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Khula’ because the husband is in jail

Fatwaa ID: 2202

Question:
Salaam brother.

I’m asking for some help with a question on behalf of a close family member.

The husband past relationship has caused him issue which has given him 8 month prison sentence.

Whilst on bail he got married to his current wife. He never knew he would ever go to prison as he paid back all the money owed in the fraud activity.

The wife now wants a divorce but wants the husband to give it as she feels betrayed.

The husband is now truly sorry and wants counselling and meditation when his out of prison and work on his marriage to make a better life.

Can the wife give Kullah?

The husband will be out in September 2024. There is no way of counselling till this date.

Answer:
In the Name of Allaah, the Most Gracious, the Most Merciful.
As-salaamu ‘alaykum wa-rahmatullaahi wa-barakaatuh.

At the outset, it is important to understand that a woman does not have the authority of issuing a talaaq nor can she give a khula’. The term khula’ is often misunderstood or used incorrectly. Khula’ refers to the wife requesting the husband for divorce in lieu of a monetary or material amount that she will pay him, as mutually agreed by both sides. This can also be referred to as her buying her divorce from her husband. The husband’s acceptance is necessary for the validity of the khula’. If he does not accept, then the khula’ will not take place and she will remain his wife.

In the enquired situation, she may request the husband for a talaaq or a khula’, but if he does not agree to it then she will remain in his marriage. She cannot simply walk out or leave nor can she herself give the talaaq or khula’. The only other way out of the marriage is through a faskh/annulment from a reputable Muslim judicial board should they find valid grounds in her case. A divorce decree from a civil court would not terminate the nikaah.

We advise the sister to exercise patience and give her husband a chance. He is ready to consider counseling and mediation. He is trying to make things work. She should cooperate with him. It may be difficult but she would be rewarded for this.

And Allaah Ta’aala knows best.
Mufti Muajul I. Chowdhury
Darul Iftaa New York
https://askthemufti.us/

08/25/1445 AH – 03/06/2024 CE | AMG3-4423

وصل اللهم وسلم وبارك على سيدنا محمد وعلى ءاله وصحبه أجمعين

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