Is the determination of the khul' payment left to the husband, is it required to be money, is it permissible to take the children in exchange for money, and what is the meaning of the verse
Machine translationRead the Arabic original
The questioner : Regarding the money the wife wants to give to ransom herself from her husband, is the matter of determining it left to the husband's desire? And what is the meaning of the saying of Allah the Exalted: [Al-Baqarah 2:229]? And is it necessary that it be money, or is that not a condition, but rather whatever satisfies the husband, whatever it may be? Among such cases is a man who imposed a condition on his wife that if she requests divorce, the price of that is that the children with her at the time of divorce remain with him without condition or calculation, otherwise he will not divorce her until the children reach seven years of age. So he says to her family: I will accept her release if she wants, if my weaned child is in my hand, I will take him whenever I wish without condition. So her ransom is the relinquishment of her custody. Is such a thing valid or not?
The Shaykh : This issue is called the issue of khul' or divorce for compensation, as is the case with most scholars of jurisprudence, although some scholars say that divorce for compensation is khul' even if it occurs with the wording of divorce. That is, if the woman cannot remain with the husband and he does not wish to divorce her without compensation, there is no blame on them for what she gives in ransom for her freedom.
The scholars differed: is it permissible for him to demand from her in khul' more than what he gave her, or is it not permissible? Some said that it is not permissible for him to take more than what he gave her, but rather his right is only to take what he gave her. This is because taking more than what he gave her contains an element of injustice toward her. They cited as evidence that this man took in exchange for what he gave her what he made lawful from her private parts, so if he takes more from her, it is injustice.
And some scholars said that it is permissible for him to divorce her with khul' for more than what he gave her, due to the generality of the saying of Allah the Exalted:[Al-Baqarah 2:229], and since "what" is a relative pronoun, it is one of the forms of generality.
However, those who said that he does not take more said that this exception refers back to what preceded, which is His saying:[Al-Baqarah 2:229], meaning in what she ransomed herself with from what he gave her. There is no doubt that this second opinion, that he does not take more than what he gave her, is safer for his conscience and more secure. May Allah except the case where he married her when dowries were cheap, and if he limited himself to what he gave her, he would not find a wife with it, and he does not have what to complete the dowry. In this case, we may say that there is no blame on him in asking for more than what he gave her.
As for what the questioner mentioned regarding the compensation being the relinquishment of her right to custody, the apparent meaning of the verse is that it is valid due to the generality of His saying:[Al-Baqarah 2:229]. However, what is known among the scholars is that it is not valid except with money, with what is valid as a dowry. Relinquishing her right to custody is not of this category. Accordingly, we say: if he wants to divorce her with khul', let him make a compensation, even if it is small, like ten dirhams or the like. In that case, the khul' is completed. And if she relinquishes her right to custody, there is no blame in that.
The questioner : Yes, may Allah reward you with good.
there is no blame upon either of them concerning that by which she ransoms herself
فَلا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِThe Shaykh : This issue is called the issue of khul' or divorce for compensation, as is the case with most scholars of jurisprudence, although some scholars say that divorce for compensation is khul' even if it occurs with the wording of divorce. That is, if the woman cannot remain with the husband and he does not wish to divorce her without compensation, there is no blame on them for what she gives in ransom for her freedom.
The scholars differed: is it permissible for him to demand from her in khul' more than what he gave her, or is it not permissible? Some said that it is not permissible for him to take more than what he gave her, but rather his right is only to take what he gave her. This is because taking more than what he gave her contains an element of injustice toward her. They cited as evidence that this man took in exchange for what he gave her what he made lawful from her private parts, so if he takes more from her, it is injustice.
And some scholars said that it is permissible for him to divorce her with khul' for more than what he gave her, due to the generality of the saying of Allah the Exalted:
there is no blame upon either of them concerning that by which she ransoms herself
فَلا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِHowever, those who said that he does not take more said that this exception refers back to what preceded, which is His saying:
And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself
وَلا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِAs for what the questioner mentioned regarding the compensation being the relinquishment of her right to custody, the apparent meaning of the verse is that it is valid due to the generality of His saying:
concerning that by which she ransoms herself
فِيمَا افْتَدَتْ بِهِThe questioner : Yes, may Allah reward you with good.