Khula in Islam: Procedure, Conditions & Issue

Understanding Khula: A Woman’s Right to Dissolve Marriage in Islam

The Procedure of Khula and Some of Its Issues

Nikah is the marriage contract between a husband and wife. Whenever the husband has a legitimate reason to separate from his wife, he can divorce her and end the marriage contract. Alternatively, if the wife wishes to separate from the husband due to a legitimate reason, she can use the right of khula to dissolve the marriage. In other words, Islam has granted both spouses the right to separate from each other for valid reasons. In the following lines, we will discuss the procedure of khula, which is the wife’s right, and some related issues.

Meaning of Khula:

Husband and wife are described as being like a garment for each other, and the term khula refers to removing or taking off. In Islamic legal terminology, khula means that the wife demands the dissolution of the marriage, and the husband agrees to release her from the marriage in exchange for compensation. The compensation can either be the full dowry (mahr) or a lesser amount, which the husband agrees to, and in return, the wife is freed from the marriage contract. This is called khula. Since khula involves a compensation or ransom for the separation, it is also referred to as fida (ransom) or divorce for compensation (divorce for an exchange), but it is not considered a regular divorce.

Conditions for the Validity of Khula:

1. Khula is a right of the wife, and only she can demand it. No one else can exercise this right on her behalf.
2. For khula to be valid, there must be compensation, and this compensation must be determined and known. This means that the wife should offer either the full mahr or a lesser amount, which the husband agrees to, in exchange for the dissolution of the marriage. Both the compensation and the agreement on it must be clearly specified. Allah’s command about this is:

فَإِنْ خِفْتُمْ أَلَّا يُقِيما حُدُودَ اللَّهِ فَلا جُناحَ عَلَيْهِما فِيمَا افْتَدَتْ بِهِ (البقرة: 229)

Translation: If you fear that they will not be able to keep the limits set by Allah, then there is no blame on both of them if she gives something to free herself.

A further proof from the Sunnah is the narration from Ibn Abbas (RA) who reported:

أَنَّ امْرَأَةَ ثَابِتِ بْنِ قَيْسٍ أَتَتِ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ، فَقَالَتْ: يَا رَسُولَ اللَّهِ، ثَابِتُ بْنُ قَيْسٍ مَا أَعْتِبُ عَلَيْهِ فِي خُلُقٍ وَلَا دِينٍ، وَلَكِنِّي أَكْرَهُ الْكُفْرَ فِي الْإِسْلَامِ، فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: أَتَرُدِّينَ عَلَيْهِ حَدِيقَتَهُ؟ قَالَتْ: نَعَمْ، قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: اقْبَلِ الْحَدِيقَةَ، وَطَلِّقْهَا تَطْلِيقَةً (صحیح البخاری:5273)

Translation: The wife of Thabit bin Qays (RA) came to the Prophet (PBUH) and said, “O Messenger of Allah, I do not complain about Thabit’s character or religion, but I dislike disbelief in Islam (because I cannot fulfill the marital duties).” The Prophet (PBUH) said to her, “Will you return the garden (that he gave you as mahr)?” She replied, “Yes.” The Prophet (PBUH) said, “Take the garden and give him the divorce.”

Here, both Allah’s and the Prophet’s words clearly indicate that separation can be obtained by offering compensation in return. Now, an important issue arises: If there is no compensation in khula, is it still valid? Most scholars agree that compensation is necessary for khula to take place. Without it, khula does not occur, and this view seems to be correct. Therefore, in the case of khula, the wife should give something in return, although it is not necessary to return the full mahr. A small item can suffice, and even if the husband forgives the compensation, the khula will still be valid. It is important to note that it is wrong for the husband to demand more than the mahr as compensation. In the story of Thabit bin Qays, the Prophet (PBUH) only instructed the wife to return the mahr, not to exceed it. Additionally, in Ibn Majah, it is narrated that the Prophet (PBUH) told him to accept the garden as mahr and not to ask for more:

أَنْ يَأْخُذَ مِنْهَا حَدِيقَتَهُ وَلَا يَزْدَادَ (صحيح ابن ماجه:1686)

Translation: “He should take his garden from her and not ask for more.”

Thus, in khula, both parties make demands: the wife demands separation, and the husband demands compensation. Once both parties fulfill their respective demands, khula occurs. It may sometimes happen that the husband does not demand compensation, but the wife offers something in return, and this will make the khula valid.

A condition for the validity of khula is also the principle of itihad majlis (unity of the session), meaning that the offer and acceptance for khula must take place in the same session. The offer (ijab) is made by the husband and the acceptance (qubool) by the wife. For example, if the husband says, “I give you khula for one thousand rupees,” and the wife responds, “I accept,” then the khula will occur. However, if the husband makes the offer in the morning and the wife accepts it in a different session, such as in the evening or at a later time, then khula will not take place because the wife might change her mind and not accept the khula. This issue is agreed upon by the four Imams (Hanafi, Maliki, Shafi’i, and Hanbali) as reported. (See: Al-Mawsu’ah Al-Fiqhiyah: 1/209)

• It is permissible for either the husband or the wife, or both spouses, to appoint a representative (wakil) for the process of khula. This representation is valid only if the concerned party has actually appointed someone as a representative. Scholars have reached a consensus on the permissibility of this type of representation. (For further details, one can refer to Al-Mughni by Ibn Qudamah).
• There is no need for specific words for the validity of khula. Any phrase that conveys the idea of separation, such as divorce, khula, freedom, release, or similar expressions, will result in khula.

Reasons for Khula:

Khula is sought by the wife, and for her to demand it, she must have a legitimate reason. Such reasons include:

1. Dislike for the Husband: If the wife dislikes her husband in such a way that she fears she might fall into ingratitude, as the wife of Thabit bin Qays (RA) felt, then she can seek khula. We know that ingratitude towards the husband can lead to punishment in the Hereafter, and for this reason, the woman can request khula.
2. Lack of Love from the Husband: If the husband no longer loves her, which is problematic because marriage in Islam is based on mutual love and affection.
3. Failure to Provide Maintenance: If the husband fails to provide for her basic needs (food, clothing, etc.).
4. Physical or Mental Infirmities: If the husband is impotent (unable to fulfill his marital duties) or has a severe illness.
5. Abuse or Oppression: If the husband is abusive, cruel, or treats her unjustly.
6. Bad Character: If the husband is immoral, such as being involved in drinking alcohol, committing adultery, or having poor character.

In such situations, the wife has the right to seek khula from her husband.

However, khula should be based on a legitimate reason. If the wife seeks khula without a valid reason, it will still be valid, but she will be sinful. As reported by Thawban (RA), the Messenger of Allah (PBUH) said:

أَيُّمَا امْرَأَةٍ سَأَلَتْ زَوْجَهَا طَلَاقًا فِي غَيْرِ مَا بَأْسٍ، فَحَرَامٌ عَلَيْهَا رَائِحَةُ الْجَنَّةِ (صحيح أبي داود:2226)

Translation: Any woman who asks her husband for a divorce without any hardship that compels her to do so, the fragrance of Paradise will be forbidden for her.

This hadith refers to khula because the wife here is asking for a divorce from her husband. Imam Abu Dawood has placed this hadith under the chapter titled “Bab Fi Al-Khula” (Chapter on Khula). In another narration, such a woman is described as a hypocrite. Thawban (RA) narrates that the Messenger of Allah (PBUH) said:

المختلعاتُ هنَّ المنافقاتُ (صحيح الترمذي:1186)

Translation: The women who seek khula are hypocrites (those who seek khula without a valid reason).

Method of Khula:

1. There is no need to go to a judge, qazi, or mufti for khula; this matter can be settled directly between the husband and wife at home. When a wife sees a religious flaw in her husband and finds it difficult to live with him, she can ask her husband for divorce. If he voluntarily gives the divorce with the intention of divorce, then the woman will be separated from him through talaq. However, if he does not give the divorce, then she can request khula in exchange for compensation (such as the mahr or anything else mutually agreed upon). The husband should, if his wife does not want to stay with him for a legitimate religious reason and is asking for khula, take the mahr or any compensation (equal to or less than the mahr) and grant khula. The form of khula would be that the husband, after receiving the compensation, would say to his wife, “I release you in exchange for such and such property” or “I give you khula,” and the wife would say, “I accept.” In this case, the khula will take effect, and the matter must be resolved in the same session. If the offer and acceptance are in separate sessions, khula will not take place.
2. Similarly, at the wife’s request, if the husband accepts compensation and says, “I free you,” “I divorce you,” or “I give you khula,” khula will occur. There is no need for specific words to declare khula; any of these phrases can be used to establish it.

In the case of khula involving Thabit bin Qays, there are references to three types of women: Jamila bint Abdullah bin Abi, Maryam al-Maghaliyah, and Habibah bint Sahl. These could be separate incidents, and in the various hadiths concerning them, different formulations for khula are mentioned.

• In one hadith, the method of khula is described in which the Prophet (PBUH) ordered Thabit’s wife to return the garden given to her as mahr and told the husband: اقْبَلِ الْحَدِيقَةَ وَطَلِّقْهَا تَطْلِيقَةً (Accept the garden and divorce her). This was the khula.
• In another hadith, the Prophet (PBUH) told the wife to return the garden and instructed the husband to separate from her. The hadith states:
  فَتَرُدِّينَ عَلَيْهِ حَدِيقَتَهُ؟ فَقَالَتْ: نَعَمْ، فَرَدَّتْ عَلَيْهِ، وَأَمَرَهُ فَفَارَقَهَا (Sahih al-Bukhari: 5276)
  Translation: “Can you return his garden (which he gave as mahr)?” She said, “Yes,” so she returned it, and at the Prophet’s (PBUH) command, Thabit (RA) separated from her.

In another narration:
قَالَ: فَإِنِّي أَصْدَقْتُهَا حَدِيقَتَيْنِ، وَهُمَا بِيَدِهَا، فَقَالَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: خُذْهُمَا فَفَارِقْهَا، فَفَعَلَ (Sahih Abu Dawood: 2228)
Translation: Thabit said, “I gave her two gardens as mahr, and they are still in her possession.” The Prophet (PBUH) said, “Take them and separate from her,” and so he did.

• Some narrations mention that the Prophet (PBUH) separated the couple by returning the mahr, much like a court ruling. As narrated by Ibn Majah:
  فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: أَتَرُدِّينَ عَلَيْهِ حَدِيقَتَهُ؟ قَالَتْ: نَعَمْ، فَرَدَّتْ عَلَيْهِ حَدِيقَتَهُ، قَالَ: فَفَرَّقَ بَيْنَهُمَا رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ (Ibn Majah: 2057)
  Translation: The Messenger of Allah (PBUH) said, “Will you return his garden?” She replied, “Yes,” and returned the garden to him. Then, the Prophet (PBUH) separated them.

This hadith was considered weak by Sheikh Al-Albani. The narration from Al-Bayhaqi reads:
أَتَرُدِّينَ عَلَيْهِ حَدِيقَتَهُ؟ قَالَتْ: نَعَمْ، فَأَمَرَهَا أَنْ تَرُدَّ عَلَيْهِ فَفَرَّقَ بَيْنَهُمَا (Al-Sunan Al-Kubra by Al-Bayhaqi: 14840)
Translation: “Will you return his garden?” She said, “Yes,” and he ordered her to return it, after which he separated them.

• In some narrations, it is stated that in khula, the wife should return whatever she received and then be separated. In the narration from Sunan An-Nasa’i, when Jamila bint Abdullah bint Abi came to complain about her husband, the Prophet (PBUH) told Thabit:
  خُذْ الَّذِي لَهَا عَلَيْكَ وَخَلِّ سَبِيلَهَا (Sahih an-Nasa’i: 3497)
  Translation: “Take what you owe her and free her.” He replied, “Yes,” and the Prophet (PBUH) instructed her to wait for one menstrual cycle before returning to her family.

This hadith indicates that a woman can spend one menstrual cycle in her husband’s house as her iddah and then return to her family, though it is not necessary; she may also observe the iddah at her family’s home.

In any case, for khula, the husband can take compensation and say any freeing words to release the wife, and khula will be valid, as evidenced by various hadiths.

When khula is to be done mutually at home, it is preferable to have two just witnesses, as disputes sometimes arise in such matters. However, khula will still be valid without witnesses. It is better to document it in writing to preserve evidence, but even verbal khula will be valid.

3. When the husband is neither willing to give a divorce nor to grant khula, it becomes a problem for the wife, but there is a solution to this as well. In such a case, the wife can file a khula case in a Sharia court and obtain khula through the court. The court will summon both the husband and wife and first attempt reconciliation. If reconciliation is not possible and there is a valid reason for separation between the spouses, the court will ask the husband to give a divorce. If the husband does not agree to divorce, then the court will grant khula in exchange for compensation.

When the husband neither gives a divorce nor agrees to khula, such a person is usually not present in court. What should the court do in this case? The court should try to inform the husband in every possible way and give him an adequate time to appear in court, even informing him several times, so that later on, the wife or the court cannot be blamed. If, after repeated notifications and sufficient time, the husband still does not appear in court while the wife has a valid religious reason for separation, the court, in the absence of the husband’s presence and consent, can annul the marriage so that the wife is freed from this man.

4. In many places, there are no Sharia courts or Darul Qaza (Islamic courts), so in such areas, the khula case should not be taken to a non-Islamic court because it will be decided according to the democratic constitution, and this court has no connection to Islamic Sharia.

The question then arises: where should the woman go for khula? In this case, the woman should approach a reputable scholar who can call for a panchayat (an assembly of elders) with both parties present. Alternatively, if there is a credible Islamic institution or religious center nearby, the responsible authorities there can handle the khula. This panchayat or institution will perform the process of khula in a manner similar to a court’s proceedings. In the first stage, the attempt should be made to bring the husband into the assembly, where efforts will be made to either reconcile, facilitate a divorce, or grant khula. If, after multiple notifications and efforts, the husband still does not appear, then without his consent, the marriage can be annulled. This way, the woman’s marriage will be annulled.

In summary, when a woman, due to a religious reason, does not want to remain with her husband, she has two options for separation: one is divorce, which is the husband’s right, allowing the woman to be freed through divorce, and the second is khula, which is the woman’s right. She can obtain khula by offering compensation to her husband or through the court or panchayat to annul her marriage and obtain freedom from the husband.

Is Khula Divorce or Annulment?

There is a difference of opinion among scholars regarding whether khula is divorce or annulment of the marriage. The majority and stronger position is that khula is the annulment of the marriage. The evidence for this is that Allah (SWT) mentions khula in Surah Al-Baqarah, verse 129, after the mention of two divorces, and then in the following verse, the third divorce is mentioned. If khula were considered divorce, the third divorce would need to be treated as the fourth divorce, which is not agreed upon. Therefore, khula is not considered a divorce but an annulment, and for this reason, there are several differences between divorce and khula. For example, the iddah (waiting period) after divorce is three menstrual cycles, while the iddah after khula is one menstrual cycle. Also, in the case of the first and second divorces, there is an option for reconciliation, whereas in khula, reconciliation is not allowed.

Iddah After Khula:

• Whether khula is agreed upon between the husband and wife at home or through the court or panchayat (reconciliation), in all these cases, the woman’s iddah is one menstrual cycle. Once she has experienced one menstrual cycle and becomes pure from it, the iddah is considered complete. Rabi’ah bint Mu’awadh bin Afra’ (may Allah be pleased with her) said:
  أنَّها اختلعت على عَهدِ النَّبيِّ صلى الله عليه وسلم فأمرَها النَّبيُّ صلى الله عليه وسلم، أو أمرت أن تعتدَّ بحيضةٍ (صحيح الترمذي:1185)
  
  Translation: She took khula in the time of the Prophet (peace be upon him), and the Prophet (peace be upon him) commanded her (or it was commanded) that she observe one menstrual cycle for her iddah.
• Similarly, there is a narration from Abu Dawood:
  عن ابنِ عمرَ قال : عدَّةُ المختلعةِ حَيْضَةٌ (صحيح أبي داود:2230)
  Translation: Abdullah bin Umar (may Allah be pleased with him) narrated that the iddah for a woman who has undergone khula is one menstrual cycle.
  Sheikh al-Albani has stated that this narration is authentic as reported by Ibn Umar (may Allah be pleased with him).
• Those who consider khula to be a divorce and say that the iddah is three menstrual cycles are mistaken. Khula is not a divorce, and therefore, it does not have the three-month iddah like divorce. A woman who has undergone khula observes one menstrual cycle of iddah. The reason for the three iddah cycles in divorce is that there might be a possibility of the husband taking her back, but this is not the case in khula, as reconciliation is not allowed after khula. One menstrual cycle is simply for the clearing of the womb.
• Khula can take place during menstruation, pregnancy, or during a period of purity when sexual relations have not occurred. If khula takes place during menstruation, the current menstrual cycle will not count as the iddah but the next menstrual cycle will count. In case of pregnancy, the iddah will be until the woman gives birth.
• It is not obligatory for a woman to observe her iddah in the house of her former husband. She can spend her iddah anywhere, even in her husband’s house, but since khula results in estrangement between the couple, she should avoid seclusion with him and maintain the hijab. If the woman is pregnant, her husband is required to provide for her accommodation and maintenance until the delivery.
• The woman who has undergone khula should reside in her own home during the iddah and should not go outside unnecessarily. However, she can leave the house if there is a valid reason.

Return and Marriage After Khula:

• Khula results in the separation between the husband and wife, which is considered bainunah sughra (minor separation). This means that the husband cannot reconcile with her after khula. However, if the husband wishes to remarry the same woman, he can do so after the completion of her iddah by marrying her with a new contract and a new mahr (dowry). This is similar to how a husband can marry his wife after the iddah of the first or second divorce has ended by initiating a new marriage contract and new dowry. Bainunah kubra (major separation) happens after the third divorce, where there is no reconciliation and the couple cannot marry again unless the woman marries another man and is divorced by him.

Delegated Divorce (Tafweez):

• It is commonly observed that when a husband wants to separate from his wife, he gives her a divorce. However, when a woman wants to separate from her husband for a valid Islamic reason, the husband may cause her distress, not allowing her to live peacefully in the house, not giving her a divorce, nor agreeing to grant khula. To address such situations, a new practice of delegated divorce (Tafweez) has emerged in society. Tafweez means that during the marriage contract, the husband delegates the right of divorce to his wife. This means that just as the husband can divorce his wife, the wife can also divorce her husband. Using this delegated divorce, a woman can free herself from the marriage whenever she wishes by giving her husband a divorce.
• However, this concept of delegated divorce is a new innovation in the practice of divorce, and it is not valid. Divorce is a right exclusive to the husband, and khula is a right of the woman. Therefore, Muslims should not adopt the practice of delegated divorce. If a woman is wrongfully or forcibly given the power of divorce (Tafweez), it will not be valid, and she will not be able to separate from her husband using this method.

Hanafi View on Khula:

Since the majority of our society follows the Hanafi school, and there are several issues related to khula in their tradition that are not backed by evidence, it is important to understand them.

1. Khula as Divorce: The Hanafi school considers khula to be a form of divorce, whereas the correct view is that khula is not divorce but rather a fasakh (annulment of marriage). Therefore, the ruling of divorce does not apply to a woman who undergoes khula. The ruling of annulment of marriage applies instead.
2. Iddah of Khula: The Hanafi school considers the iddah of khula to be three menstrual cycles, while the correct view is that the iddah of khula is one menstrual cycle, as previously proven.
3. Husband’s Consent in Khula: The Hanafi school does not recognize khula without the husband’s consent, whether it is through the court or panchayat. However, the correct view is that in certain circumstances, khula or annulment of marriage can occur without the husband’s consent. Sometimes, the husband may oppress his wife to such an extent that not only does he fail to maintain her, but he does not even fulfill his marital duties or provide for her financially. In such cases, where the husband neither grants divorce nor agrees to khula, the wife can resort to the court or panchayat to annul the marriage without the husband’s consent and free herself from this oppressive man.

Summary of the Discussion:

At the conclusion of this discussion, I will summarize a few important and key points regarding khula to clarify the essence and the main objective of this topic.

• Khula refers to the process where the wife is separated from the husband by providing compensation to him.
• Khula is the wife’s right. When the wife needs to separate from her husband for a valid Islamic reason, she can give compensation and separate from him through khula.
• When the wife provides compensation, the husband freeing her through words such as divorce, khula, annulment, separation, or freedom, will all be considered khula.
• A woman will only demand khula when it is difficult to continue the marriage due to a valid Islamic reason, but not for minor inconveniences or difficulties. Instead, she should practice patience and continue her life with the same husband, as life is a combination of both ease and hardship, and no husband will be free from challenges.
• Ideally, khula should take place with the mutual consent of both spouses, but in unavoidable situations where the wife is justified in seeking separation and the husband refuses to grant divorce or khula, the marriage can be annulled through the court or panchayat after proper investigation and with the husband being informed. This can be done even without his consent.
• After khula, a woman should spend her iddah in her own house because the marital relationship has ended and there is no possibility of reconciliation. However, she can spend the iddah in her husband’s house as well. The iddah after khula is one menstrual cycle. Once she has her menstrual cycle and becomes pure, the iddah ends.
• There is no possibility of reconciliation during the iddah of khula, but if both spouses wish to reunite later, they can remarry after the iddah period, with a new marriage contract and new dowry. It should be noted that this marriage is a valid and independent marriage, and it must include the guardian, dowry, two just witnesses, and public announcement, just like the first marriage.
• If a man has already given two divorces to his wife and then khula occurs, the marriage can still be renewed after the iddah period, because khula is not considered a divorce, but rather a separation and annulment of the marriage.
• During the iddah of khula, the husband is not obliged to provide maintenance or accommodation. However, if the woman is pregnant, the husband must provide both maintenance and accommodation until the child is born.
• The practice of Tafweez (delegated divorce) is a new innovation, a form of bid’ah, that should be eradicated from the Muslim community. Alhamdulillah, under Islamic law, a woman has the full right to gain freedom from her husband due to valid reasons, and there is no need for any self-made methods. In fact, such methods are not permissible.