Question:
I’m in the process of divorce. I’m the one who initiated it. My husband is in Pakistan. He is blackmailing me for money. He thinks that in the process of talaq I owe him something. I’m not sure what I owe him. He is blackmailing my family back in Pakistan and there is no law stopping him over there. He thinks that my family or I owe him something. He has everything my parents gave me and he says that he is going to keep it because I still owe him something. There were gifts and precious jewelry and everything that’s required when you get married. I’ve been married for [private] years with no children. I thought I would be blessed, because I listened to my parents and I married somebody that they had chosen for me, and I thought everything would work out.
I didn’t see him for two years now. He cannot come here to America as his visa expired and I will never go back to Pakistan.
Is there anything I need to do as far as khula goes Islamically once the court decides? I was confused whether or not I needed to go through an Islamic court or is the Western court enough?
There is an imam in [private]. So I’m sure he can figure something out, but I wasn’t sure if it was necessary to go through that process.
Answer:
Laa hawla wa laa quwwata illa billahi ‘l-`aliyyu ‘l-`azheem.
وَأُفَوِّضُ أَمْرِي إِلَى اللَّهِ إِنَّ اللَّهَ بَصِيرٌ بِالْعِبَادِ
Wa ufawwidoo amree ila ‘Llah inna ‘Llaha baseerun bi ‘l-`ibaad.
And I entrust my affair to Allah, Surely Allah ever watches over His servants. (Surat al-Ghafir, 40:44)
Render your matter, your problem to Allah (swt) and recite 100x daily, “Ilaahee anta maqsoodee wa ridaaka matloobee. Yaa mufattih al-quloob, yaa muqallib al-quloob, yaa mufattih al-abwaab iftah lanaa khayra ‘l-baab,” which means, “You, O Allah! You are my goal. I’m not going to anyone but You. O Allah! Open for me a door, because all doors is through You.” If you recite that every day, in-sha-Allah it will be good for you; Allah will open for you a new door that you can come out of this mess.
If the wife requests the khula (divorce), she must pay the husband back the mahr he paid her at the time of nikah unless the husband allows her keep the dowry.
On the other hand if the husband divorces the wife it is forbidden for him to demand any payment of the mahr, or any other gifts he gave his wife during the marriage. Whatever the women gets of gifts, as Allah (swt) said in the Holy Qur’an, if you give 1 ton of gold (qintaara) to the lady, to the wife, when there is divorce, it remains hers. You cannot take one penny of it! In the Holy Qur’an it’s mentioned as qintaara:
وَإِنْ أَرَدتُّمُ اسْتِبْدَالَ زَوْجٍ مَّكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلاَ تَأْخُذُواْ مِنْهُ شَيْئًا أَتَأْخُذُونَهُ بُهْتَاناً وَإِثْماً مُّبِيناً
And if you have given one of them a great amount (in gifts), do not take (back) from it anything. Would you take it in injustice and manifest sin? (Surat an-Nisaa, 4:20)
Also whatever her parents give her or what she makes if she works, it is hers. The husband must not ask money from his wife. All what she makes is for her. On the other hand, all that her husband makes, she has part of it. Whatever is hers, Islamically, no one can take it! But now people today they fight for it.
However, a judge will not give anything owned by the wife or owned through her parents’ inheritance or what she makes through her work, she is not required to give up anything of that money or that wealth, she can keep it. If she wants to give to her children, it’s up to her. If she doesn’t give, no one can say to her “give!” And if the husband initiated divorce, he has to take care of the expenses of the wife and her housing. So whatever you get, don’t give to him back. That is, if you get something.
Because you are in the process of divorce, whatever you have is yours.SubhanAllah, this is a very sophisticated Islamic fiqh on what the wife has and what the husband has and how they split. So I think all judges in Pakistan they know that. So don’t worry, it will open up in-sha-Allah and Allah will make it easy for you.
Islamically, if he didn’t show up for nine months, you can make khula from far, because he didn’t come in these two years to America. When you do khula, you don’t need to wait from his side to divorce, it’s already done. Mawlana Shaykh Nazim (q) said, and he is mujaddid (renewer) in Islam, and you see lots of these problems in the West, where the husband doesn’t divorce and the wife is left behind. So he said, “Marriage is a contract: if one of the sides does not want to continue that marriage, that contract is broken, it doesn’t exist anymore, it’s gone.” So he gave permission to those people who are in the West to divorce through the court, even through the Western system. They apply for divorce and they continue in the Islamic way as well by khula, without waiting for the husband to give them divorce.
If we have to follow other scholars, there are two ways: one, they say that you need to go through the Islamic process and one, says that you cannot do that, because you are in the West and everything is very difficult. So when the West gives decision, that’s it, and you can still make khula until the Western divorce is finalized. So if he doesn’t want to say talaq, already talaq has happened, because you have been separated for two years. But to feel at peace, try to submit to the Pakistani court for khula divorce and we will see what happens.
That is why when I make marriages today, I ask them to follow the madhhab of Imam Shafi`i, not the Hanafi school of thought, because in the Shafi`i madhhab you can put the divorce in the hand of the wife, but for one time out of the three times. So if something happens, she will not be stranded like that; she will have the divorce in her hands. And that is a conditional marriage, so it has to be fulfilled. So she can say to him, “I divorce you” and finished, but now they don’t do that because ladies don’t know that this exists and they don’t follow the Shafi`i school of thought.
If you want to take the opinions of open-minded scholars like Mawlana Shaykh Nazim (q), he said “it’s over”. It’s over, because the contract is breached from one side, and then there is separation through the years, so that also makes it over. So he doesn’t go along with khula (being needed), because he considers it’s finished.
However in this case it’s better to go to that imam and let him do the khula. You can do it in his presence quickly and he can finish it with two witnesses and so on, but at that time you are not allowed to ask anything from what he has. There is no dowry, because dowry is in front (mahr muqadam) you pay something and when you divorce you pay something of it back to the husband.
In khula you are not allowed to ask any money from him, just leave. In this way, if you go to Pakistan in the future, no one will come against you and accuse you of committing adultery because you know how they think. So contact that shaykh and tell me.
In-sha-Allah khayr, Fatihah.
Shaykh Muhammad Hisham Kabbani
