Ad-Durur Al-Bahiyah fi Masaa’il Al-Fiqhiyyah – The Book of Divorce (Part 2)

Chapter 1: On Al-Khula’ (Separation of a couple with compensation for husband)

Al-Khula is when the husband parts with his wife at her discretion. In this case she does not return to him via mere retrieval. Parting is permissible regardless of the amount of compensation as long as the amount does not exceed the original jointure.[1] Consent is obligatory between the two over the parting.[2] However, it can be undertaken by the ruler parting between them and it is a Faskh (i.e. a cancellation of marriage). The period of this separation is one menstruation.

Chapter 2: On Al-Iyla (i.e. husband’s vow to cease any relation with his wife)

It means the husband’s vow not to have any relation with any or some of his wives (i.e. not to have sexual relation with her or them). If the husband specified in his vow a period that is less than four months, then he must keep away from his wife/wives till the period is over.[3]

Yet, if he did not specify any period, or if he specified a period that is more than four months, he can then choose whether to retract or divorce.[4] 

Chapter 3: Az-Zihaar

Az-Zihaar is when the husband says to his wife, “You are upon me like my mother’s back” or “You are like my mother” and the like.[5] In this case the husband must expiate before nearing his wife:

  • By freeing a slave[6],
  • If he cannot find any, fasting two successive months respectively[7],
  • If he cannot find either, then by feeding sixty needy persons.[8]

The ruler may assist him with some of the Muslim’s charities if he is poor and unable to fast. He may also spend some of the charity on himself and family.

If the Zihaar is timed one must wait the expiration of the period.[9] If the husband had sexual intercourse before the expiration of the period or before expiating, he must then refrain till he expiates and till the specified period is over.[10]

References: 

[1] Sahih: It was narrated from Ibn ‘Abbas that: Jamilah bint Salul came to the Prophet (ﷺ) and said: “By Allah, I do not find any fault with Thabit regarding his religion nor his behavior, but I hate disbelief after becoming Muslim and I cannot stand him. “The Prophet (ﷺ) said to her: ‘WiIl you give him back his garden?” She said: “Yes.” So the Messenger of Allah (ﷺ) told him to take back his garden from her and no more than that. Recorded by Ibn Majah, 2056. Graded Sahih by Shaykh al-Albani in Irwaa al-Ghaleel, 2037

[2] Qur’an: Allah says: “And you should not treat them with harshness that you may take away some of what you have given him.” Surah Nisaa: 19. It is not permissible to prevent her from her right, or treat her in a harmful manner so as to oblige her to ask for separation – Khula’.

[3] If he wants to have sexual intercourse with her before the expiration of the period (4 motnhs), he must expiate, because he went back on his vow.

[4] Qur’an: Allaah says: “Those who take an oath not to have sexual relation with their wives must wait four months, then if they return (change their idea in this period), verily Allah is Oft-Forgiving, Most Merciful.” Surah Baqarah: 227

[5] Qur’an: Az-Zihaar is prohibited. Allah says:  “Those among you who make their wives unlawful to them by Zihaar (i.e., by saying to them “You are like my mother’s back,”) they cannot be their mothers. None can be their mothers except those who gave them birth. And verily, they utter an ill word and a lie” Surah al-Mujaadilah 58:2.

[6] A believing slave.

[7] It is a must that one fasts the two months consecutively. Therefore, if one breaks fasting before completing sixty days then, he must resume fasting from the beginning.

[8] For every poor person half Sa’ (1.5kg) of dates or food and it does not meet the purpose to give out the value only. Feeding comes after inability to fast.

[9] Like the month of Ramadan and the like.

[10] The husband is sinful if he has sexual relationship before expiating.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s