By M. Hanif Lakdawala

Allah Most High says:

Divorce is [to be pronounced] twice, and then [a women] is to be retained in honour or released in kindness. (Al-Baqarah 2:229)

And if he divorces her again [the third time], she is not lawful to him thereafter until she has married another husband. Then, if he [the other husband] divorces her, it is no sin for the two of them to return to each other if they suppose that they are able to observe Allah�s limits; He makes them plain for people who know.
(Al-Baqarah 2:230)

We see that a man can return to his former wife � that is, he can remarry her � after two divorces but not after three divorces, unless she has meanwhile married to another man and has subsequently been divorced by him.

Sometimes, a remorseful husband, after divorcing his wife three times, tries to arrange a marriage between his divorced wife and another man on the condition that the second husband will divorce her within a few days, preferably the very next day. He may even offer some money to the second husband for this favour. The man who is willing to do this is called a �Muhallil� that is, one who makes something Halal or permissible; the first husband is called the �Muhallal-lahu� � the one for whom it is made Halal; and the procedure is called �Tahlil� � to make something Halal. The Prophet (Pbuh) compared the Muhallil to a hired billy goat).

Abdullah bin Shareek Ameri reported that Ibn Umar was asked for a ruling on the following situation: A man who was married to his cousin divorced her irrevocably (i.e., for the third time), but was then sorry for it and wanted to remarry her. Another man had come forward to do Tahlil for him. Ibn �Umar then replied: �Both will be adulterers, even if they live together for 20 years, as long as he married her for the sake of making her lawful for her previous husband.�

Khula: Definition and How it is done

Khula� means the separation of the wife in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the mahr which he gave to her, or more or less than that.

The basic principle concerning this is the verse in which Allaah says (interpretation of the meaning): �And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul� (divorce)� [al-Baqarah 2:229]

The evidence for that from the Sunnah is that the wife of Thaabit ibn Qays ibn Shammaas (may Allaah be pleased with him) came to the Prophet (peace and blessings of Allaah be upon him) and said, �O Messenger of Allaah, I do not find any fault with Thaabit ibn Qays in his character or his religious commitment, but I do not want to commit any act of kufr after becoming a Muslim.� The Prophet (peace and blessings of Allaah be upon him) said to her, �Will you give back his garden?� Because he had given her a garden as her mahr. She said, �Yes.� The Prophet (peace and blessings of Allaah be upon him) said to Thaabit: �Take back your garden, and divorce her.� (Narrated by al-Bukhaari, 5273).

From this case the scholars understood that if a woman cannot stay with her husband, then the judge should ask him to divorce her by khula�; indeed he should order him to do so.

With regard to the way in which it is done, the husband should take his payment or they should agree upon it, then he should say to her �faaraqtuki� (I separate from you) or �khaala�tuki (I let you go), or other such words.

Talaaq (i.e., divorce) is the right of the husband, and does not take place unless it is done by him, because the Prophet (peace and blessings of Allaah be upon him) said: �Talaaq is the right of the one who seizes the leg (i.e., consummates the marriage)� i.e., the husband. (Narrated by Ibn Maajah, 2081; classed as hasan by al-Albaani in Irwa� al-Ghaleel, 2041).

Hence the scholars said that whoever is forced to divorce his wife by talaaq wrongfully, and divorces her under pressure, then his divorce is not valid. See al-Mughni, 10/352.

With regard to a woman who might arrange her own divorce through the man-made laws, if this is for a reason for which it is permissible to seek a divorce, such as disliking her husband, not being able to stay with him or disliking him because of his immoral ways and indulgence in haraam actions, etc., there is nothing wrong with her seeking divorce, but in this case she should divorce him by khula� and return to him the mahr that he gave to her.

But if she is seeking divorce for no reason, then that is not permissible and the court ruling on divorce in this case does not count for anything in terms of sharee�ah. The woman still remains the wife of the man. This gives rise to a new problem, which is that this woman is regarded as a divorcee in the eyes of the (man-made) law, and can re-marry after her �iddah ends, but in fact she is still a wife and not a divorcee.

Shaykh Muhammad ibn Saalih al-�Uthaymeen (may Allaah have mercy on him) was asked about a similar matter and said: Now we have a problem. The fact that she is still married to him means that she cannot marry anyone else, but according to the court ruling she is apparently divorced from him, and when her �iddah ends she can re-marry. I think that the only way out of this problem is that good and righteous people should get involved in this matter, to bring about reconciliation between the man and his wife. Otherwise she has to give him some payment, so that it will be a proper shar�i khula�. [Liqa� al-baab al-Maftooh by Shaykh Muhammad ibn �Uthaymeen, no. 54; 3/174.]

Ibn Katheer (may Allaah have mercy on him) said: There is unanimous agreement that the man who has divorced his wife by khula� may take her back during the �iddah.

Examples of acceptable reasons for asking one�s husband for khula�

1. If a woman dislikes her husband�s treatment of her � for example, he is over-strict, hot-tempered or easily-provoked, or gets angry a lot, or criticizes her and rebukes her for the slightest mistake or shortcoming, then she has the right of khula� [female-instigated divorce].

2. If she dislikes his physical appearance because of some deformity or ugliness, or because one of his faculties is missing, she has the right of khula�.

3. If he is lacking in religious commitment � for example, he doesn�t pray, or neglects to pray in jamaa�ah, or does not fast in Ramadaan without a proper excuse, or he goes to parties where haraam things are done, such as fornication, drinking alcohol and listening to singing and musical instruments, etc. � she has the right of khula�.

4. If he deprives of her of her rights of spending on her maintenance, clothing and other essential needs, when he is able to provide these things, then she has the right to ask for khula�.

5. If he does not give her her conjugal rights and thus keep her chaste because he is impotent (i.e. unable to have intercourse), or because he does not like her, or he prefers someone else, or he is unfair in the division of his time [i.e., among co-wives], then she has the right to ask for khula�.