Answer
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:
As the ex-husband cannot accompany her in Hajj trip after divorce, he has to pay her the fees of Hajj instead.
In his response to your question, Sheikh Ahmad Kutty, a senior lecturer and an Islamic scholar at the Islamic Institute of Toronto, Ontario, Canada, states:
Muslims are bound by the terms of their contracts and covenants. This is a categorical imperative of the Quran as stated in numerous places. Allah says, {And be true to every promise – for, verily, [on Judgment Day] you will be called to account for every promise which you have made!} (Al-Israa’ 17: 34)
The Prophet (peace be upon him) said, “Of the terms of contracts, there is nothing more worthy of adherence to like those stipulated in marriage contracts.” (Al-Bukhari)
Therefore, undoubtedly, a man is bound by the terms of his marriage contract. However, since he cannot fulfill the term as stipulated, nevertheless, he cannot escape it altogether. For sure, he cannot take her to Hajj, because of the fact they are now divorced.
The Prophet (peace be upon him) said, “Muslims are bound by the terms of their contracts, except conditions to the extent that they conform to the truth.” (Al-Bukhari)
Therefore, he is bound to fulfill it, nevertheless, and the only option left is to pay for the expenses in cash or assets.
We can never stress enough the fact that the Shari`ah is based on intents and purposes; and the only way for the man, in this case, to fulfill the purpose of the contract he made is to pay for the trip he has promised her.
That is the ruling based on the maqasid (purposes) of the Shari`ah, regardless of the rulings circumventing it offered by those who look at Shari`ah, as if it were a lifeless shell.
Almighty Allah knows best.
Editor’s note: This fatwa is from Ask the Scholar’s archive and was originally published at an earlier date.