❖ Unilateral Khulʿ and the Sharʿī Status of Re-marriage
Source: Fatāwā Muḥammadiyyah, Volume 1, Page 847
❖ Question:
It has been eight years since our marriage. After two years, due to domestic disputes, my wife went back to her parents’ home. Later, her family filed a case in court, but I never received any summons or notice regarding this matter. I did not divorce her verbally or in writing.
The court, without my knowledge or participation, passed a unilateral decree of khulʿ.
Now, after six years, my wife wishes to return.
My question is:
Can we resume our marital life as husband and wife, or do we need to perform a new marriage contract (nikāḥ)?
Please guide us in light of the Qur’ān and Sunnah.
❖ Answer:
Al-ḥamdu lillāh, waṣ-ṣalātu wa-s-salāmu ʿalā Rasūlillāh. Amā baʿd:
If the question is truthful, and it is indeed the case that Mr. Ehsān al-Ḥaqq, the husband, neither issued a verbal nor written divorce, and neither he nor any of his relatives were informed through notice or summons regarding the khulʿ proceedings, and the court passed a unilateral decree of khulʿ in his complete absence, then such a khulʿ is not valid in Sharīʿah.
❖ Sharʿī Conditions of Khulʿ:
A valid khulʿ is that the wife frees herself from the marriage bond by returning the mahr or other financial compensation to her husband. This is the definition upheld by classical scholars and jurists.
❖ Definitions of Khulʿ:
➊ Shaykh Muḥammad Sābiq al-Miṣrī writes:
"It is called fidāʾ (ransom) because the woman ransoms herself by offering wealth to her husband to be released from the marriage contract."
(Fiqh al-Sunnah, Vol. 2, p. 253)
➋ Shaykh Abū Bakr al-Jazāʾirī states:
"When a woman dislikes living with her husband, she frees herself from him by offering wealth in compensation for what he spent on her marriage. This process is known as khulʿ."
(Aysar al-Tafāsīr, Vol. 1, p. 215)
➌ ʿInāyah Sharḥ al-Hidāyah states:
"In Sharīʿah, khulʿ refers to the husband receiving wealth from the wife in return for releasing her from the bond of marriage using the word 'khulʿ'."
(Hāshiyah al-Hidāyah, Bāb al-Khulʿ, Vol. 2, p. 404)
➍ According to Fuqahāʾ (Jurists):
"Khulʿ is when a man separates from his wife in return for compensation."
(Fiqh al-Sunnah, Vol. 2, p. 253)
➎ Abū al-Yūlīs Yasuʿī defines:
"To grant divorce to one's wife in exchange for wealth."
(Al-Munjid, under ‘Khulʿ’, p. 291)
➏ Minhāj al-Muslim mentions:
"If a woman dislikes her husband for some reason and returns the mahr or similar wealth to him to attain separation, this is called khulʿ."
(p. 646)
❖ Summary of the Definitions:
All of the above definitions indicate that returning the mahr or compensation to the husband is a fundamental condition for a valid khulʿ.
If the wife does not offer any compensation, then the khulʿ is not valid in Sharīʿah.
Shaykh Muḥammad Sābiq further writes:
"As mentioned earlier, khulʿ is the annulment of marriage in return for financial compensation. Compensation is an essential component of khulʿ. If no compensation is given, then khulʿ does not occur."
(Fiqh al-Sunnah, Vol. 2, p. 254)
❖ Sharʿī Ruling for the Case:
Based on the above principle, if the court unilaterally issued a khulʿ decree without notifying the husband (Ehsān al-Ḥaqq), and no financial compensation was offered by the wife, then this khulʿ is not valid according to Sharīʿah.
Hence, the marriage remains intact and valid.
❖ However, as a Cautious Step:
It is preferable to accept the court’s decision and perform a new marriage contract (nikāḥ) according to Sharʿī procedure:
✔ In the presence of two witnesses
✔ With the permission of the walī (guardian)
✔ And by stipulating a new mahr (dower)
Since khulʿ, once valid, terminates the marriage and removes the husband's right to reconcile, the only way to restore the relationship is through a new nikāḥ — if the woman consents.
"It is permissible for the husband to marry her again with her consent during her ʿiddah by conducting a new marriage contract."
(Fiqh al-Sunnah, Vol. 2, p. 258; Minhāj al-Muslim by Shaykh Abū Bakr al-Jābir al-Jazāʾirī, p. 467)
❖ Summary:
✔ Based on the question, the khulʿ was unilateral and without compensation, hence invalid according to Sharīʿah.
✔ Therefore, the nikāḥ is still intact.
✔ However, to avoid complications, it is recommended to perform a new nikāḥ with new mahr, witnesses, and the permission of the walī.
Note:
The Muftī is not responsible for any legal shortcomings or judicial implications.
هٰذا ما عندي، والله أعلم بالصواب
