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Translated from Arabic by: Hani Abid

Indeed all praises are due to Allah, the Most Beneficent the Most Merciful; we send the blessings and peace of Allah upon the Prophet of Allah.

Islam is a religion that is based on mercy and justice in all aspects of its rulings and transactions. Thus, the objectives of Sacred Law (Maqasid al-Shari’ah) are to bring about goodness and benefit to people, and to deter and detract plight and harm away from them; among which is to remove injustice and assert rights.

Having said this, Allah SWT made marriage a foundation for mercy and love between the spouses. Allah SWT says:

And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them, and He has put love and mercy between your (hearts): verily in that are Signs for those who reflect. (30:21)

So when the characteristic of mercy is lost in a marriage, the marital relationship loses its cornerstone and becomes simply a restrain that binds both the man and the woman equally. For this reason, Allah SWT legislated the rules for arbitration in disputes. Allah SWT says:

If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: for Allah hath full knowledge, and is acquainted with all things. (4:35)

And as Allah SWT clearly showed that Shari’ah cares for the right of a woman to choose an honourable life of her choosing and warned her of the consequence of transgressing the rights of her husband, similarly He SWT also legislated divorce as the “detestable Halal” and put its authority in the hand of the husband and warned him from transgressing against the rights of his wife and committing injustice towards her. But because there are exceptional cases when a woman comes to hate the companionship of her husband after she initially accepted it, and since divorce is in the hand of the husband only, Allah SWT, being All Just, decreed that a woman who’s afflicted in such a case that can seek a legal divorce through a judge. By giving the woman this option, a bigger harm is averted if the marriage between a man and a woman who hates him continues, because the snare of women is mighty when they are helpless. Thus, the Prophet PBUH decreed legal divorce for a woman (Khul’), which is the right of woman to request separation (divorce) from her husband if she hates his companionship in return for giving back whatever he gave her in dowry and gifts which is also the ultimate justice.

Now someone will say: you are opening the door of tribulation (Fitna) and helping women destroy their homes! We say: Subhana Allah, who says this Kufr! Can we describe the command of the Prophet PBUH, his decree and guidance, which is valid to the utmost degree, as opening the door of tribulation?! Hasn’t this person through his claim already fallen into Fitna? Furthermore, the true tribulation is forcing a woman into a companionship that she hates and its the subsequent problems that no one knows except Allah. A person who makes such a claim is like the husband who accepts to be under one roof with a woman who clearly hates him. Obviously, the husband is more deserving of the reprimand and reproach due to his lack of honour and manhood.

However, we seek refuge in Allah from promoting destruction of homes and families. But we know that whatever Allah and His messenger decreed is the ultimate goodness. Women’s Legal Divorce (Khul’) has been documented in the books of Fiqh since the time of the four Imams. However, it was rare that a woman resorted to it, because Allah SWT knows that it is for exceptional cases; “Should He not know, He that created? And He is the One that understands the finest mysteries (and) is well-acquainted (with them)?”. Moreover, since it is not for us to make what Allah made unlawful as lawful, it is also not for anyone to outlaw what Allah made lawful. Legal Divorce (Khul’) is permissible from the time that the Prophet PBUH decreed it for the wife of Thabit bin Qays.

The Ruling of Woman’s Legal Divorce (Khul’):

Woman’s Legal Divorce (Khul’) is lawful in Islam by the consensus of the scholars[1]. The only known scholar to deviate from the scholarly consensus is Bakr bin Abdullah Al-Mazni . Ibn Qudamah wrote in Al-Mughni (the largest collection of comparative Fiqh):

“The woman, who detest her husband and she hates to deny him, is not disobedient in denying him; thus there’s no harm in redeeming herself by compensation.” [2]

The scholars of Islam based their consensus on the Hadith of Bukhari, Nisaei, and Ibn Majah as narrated by Ibn Abbas that:

“the wife of Thabit ibn Qays came to the Prophet peace be upon him and said: ‘O’Prophet of Allah, I do not reprimand Thabit ibn Qays for his mannerism or devoutness. However, I hate Kufr in Islam.’ The Messenger of Allah peace be upon him said: ‘Will you return his garden back to him?’ She said: ‘Yes’. The Messenger of Allah peace be upon him said [to Thabit]: ‘Accept the garden and divorce her once”[3].

In another narration by Bukhari: “but I cannot stand him” and in the narration by Ibn Majah: “but I cannot stand him because I detest him” and in another narration by Ibn Majah: “I would spit in his face”.

Ibn Qudamah said in Al-Mughni:

“If a woman hates her husband because of his mannerism, devoutness, old-age, weakness, or the like and she fears that she won’t fulfill her duty to Allah by obeying her husband, it is permissible for her to legally divorce him with compensation; because Allah SWT says: “Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul' (divorce).”(2:229)” [4]

Al-Qurtubi said: “[Imam] Malik said: I continue to hear this from the scholars and it is the consensus among us. That is, if the man does not harm or ill-treat the woman and she is not touched by him, and she wishes to separate from him, then it is permissible for him to receive compensation in return for her divorce”[5]. This means that it is permissible for the woman to obtain a legal divorce (Khul’) from her husband.

The scholars said that it is not required to ask the man about his dissension because the Messenger of Allah peace be upon him did not ask Thabit about his opinion of his wife; as mentioned by Ibn Hajar in Fath al-Bari vol.9 p.445.

The consensus is that the reason for Khul’ is simply the woman’s hatred for her husband – no more - and that there’s no other condition for it as Ibn Hajar said. Some, who claim to have knowledge of Shari’ah and Ijtihad, claim that Khul’ requires another reason other than the wife’s hatred for her husband. This opinion is rejected as follows:

1. The narration in Tabari, Nisaei, and Abi Dawood that “Thabit bin Qays bin Shammas harmed his wife and broke her hand”, we say:
   1. The woman in this narration is Jameela bint Abdullah and not the same woman in the Hadith of Bukhari and Nisaei, who is Habeeba bint Sahl who came in the early morning. That is why Ibn Hajar favoured in Fath Al-Bari that these are two separate stories[6]. Ibn Hajar said: “I say that it is apparent that they are two separate occurrences with two separate women”.
   2. The woman did not come to the Prophet to complain of her beating as it is clear from the narration in Nisaie and Abi Dawood because it was her brother who came to ask for her legal divorce.
   3. The correct narration in Bukhari and others made it clear that the woman said “I do not reprimand him” and “I cannot stand him because I detest him”. Thus, the reason for her request was her dislike for him, not because of his devoutness or mannerism.
      1. The principle used by Ahlul Sunnah is to look at all the evidences together, as was mentioned by al-Shatibi in al-Muwafaqat, and ‘Exercising the evidence is better than ignoring it’ as established in the Fiqhi principles. So we do not ignore one proof in favour of another as people of Bida’a do. Therefore in order to exercise all the proofs, we say that even if Thabit had hit his wife, she did not wish to divorce him because of that. Rather, she hated him not for his devoutness or mannerism, but because of his hideousness as in the other narration. This is exactly what Ibn Hajar concluded: “it apparent that he did not do anything to her that required her to complain about. But from the narration of Nisaie, it seems that he broke her hand so it can be said that she felt that he is ill-mannered, but she did not reprimand him for that but rather for another reason [his hideousness]. Similarly, in the story of Habeeba bint Sahl as narrated by Abu Dawood that he hit her and broke her hand. However, neither woman complained about that. It is clear that the complain was about something else, which is his hideous appearance as reported by Ibn Majah”[7]. If we accept that she asked for divorce because he hit her, then we must ignore the other narrations which say that she doesn’t hate him for his devoutness or mannerism and that she hates him for his hideousness and because of this reason she wanted to spit in his hideous face.
          
2. What is said that the woman came to the Prophet peace be upon him at dawn, which means that she came begging for help in the early hours of morning is laughable and has no value! Because the early morning time in the time of the Prophet peace be upon him was a common time for people. It could be that she was eager to find the Prophet peace be upon him and not miss him. Furthermore, this issue has no impact on the ruling because it is of a significant factor as established by the rules for establishing reasoning in the Principles of Jurisprudence. If this had happened at noon time or afternoon, would it change the ruling at all? This is ignorance and wrangling.
    
3. It is said that Khul’ is not permissible because of reports that discourage the woman from doing it:
   1. As in the Hadith of Termithie reported by Thawban: “the scent of paradise is forbidden for any woman who asks her husband for a divorce”. This Hadith is specified by other narrations which state “without an offence” meaning for no reason like hate or the like. If hate and dislike is not a reason, then the Hadiths of the Prophet peace be upon him are contrary to each other, because he says in one Hadith that a woman cannot ask for divorce, then he agrees to legally divorce Thabit’s wife after she clearly states (not hints): “I do not reprimand him for his mannerism or devoutness”!!
   2. The Hadith of Tirmithie: “Those who women extort and get Khul’ are the hypocrites” is a weak Hadith. In fact, the narration chain is disconnected based on the majority opinion of Muhadditheen, because Thuad bin ‘Alba is in the chain of narration and he is classified as weak. The chain also contained Laith who is Matrook; meaning his Hadith is not accepted, and Abi Khattab who is Majhool; meaning unknown. So the Hadith is narrated by a Matrook who’s not an authority. Thus it is weak and cannot overrule stronger Hadiths.