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Khula valid or invalid

Fatwaa ID: 2084

Question:
In the Name of Allaah, the Most Gracious, the Most Merciful.
As-salaamu ‘alaykum wa-rahmatullaahi wa-barakaatuh.
What is value of khulaa from court from shariah point of view.
I took khulla from court in 2010 , my ex husband sent one fatwa from Karachi that this Nikah is still valid because husband didn’t give Divorce.
My khulla was based on valid reasons ,
He is not paying Children’s expenses, is he not accountable for that?
Please guide me
Jazakum Allah Khairan kaseera

Clarification: The term “Khulla” used when wife don’t want to live with him and husband don’t want to give divorce then woman can apply for separation through family court. And court issues decree for separation.

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

We take note of the details of your query. There are various issues in your question.

  1. Khula’ is not what you have mentioned above. This word is commonly misused. Khula’ refers to the wife requesting the husband for divorce in lieu of a monetary or material amount, as mutually agreed by both sides. The husband’s acceptance is necessary for the validity of the khula’. If he does not accept, then the khula’ will not take place.
  2. Perhaps you are referring to a faskh, an annulment of the nikaah. This refers to where a wife refers the case to a Shari’ah court or Muslim judicial board and applies for an annulment of her nikaah. The qaadhi or those in his place will preside over the case and issue a verdict based on the validity of the grounds of her claims. If they find valid grounds to annul the marriage, they will annul the marriage. Merely not wanting to live with the husband is not a valid ground. Furthermore, a civil or secular court does not qualify as a Shari’ah court or Muslim judicial board. The rulings of a civil court will not effect talaaq by default, especially in the case where the husband does not agree.
  3. A court or civil divorce does not constitute an Islamic divorce (talaaq). The judge presides over the rulings and implications of a civil divorce. He does not have jurisdiction over a Shar’iah divorce (talaaq) and neither is that his mandate. If the husband signs the civil divorce documents and also intends a Shari’ah talaaq, then only will talaaq take place. If he does not intend talaaq while signing the documents or does not utter any words of talaaq, then talaaq will not take place even if the husband initiates the divorce proceedings. The nikaah will remain valid despite the legal divorce decree. For talaaq to be effective in such a case, the husband must issue a talaaq to his wife, verbally or in writing.

In the enquired situation, it is not clear whether you went to a Shari’ah court or a secular court. If it was the latter, then the divorce decree is invalid and you are still married to your husband. If you went to a reputable Shari’ah court and they issued a faskh/annulment decree, then such a ruling would be binding and the nikaah would be terminated upon issuance of the decree. We advise you to be Allaah-conscious.

As for your question regarding children’s expenses and maintenance, then that is binding upon the father, for sons until they are able to earn a livable income, and for the daughters until they get married. This includes food, shelter and other essentials. The father is responsible and accountable for this. However, it should be noted that if the children have wealth, then the father may use that to provide for them. Should he fail to provide, he may be taken to court. When taking him to court, the mother may only demand what is sufficient and reasonable. Anything more will not be permissible. If the court does issue a decree for more than the sufficient, it must be returned to the father.

Both parties must be reminded that Allaah Ta’aala is al-‘Aleem and al-Khabeer, the All-Knowing and the All-Aware. Nothing can be hidden from him. Everyone is accountable to Him. He is also al-‘Adl, the Just. He will ensure that justice is served, either in this world or in the next.

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

07/20/1445 AH – 02/01/2024 CE | AML3-3886

وصل اللهم وسلم وبارك على سيدنا محمد وعلى ءاله وصحبه أجمعين

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