❖ Khulʿ Requires the Consent of Both Husband and Wife
Written by: ʿImrān Ayyūb Lāhorī
❀ The Qur’anic Guidance
فَلَا جُنَاحَ عَلَيْهِمَا أَن يُصْلِحَا بَيْنَهُمَا صُلْحًا ۚ وَالصُّلْحُ خَيْرٌ
[النِّسَاء: 128]
"There is no sin upon them if they reconcile between themselves with mutual agreement, and reconciliation is better."
This shows that khulʿ is based on mutual agreement.
❀ Prophetic Practice
- The Prophet ﷺ facilitated separation between Thābit ibn Qays رضي الله عنه and his wife, instructing him:
اقبل الحديقة وطلقها
"Accept the garden and divorce her."
[Bukhārī: 5273]
- The Qur’an also mentions arbitration if reconciliation fails:
وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا…
[النِّسَاء: 35]
If reconciliation is not achieved, according to the majority of scholars, the arbitrators have the right to separate the couple (fasakh al-nikāḥ).
[Fatḥ al-Qadīr 1/363, Tafsīr al-Lubāb 6/368, Tafsīr al-Rāzī 10/75]
❀ Khulʿ is Fasakh, Not Ṭalāq
- In Sūrah al-Baqarah (229–230), after mentioning divorce, Allah mentions iftidāʾ (ransom through khulʿ) separately, proving that khulʿ is not ṭalāq but fasakh.
- Example: Ḥabībah bint Sahl رضي الله عنها gave back what her husband had given her, and the Prophet ﷺ told Thābit: "Take it back." She then returned to her family, not remaining in her husband’s home for ʿiddah, which shows khulʿ is fasakh, not ṭalāq. [Muwaṭṭaʾ 2/564]
- ʿIddah of khulʿ is one menstrual cycle, unlike divorce, which requires three.
- In khulʿ, the husband may take back what he gave as mahr, whereas in divorce he may not.
- In khulʿ, the husband has no right of return (rujūʿ), unlike divorce.
- The Prophet ﷺ instructed Thābit to give khulʿ without asking whether his wife was menstruating or not, which proves khulʿ is not ṭalāq.
Ibn Taymiyyah رحمه الله: Khulʿ is fasakh of marriage.
[Fatāwā 3/31–35]
Ibn al-Qayyim رحمه الله: No Companion ever held khulʿ to be ṭalāq. He also noted that three rulings of ṭalāq (rujūʿ, count of three divorces, and ʿiddah of three cycles) are not found in khulʿ.
[Zād al-Maʿād 5/197]
Al-Khaṭṭābī رحمه الله: Ibn ʿAbbās رضي الله عنهما reasoned that khulʿ is not ṭalāq from the verse الطَّلَاقُ مَرَّتَانِ.
[Maʿālim al-Sunan 3/255]
Al-Albānī رحمه الله: He too held this view.
[al-Taʿlīqāt al-Raḍiyyah 2/273]
❀ Difference Among Scholars
- Majority (Mālik, Abū Ḥanīfah, many Companions & Tābiʿīn): Khulʿ is a form of ṭalāq.
- Imām Aḥmad, Ibn ʿAbbās, Ṭāwūs, Isḥāq, Abū Thawr, Ibn al-Mundhir, and one narration from al-Shāfiʿī: Khulʿ is fasakh.
[Tafsīr al-Lubāb 4/142, al-Umm 5/114, Badāʾiʿ al-Ṣanāʾiʿ 3/151, Nayl al-Awṭār 4/344, al-Mughnī 11/250]
The use of the word ṭallaqahā ("divorce her") in Bukhārī (5273) is understood in its linguistic sense ("separate her"), not in the technical fiqh sense of ṭalāq.
❀ ʿIddah of Khulʿ
- The Prophet ﷺ instructed the wife of Thābit ibn Qays to observe one menstrual cycle as ʿiddah.
[Ṣaḥīḥ Tirmidhī: 936, Abū Dāwūd: 2229, Tirmidhī: 1185] - Same ruling reported from Rabīʿ bint Muʿawwidh رضي الله عنها.
[Ṣaḥīḥ Tirmidhī: 945, Ibn Mājah: 2085, Nasāʾī: 3498] - Ibn ʿUmar رضي الله عنهما: "The ʿiddah of the woman who takes khulʿ is one menstrual cycle."
[Ṣaḥīḥ: Abū Dāwūd: 2230]
Ibn al-Qayyim رحمه الله: He confirmed that this is the correct ʿiddah.
[Iʿlām al-Muwaqqiʿīn 2/88]
