In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
In this fatwa:
With regard to your question, Sheikh Hamed Al-`Ali, Instructor of Islamic Heritage at the Faculty of Education, Kuwait and Imam of Dahiat As-Sabahiyya Mosque, answers:
Yes, Khul has to be resorted to at the consent and agreement of both spouses because the wife is supposed to pay money back to the husband in return for the dissolution of marriage. Thus the spouses have to agree on that sum of money, when it will be paid, etc.
However, the wife has another option should the husband does not agree to go for Khul, that is to file a case in the court and resort to the Muslim judge. If she has an excuse then she releases herself by paying back the dowry to her husband and the judge compels him to let her go. Or she might have the Islamic ground for divorce without paying him back the money, in which case the judge will separate them. Or she might not have any reason for separation, in which case the judge is supposed to try to solve the problem and bring peace and reconciliation between the couple.
If all possible means to bring about reconciliation prove to be of no avail, then the judge should compel him to divorce her or release her after taking his money back.
Shedding more light on the issue, Dr. Muhammad Ahmad Siraj, Professor of the Shari`ah at the American University, Cairo, Egypt, states:
Basically, Khul is conducted according to the agreement of both parties to separate without being forced to do so. This view is held by the majority of scholars. However, some scholars are of the opinion that the husband can be forced to give Khul if marriage has proved to be failure and there is no way they can live together.
As evidence, the proponents of the second view quote the hadith of the wife of Thabit Ibn Qais. As stated in the hadith, the Prophet (peace and blessings be upon him) told Qais, “O Thabit! Accept your garden, and divorce her once and for all.”
This command from the Prophet (peace and blessings be upon him) conveys obligation (Wujub) as long as there is no evidence to imply a recommendation (Nadb).
This is due to the fact the Prophet (peace and blessings be upon him) ordered Qais to accept the garden which he gave as dowry to his wife and then divorce her by means of Khul.
If the Prophet (peace and blessings be upon him) had done this in his capacity as the Muslim qadi (jidge) then every qadi is allowed to do the same.
I myself do not see any harm in applying this opinion in view of certain social circumstances.
However, the majority of scholars have interpreted the command in the previous Hadith as that of guidance and advice. Thus the majority of scholars object to the view that the qadi has the right to force the husband to accept Khu and divorce the wife if she gives him what he paid her.
Almighty Allah knows best.
Editor’s note: This fatwa is from Ask the Scholar’s archive and was originally published at an earlier date.