Question # 409: Assalaamualaikum Is iddat period different for khula and talaq. One of my cousins daughter has been living separately from her husband since one year and wants take khula does she still have do iddat time and how much. Also, what is the process of Khula. Jazakallah khair
bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).
Dear questioner,
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Shorter Answer: Khula’ means the separation of the wife in return for a payment to the husband, which may be equal to the mahr which he gave to her, or more or less than that. The husband should take this 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. As for the waiting period, she should wait for three menstrual cycles, but the correct view is that it is sufficient to wait for one menstrual cycle, because of the hadith of Prophet (صلى الله عليه و سلم) in this regard. But if she waits for three menstrual cycles that will be more complete and will be on the safe side and will avoid an area of scholarly dispute.
Long Answer: 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. In principle, it can only occur at the request of the wife, and with the husband’s subsequent agreement to end the marriage.
The basic principle concerning this is the verse in which Allah (سبحانه و تعالى) says in the Qur’an: “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 Allah (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 Allah, 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)” (Soorah al-Baqarah, 2:229)
The evidence for that from the Sunnah is that the wife of Thaabit ibn Qays ibn Shammaas (رضي الله عنه) came to the Prophet (صلى الله عليه و سلم) and said, “O Messenger of Allah, 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 (صلى الله عليه و سلم) said to her, “Will you give back his garden?” Because he had given her a garden as her mahr. She said, “Yes.” The Prophet (صلى الله عليه و سلم) said to Thaabit: “Take back your garden and divorce her.” (Narrated by al-Bukhari)
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 (صلى الله عليه و سلم) 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; classed as hasan by al-Albaani in Irwa’ al-Ghaleel)
[Finally,] Khula’ has pillars that must be fulfilled for it to be valid; these pillars are:
- The two contracting parties; the husband or a person acting on his behalf and the wife or her Wali (guardian) or a person acting on her behalf.
- The two compensations: the Budh’ (the husband’s right of ‘sexual access’ to the wife) and the compensation that the wife pays to the husband in return for Khula’.
- The formula of offer and acceptance; the wording of Khula’ (offer) uttered by the husband such as: ‘I have given you Khula’ for such-and-such (compensation),’ and the wife should accept and say ‘I accept,’ for example.
IDDAH (WAITING PERIOD)
‘Iddah is obligatory upon every woman who leaves her husband, or whose husband leaves her, whether the cause is talaaq (divorce), annulment of the marriage or the death of the husband, except when the divorce occurs before the marriage has been consummated, in which case the woman does not have to observe ‘iddah, because Allah (سبحانه و تعالى) says in the Qur’an: “O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no ‘Iddah [divorce prescribed period] have you to count in respect of them” (Soorah al-Ahzab, 33:49)
If the woman who has been divorced by khula’ is pregnant then her ‘iddah lasts until she gives birth, according to scholarly consensus. (Al-Mughni)
But if she is not pregnant, the scholars differed concerning her ‘iddah. Most of the scholars said that she should wait for three menstrual cycles, because of the general meaning of the ayah in the Qur’an: “And divorced women shall wait (as regards their marriage) for three menstrual periods” (Soorah al-Baqarah, 2:228)
But the correct view is that it is sufficient for a woman divorced by khula’ to wait for one menstrual cycle, because the Prophet (صلى الله عليه و سلم) told the wife of Thaabit ibn Qays, when she divorced him by khula’, to wait out the ‘iddah for one menstrual cycle. (Narrated by al-Tirmidhi [and Abu Dawood]; classed as sahih by al-Albani in Saheeh al-Tirmidhi; [Also narrated by al-Nasaa’i from the hadith of al-Rabee’ bint ‘Afra’. The two hadith were both classed as sahih by Ibn al-Qayyim)]. This hadith refers specifically to khula’ divorce whereas the ayah quoted above speaks of divorce in general. But if she waits out an ‘iddah of three menstrual cycles that will be more complete and will be on the safe side, and will avoid an area of scholarly dispute, as some scholars say that she should wait for three menstrual cycles, based on the ayah quoted. (Fataawa al-Talaaq by Shaykh Ibn Baaz)
Ibn al-Qayyim (may Allah have mercy on him) said:
“In the fact that the Prophet (صلى الله عليه و سلم) commanded the woman who ended her marriage to her husband by khula’ to observe an ‘iddah of one menstrual cycle, there is evidence for two rulings:
- The first is that she does not have to wait for three menstrual cycles, rather one menstrual cycle is sufficient. Just as this is clearly the Sunnah, it was also the view of Ameer al-Mu’mineen ‘Uthman ibn ‘Affan, ‘Abd-Allah ibn ‘Umar ibn al-Khattab, al-Rabee’ bint Mu’awwadh and her paternal uncle, who was one of the greatest Sahabah. We do not know of anyone who held a different opinion, as al-Layth ibn Sa’d narrated that Naafi’ the freed slave of Ibn ‘Umar heard al-Rabee’ bint Mu’awwadh ibn ‘Afra’ telling ‘Abd-Allah ibn ‘Umar (رضي الله عنه) that she had ended her marriage to her husband by khula’ at the time of ‘Uthman ibn ‘Affan, and her paternal uncle had come to ‘Uthman ibn ‘Affan and said, The daughter of Mu’awwadh ended her marriage to her husband by khula’ today, so should she move (from the marital home)? ‘Uthman said, she should move, and there is no inheritance between them, and she does not have to observe any ‘iddah, but she should not remarry until one menstrual cycle has passed, lest she be pregnant. ‘Abd-Allah ibn ‘Umar said: and ‘Uthman was the best of us and the most knowledgeable. This view was also shared by Ishaaq ibn Raahawayh and Imam Ahmad, according to one report narrated from him. It was also the view favored by Shaykh al-Islam Ibn Taymiyah.
- Those who supported this view said: this is in accordance with the principles of shari’ah. The ‘iddah (in the case of talaaq) was made three menstrual cycles in order to lengthen the time during which the husband may take back his wife, so that the husband will have enough time to rethink the matter and to be able to take his wife back during this time. But in the case of khula’ the wife is not going to go back, and the purpose is simply to establish whether she is pregnant or not, so one menstrual cycle is sufficient. They said: this does not contradict the ruling that the ‘iddah for a woman divorced by talaaq is three months. In the case of divorce the ‘iddah is the same whether it is a final talaaq or a revocable talaaq.” (Zaad al-Ma’ad)
Some scholars said that the ‘iddah for a woman who ends her marriage to her husband by khula’ is three menstrual cycles, as in the case of one who is divorced by talaaq, but this was expertly refuted by Imam Ibn al-Qayyim, who said:
“What indicates that khula’ is not the same as talaaq is the fact that in the case of a revocable talaaq after consummation of the marriage, there are specific rulings which are not applicable in the case of khula’:
- That the husband has more right to take her back.
- When the husband issues a talaaq, is it counted as one of three, and after the third it is not permissible for the wife to go back to him until she has been married to another man and that marriage has been consummated.
- ’iddah in the case of talaaq is three menstrual cycles.
So, the ‘iddah in the case of khula’ is what is indicated by the Sunnah, namely one menstrual cycle.”
(The above reply is based on the following resources:
- Islamweb.net, a web site belonging to the Ministry of Awqaf and Islamic Affairs in the State of Qatar
- Various answers provided by Shaykh Muhammad Saalih al-Munajjid on similar topics)
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.
Wassalaam
