Fatwa: # 18595
Category: Divorce
Country: South Africa
Date: 16th April 2010

Title

1. My wife went away to her parents without my permission, and has decided not to come back. Am i still obliged to pay for her ...2. My wife has asked for a khula, I understand that in a khula, a woman has to return the mehar to her husband. However, my question is do

Question

 

I have 2 questions that i would like to ask on the topic of Talaq

 

1. My wife went away to her parents without my permission, and has decided not to come back. Am i still obliged to pay for her upkeep/medical?

 

 

2. My wife has asked for a khula, I understand that in a khula, a woman has to return the mehar to her husband. However, my question is do  I -as the husband-  have the right to ask for the gifts/gold that were given to her  by my parents during/after the marriage? or do my parents have a right to ask for the gold they gave her?

 

 Lastly, can i ask for all the money that i have spent on her during our entire marriage period.

Answer

 

In the name of Allāh, Most Gracious, Most Merciful


Assalāmu ῾alaykum wa Rahmatullāhi Wabarakātuh

 

In principle, if the wife leaves the home of the husband without his permission then the husband will not be obligated to pay for her expenses.

“If she disobeys then there is no expenditure for her until she comes back”

(Fatāwa ῾Alamgīriah, Vol.1 , Pg.545) [1]

If the fault is found from the side of the wife, then the husband can ask for something in lieu of khula. If not , then it is makrooh tahreemi to ask for something from the wife. It is not necessary that the amount given for khula is equivalent to the complete mahar. It may also be a lesser amount. Infact, the Fuqahaa has rendered it makrooh for the husband to demand more than the mahar. Once the gifts have been handed over to her, she will become the owner of those various commodities. Moreover, it is not appropriate to ask for the gifts and all the money spent on her during marriage period because it is against the spirit of islām.

“If the fault is from the husband’s side, it is not permissible for him to take anything in lieu of khula…and if it is from the girl side then it is makrooh to take more than a mahar from her in lieu of khula”

   (Fatāwa Alamgīriah, Vol.1, Pg.488) [2]

Nabi karīm sallallāhu ῾alayhi wasallam disliked taking back of gifts that one had already given, and strongly discouraged this habit, as is evident in the following hadīth.

“Nabi karīm sallallāhu ῾alayhi wasallam  said, "One who takes back his gift (which he has already given) is like a dog that swallows its vomit."

(Muslim, Vol.5, Pg.64)[3]

 

And Allāh Ta῾āla Knows Best

Wassalāmu ῾alaykum 

Ml. Abdur Rahman Shareef,
Student Dārul Iftā

Checked and Approved by:

Mufti Ebrahim Desai
Dārul Iftā



[1]  وإن نشزت فلا نفقة لها حتى تعود إلى منزله)فتاوى عالمكيرية،الفصل في نفقة الزوجة)

[2] إن كان النشوز من قبل الزوج فلا يحل له أخذ شيء من العوض على الخلع وهذا حكم الديانة فإن أخذ جاز ذلك في الحكم ولزم حتى لا تملك استرداده كذا في البدائع وإن كان النشوز من قبلها كرهنا له أن يأخذ أكثر مما أعطاها من المهر(فتاوى عالمكيرية،الفصل في شرائط الخلع)

[3]  وحدثناه محمد بن المثنى ومحمد بن بشار قالا حدثنا محمد بن جعفر حدثنا شعبة سمعت قتادة يحدث عن سعيد بن المسيب عن ابن عباس عن النبى -صلى الله عليه وسلم- أنه قال « العائد فى هبته كالعائد فى قيئه (مسلم، باب تحريم الرجوع فى الصدقة والهبة بعد القبض إلا ما وهبه لولده وإن سفل،دار الجيل،بيروت)

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