Question

• Wife wants a divorce from husband but her husband refuses to give. She wants to apply for a khula, what is the correct way?
• She wants a divorce on the following grounds; husband has anger problems, wife doesn't feel safe with husband, mother-in-law is manipulative, husband refuses to provide separate house for wife, stops wife visiting her parent's house.
• Can a wife demand a khula? What if the husband refuses?

Al-Jawaab

Without a valid reason, it is forbidden to demand a divorce from the husband. The Messenger of Allah ﷺ said,

"Whichever woman, without reason, asked her husband for a divorce, then the fragrance of Jannah is forbidden for her".

In another Hadith, the Messenger of Allah ﷺ regarded the woman who seeks khula' from her husband as a hypocrite. This is without doubt when the khula' is sought without a valid reason. Otherwise, when there is a valid reason for seeking khula', it is permissible. Allah Subhanahu Wa Ta'aala said in the Quran,

الطَّلاقُ مَرَّتانِ فَإِمساكٌ بِمَعروفٍ أَو تَسريحٌ بِإِحسانٍ وَلا يَحِلُّ لَكُم أَن تَأخُذوا مِمّا آتَيتُموهُنَّ شَيئًا إِلّا أَن يَخافا أَلّا يُقيما حُدودَ اللَّهِ فَإِن خِفتُم أَلّا يُقيما حُدودَ اللَّهِ فَلا جُناحَ عَلَيهِما فيمَا افتَدَت بِهِ تِلكَ حُدودُ اللَّهِ فَلا تَعتَدوها وَمَن يَتَعَدَّ حُدودَ اللَّهِ فَأُولئِكَ هُمُ الظّالِمونَ

In this verse of Surah Al-Baqarah, Allah Subhanahu Wa Ta'aala has allowed the woman to seek a divorce in exchange of the dowry she was given at the time of Nikah if they both believe they are unable to fulfil the rights of each other. This is known as Khula'. If this is the case and the failure to fulfil the rights is from the husband then it is not permissible for him to demand anything in exchange of the divorce, not even the dowry he paid at the time of nikah. If the failure is from the woman, then he may ask for the dowry and also freedom from paying her provision while she is in Iddah, to ask for anything more is disliked in Shariah although permitted.

It is important to note here that Khula' only occurs with the pleasure of the husband because, in reality, it is a divorce. It issues an irrevocable divorce which is known as a Talaaq Baa'in. In Fataawa Ridwiyya, it says,

"By law, Khula' is when the husband with his pleasure frees the woman from the Nikah in exchange of the dowry and other wealth. The woman can not do it alone."

It is summarised in Hidayah in these words,

"If the husband and wife keep arguing and fear they are unable to abide by the boundaries of Allah then there is no harm in her freeing herself in exchange of wealth (khula') and when they do Khula', a Talaaq Baa'in will occur and the wealth agreed upon is necessary upon the woman".

The condition for Khula' is that the woman accepts the offer and it only occurs with the use of certain wording and the mention of an amount in exchange. If the husband said, 'I have done Khula' with you', without mentioning an amount of wealth in exchange then this is a Talaaq and not Khula' whereby it would be dependant on her agreeing or accepting it. However, if he said, 'I have done Khula' with you in exchange for the dowry I paid at the time of Nikah', then it is dependant on the agreement of the wife. If she said, 'I accept this' then Khula' has occurred and a Talaaq Baa'in is issued, she will go into Iddah and after the Iddah, she will be free to marry another and the amount mentioned will be necessarily due. If they decide to get back together then they may do so with a new Nikah whether it is before she finishes the Iddah or after.

Khula' ends all the rights of each other that were due because of the Nikah between the two. However, the responsibility of provision for the wife will remain upon the husband while she is in Iddah unless he has freed himself from it in the words used for Khula' that she accepted.

From the reasons mentioned in the questions, anger, is quite a normal attribute of man but the mention of feeling unsafe implies that he is physically abusing her. If this is the case and she fears for her life or harm to her body limbs then she has the right to involve other people into the relationship and seek a divorce. If this anger has no valid reason but rather is due to his own frustrations and stress then such man is from the worst of people and Allah and the Messenger of Allah ﷺ are displeased with such a person. She must act now and not burden herself with such abuse, Allah Subhanahu Wa Ta'aala has said,

لا يكلف الله نفسا إلا وسعها

Allah does not burden a soul but that which it is capable of.

As for a separate house, this is from the rights of the woman that are upon the husband when he does Nikah with her. It is mentioned in the general books of Islamic Law such as Radd Al-Muhtar and Alamgiri that one of the major parts of provision for the wife is to give her an empty house which means that the Husband's relations do not live there. She has the right to demand a separate house which entails her own room with a door that can be closed, her own toilet and bathroom and her own kitchen. This is necessary upon the husband especially if her in-laws are troubling her. If her in-laws do not trouble her, and she agrees to live together then he is free from this responsibility but it appears in the question that this is not the case. Based on this, if what is mentioned in the question is fact then she has the right to demand a divorce and he has no right to ask for anything in exchange.

As for visiting her parents, she has the right to visit her parents once a week and the husband does not have the right to stop her from this. He may stop her from staying over but not from visiting in the day and her parents also have the right to visit her once a week which again the husband does not have the right to prevent and if her parents or any other Mahaarim merely want to see her then the husband does not have the right to stop them at anytime. This is mentioned in Bahare Shariat. If the husband is violating this right of his wife then this too is a valid reason for her to seek a divorce and Allah knows best.

Faqeer Zahid Hussain Al-Qadiri