Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > Contract clauses: maintenance, nights, stipulated divorce
Contents
Updated on 24 September 2026 at 7:46 PM
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)
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.