day, sells the slave, then renews the marriage and buys the slave, he is freed. And the outward meaning of these two questions contradicts the saying of Ibn ar-Rif'a and al-Baji. (An-najm al-wahaj, 7/430-431)
Al-Khatib ash-Shirbini said: khul' is disliked... he said in at-Tanbih: except in two cases. The first: that both, or one of them, fear not keeping the limits of Allah. The second: that he swear by the three repudiations upon the accomplishment of an act he cannot avoid, like eating, drinking or relieving a need; he then makes khul', performs the sworn act, then marries her again: he does not violate his oath, for it is dissolved by the first act, covering only the first act, which occurred. If he makes khul' and does not perform the sworn act: two views; the sounder of the two is that he frees himself from the violation: if he then performs the sworn act after the marriage, he does not violate the oath, for it is a suspension preceding this marriage, which does not affect it, like when he suspends divorce before the marriage and the condition is realized after.
Clarification: the outward meaning of their words is that freeing is obtained through khul' even if the sworn act is limited by a period; such is the case; some later scholars contradicted this. As-Subki said: I went to Ibn ar-Rif'a, who said to me: I was asked about the one who swore the three repudiations upon performing such a thing within this month, then made khul' within the month; I answered that he frees himself from the violation; then it appeared to me that it was an error; al-Bakri adopted with me the freeing and I showed him it was an error. Then I asked al-Baji without mentioning to him the words of Ibn ar-Rif'a: he adopted it. Then I saw in ar-Rafi'i, at the end of the chapter of divorce, that he said: if he says “if you do not leave this house tonight, you are divorced three times,” then makes khul' with a stranger during the night, renews the marriage and she does not leave, the divorce does not occur, for the whole night is the locus of the oath and the night has not elapsed, and she remains his wife until the divorce occurs; and if he has before him two apples and says to his wife “if you do not eat this apple today, you are divorced three times” and to his slave “if you do not eat the other today, you are free,” the apple of divorce and that of manumission became confused; he mentioned two ways, according to some companions, of freeing himself. Then he said: if he makes khul' of his wife that day, sells the slave, renews the marriage and buys the slave, he is freed; and the outward meaning of these two questions contradicts the saying of Ibn ar-Rif'a and al-Baji. End. And so it is: what is retained is to give full scope to the words of the companions. (Mughni al-muhtaj, 4/429-430)
Imam Ibn al-Qayyim supported the lawfulness of khul' by stratagem with ten arguments. He said: “eleventh exit: the khul' of the oath according to those who permit it, like the companions of ash-Shafi'i and others; though not permitted according to the view of the people of Medina, that of Imam Ahmad and all his companions, when necessity calls for it, or for rendering lawful, it is preferable to the latter for several reasons. The first: Allah legislated khul' to remove the evil of hardship between the spouses and to free each of the other; having legislated khul' to remove that evil which, compared to the evil of the unlawful marriage, is a drop in the sea, permitting it to repel the evil of the latter is even more fitting. The second: forbidden stratagems are forbidden only because of the corruption they contain, that of the forbidden things resorted to through these stratagems; as for a stratagem that removes an evil among the greatest evils, the Legislator does not forbid it. The third: this stratagem contains the benefit of the persistence of marriage, which the Legislator wants to persist, and repels the evil of the unlawful marriage, against which the Legislator exerted the utmost prevention and cursed its practitioners; a stratagem that achieves the desired benefit and repels the evil to be removed is not forbidden. The fourth: what the Legislator forbade, He forbade only because of its pure or predominant corruption; if it contains a particular or predominant benefit, He does not forbid it at all; and the benefit of this khul' outweighs its evil. The fifth: the utmost of this khul' is the agreement of the spouses and their consent to dissolve the marriage without actual discord between them; khul' without discord is valid, its utmost being the dislike, because of the evil of separation; this khul' is intended to untangle the marriage through a subsequent contract in which the spouses can live together in kindness; without it they cannot: it would be the ruin of the household and the separation of the family, or exposure to the curse of the one whose curse cannot be borne, or commitment to his oath even if it corrupts his world and his hereafter, as if he swears to kill his son today, or to drink this wine, or to go to this forbidden intimacy, or never to eat, drink, shelter under a roof, or to withhold from so-and-so his right; when the matter oscillates between the evil of fulfilling his oath, the evil of divorce, the ruin of the household and the dispersal of the family, and the evil of exposing himself to the curse of Allah by committing the unlawful marriage, on the one hand, and the stratagem of khul' that frees from all of that, on the other, the sound mind does not doubt which is preferable. The sixth: had they agreed that he divorce her without discord between them, so that he may marry another, he would not be prevented; if they therefore agree upon khul' so that their union continues, it is more fitting and more worthy. The seventh clarifies it: if it is said that khul' is a divorce, they agreed upon a divorce with compensation, in their interest: what forbids it? And if it is said that it is a dissolution, there is no doubt that marriage is a binding contract, and when the contracting parties agree upon its dissolution and lifting, they are not prevented, unless the contract is a right of Allah; marriage is purely their right: they are therefore not prevented from agreeing upon its dissolution. The eighth: the verse indicated the lawfulness of khul' when the spouses fear not keeping the limits of Allah, namely their due rights in marriage; khul' with good relations is thus the way enabling them to keep the limits that cannot be maintained without it: khul' then becomes the way of keeping them. One will object: khul' is not the only way; there are two other ways: separating, or not obliging the one who swore divorce without intending it, opening for him the exit of the oath with or without expiation, according to three known views of the early generations, stated by Abu Muhammad Ibn Hazm and others. Answer: yes, these are two ways; but if they are closed most tightly, whoever follows one of them suffers the greatest harm in his religion and his world, while the way of khul' remains open: he then has only the way of khul' or the way of the people of the curse. These situations are borne only by vast intellects, which master the secrets of the Sharia, its aims and its wisdoms; as for the intellect that does not go beyond imitating the one he imitates and abandoning all the words of the scholars for his own, it is not with him that one argues. The ninth: the utmost of what the preventers argued is that it is a stratagem and that stratagems are void; their opponents dispute both premises, saying: contracts are judged by their form, not by their intentions and aims; we therefore do not question the husband who wants to make khul' of his wife: what did you intend by khul'? What is the cause that led you to it? Is it hardship or freeing from the oath? We apply the ruling of khul' according to its outward appearance and commit the secrets of the spouses to Allah. They add: even if the intention of stratagem appears, the second premise remains: not every stratagem is void and forbidden; is this long chapter not precisely devoted to the categories of stratagems? The forbidden and void stratagem is the one that renders lawful what Allah forbade, forbids what Allah rendered lawful, or annuls what He obliged; as for the stratagem that frees from shackles and chains and escapes the curse of the great tyrant, it is worthy of being a stratagem: Allah knows well the corrupter and the reformer (Surah Al-Baqara, 220); the aim is to implement the command of Allah and His Messenger as far as possible, and Allah is the One implored. The tenth: saying that the khul' of the oath is void is not sounder than obliging divorce upon the one who swore it without intending it; let us be arbitrated to the Book of Allah, the Sunnah of His Messenger, the sayings of the Companions and the rules of the pure Sharia: arbitration will show that the view of not obliging divorce upon the one who swore it without intending it is strongest in proofs, soundest in principles, most regular in analogy and most conforming to the rules of the Sharia; you admit this, whether you will or not; if it is therefore permissible for you to turn from it to the contradictory view, contrary to analogy, to the fatwa of the Companions and to the rules and principles of the Sharia, it is even more fitting for us to turn from your view on the nullity of the khul' of the oath to its contrary, achieving the interest of the spouses, untangling the marriage, annulling the evil of the unlawful marriage and freeing two Muslims from the curse of Allah and His Messenger. And Allah knows best.” (I'lam al-muwaqqi'in, 4/110-113)
In tanqih al-fatawa al-hamidiyya of Ibn Abidin, it was asked: Zayd swore the three repudiations upon Amr not entering the known house of Zayd; Zayd then made khul' of his wife, still under his bond, for a known compensation, and Amr entered the house; a Shafi'i judge ruled the dissolution of the oath and the return of the wife to Zayd through a lawful contract, without the three repudiations falling upon Zayd, even if entry during the waiting period was a legal ruling conforming to his madhhab and fulfilling its conditions; a Hanafi judge executed his ruling and, in the absence of a valid claim, wrote for each of the two judges a valid, lawful proof fulfilling the conditions: must the two rulings be implemented after the legal establishment of their content? Answer: yes, the two mentioned proofs are implemented after the establishment of their content, and the mentioned ruling is effective and valid, lifting the disagreement that occurred between the imams in this event. (Tanqih al-fatawa al-hamidiyya, 1/369)
The jurists of the four schools agreed that khul' is valid without resort to the judge, according to the saying of the Most High: there is no sin upon them in what she gives up to free herself (Al-Baqara, 229), unrestricted; and al-Bukhari narrated it from Umar and Uthman: “Umar permitted khul' without the ruler, and Uthman permitted khul' without touching the root of her hair.” (Sahih al-Bukhari, 5/2021). And because if it is said to be an exchange contract, it is like sale; if it is said to be the dissolution of a contract by consent, it is like the iqala; and neither of the two needs a judge; and just as marriage is valid without the ruler, so is khul'.
Imam Abu Bakr al-Jassas said: the early generations differed on khul' without the ruler: al-Hasan and Ibn Sirin transmitted that khul' is valid only before the ruler. Sa'id ibn Jubayr said: khul' only occurs after he admonishes her: if she heeds the admonition, else he forsakes her; if she heeds, else he strikes her; if she heeds, else they refer to the ruler, who appoints an arbiter from his family and an arbiter from hers; they report to the ruler what they hear; if he then judges to separate, he separates, and to unite, he unites. It was narrated from Ali, Umar, Uthman, Ibn Umar, Shurayh, Tawus and az-Zuhri, among others, that khul' is permitted without the ruler. Sa'id narrated from Qatada: Ziyad was the first to reject khul' without the ruler; and there is no disagreement among the jurists of the great cities on its lawfulness without the ruler: the Book of Allah requires its lawfulness, in His saying: there is no sin upon them in what she gives up to free herself (Al-Baqara, 229), 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): He permitted taking from her by their mutual consent, without ruler; and the saying of the Prophet to the wife of Thabit ibn Qays: “Will you return his garden to him?”; she said: yes; he said to the husband: “take it and separate from her”: this indicates it too, for had khul' belonged to the ruler, whether they willed it or not, the Prophet would not have questioned them about it and would not have addressed the husband saying “make khul'”; he would have done it himself and returned the garden to him even if they refused, one of the two or both, as in the separation of the spouses in imprecation referred to the judge: he did not say to the imprecatory husband “set her path free,” but separated them, as Sahl ibn Sa'd narrated: “the Prophet separated the two spouses in imprecation,” and as he said in another hadith: “you have no right over her,” without referring that back to the husband. The lawfulness of khul' without the ruler is thus established; and his saying: “the wealth of a man is not lawful except with the good pleasure of his soul” indicates it too. (Ahkam al-Qur'an, 2/94-95)
Al-Hafiz Ibn Hajar said: his saying, that is al-Bukhari's, “Umar permitted khul' without the ruler,” meaning without his permission; and Ibn Abi Shayba transmitted it through Khaythama ibn Abd ar-Rahman: “Shar ibn Marwan was brought a khul' between a man and a woman and he did not permit it; Abdallah ibn Shihab al-Khawlani said to him: Umar was brought a khul' and permitted it.” The author alluded to a disagreement on this: Sa'id ibn Mansur transmitted it: Hushaym informed us, Yunus informed us, from al-Hasan al-Basri: “khul' is not permitted without the ruler.” Hammad ibn Zayd narrated, from Yahya ibn Atiq, from Muhammad ibn Sirin: “they used to say,” and he mentioned the like. Abu Ubayd adopted it, relying on the saying of the Most High: if you fear that they will not keep the limits of Allah (Al-Baqara, 229) and on His saying: If you fear a breach between the two spouses, appoint an arbiter from his family and an arbiter from hers (An-Nisa, 35): he made the fear for others than the spouses and did not say: if they both fear; he strengthened this with the reading of Hamza in the verse of this chapter: except that it be feared, in the passive form; he said: the guardians are intended. An-Nahhas rejected it: it is a view supported neither by grammar, nor by wording, nor by meaning; and at-Tahawi: it is an anomalous reading contrary to what the great mass follows; and, from the standpoint of consideration, divorce is permitted without a judge, and so is khul'. (Fath al-Bari, 9/396-397; mukhtasar ikhtilaf al-ulama, 2/465-466; sharh sahih al-Bukhari, 7/424; al-Ishraf, 3/378-379, no. 1208; al-Muhadhdhab, 2/71; al-Bayan, 10/15; al-Mughni, 7/246-247; al-Kafi, 3/144; al-Mubdi', 7/220-221; Kashshaf al-qina', 5/242-243; Fath al-Bari, 9/396-397; Umdat al-qari, 20/261)
Some Hanbali jurists adopted, and it is one of the two views of the Shaykh al-Islam Ibn Taymiyya, that if the wife takes her husband in aversion and chooses separation, the husband is obliged to answer her request. 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, answering her request is recommended; 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; it is lawful for the wife according to the correct position of the school, followed by most of the companions, and 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; Manar as-sabil, 3/70)
The position followed by the majority of jurists is that khul' is valid only with the consent of both spouses, without a judge being required; but this is not absolute: the woman may indeed take her husband in aversion, be unable to live with him and detest him, while he wants neither to divorce her nor to stop retaining her in order to harm her; here, some Hanbali scholars and others, and it is one of the two views of the Shaykh al-Islam Ibn Taymiyya, hold that separation becomes obligatory, and that she may bring her case before the judge, if one exists, who rules it against her husband, even without his consent, on condition that she returns to him all she took from him and absolves him of all the marital rights that weigh upon her; shaykh Ibn Baz and Ibn Uthaymin gave this fatwa, and it is what one inclines towards: marriage is a contract between two parties, and just as Allah permitted the husband to divorce his wife without her consent and to sever the marriage bond, the other contracting party may sever the marriage contract through khul', even without the husband's consent. The issue contains neither consensus nor text obliging the husband's consent in all cases: if he refuses and harms the woman, khul' without his consent is permitted to her; Egyptian law adopted it, and contemporary jurists as well as earlier ones gave this fatwa. Shaykh Ibn Baz said in a similar case: the separation of such a woman from her mentioned husband is obligatory if she pays him her mahr, according to the saying of the Prophet to Thabit ibn Qays when his wife took him in aversion, sought separation and offered to return his garden: “accept the garden and divorce her with one divorce,” narrated by al-Bukhari in his Sahih; and because her remaining under his bond, given the described state, causes her many harms; the Prophet said: “no harm and no reciprocal harm”; and because the Sharia came to realize interests and perfect them, remove evils and reduce them; and there is no doubt that the remaining of such a woman within the bond of her husband is among the evils to remove, suppress and rule upon; and if the husband refuses to appear in court with this woman, it falls to the judge to dissolve her marriage upon her request if she returns her mahr to him, according to the two preceding hadiths and the meaning brought by the Sharia and settled among its rules. End, taken from Majmu' fatawa Ibn Baz.