Can Imam of the Mosque in Western Countries Conduct Perform Khul’ Proceedings?

Answered by Shaykh Dr. Muhammad Abu Bakr Badhib

Question

Is it permissible for the imam of a mosque in Western countries to conduct proceedings like khul‘ (divorce initiated by the wife)?

Answer

In the name of Allah, and all praise is due to Allah, and blessings and peace be upon our master Muhammad, the Messenger of Allah, his Family, his Companions, and those who follow him.

It is permissible for the imam of a mosque in Western countries if there is no Islamic center to take care of Muslim affairs, to conduct and record the proceedings of khul‘. The basis is that the validity of khul‘ does not require referral to a sovereign, a ruler, or their deputy, as will be detailed further.

Khul‘ pertains to personal status issues, relating to the separation of spouses from one another, being one form of divorce. These matters are highly sensitive and private, thus they must be handled with caution and care, and not recklessly in issuing rulings without referring to the knowledgeable in this field. The matter in question falls under the jurisprudential query: “Does the initiation of khul‘ require the permission of a judge?” There are two opinions on this matter:

The First Opinion: Majority

That of the majority of jurists see that khul‘ does not require the permission of a judge, as it is a contract based on mutual consent between the two parties, and it is enforceable by itself once its conditions are met. This is the view of the scholars from all four Schools of thought.

Sarkhasi (from Hanafis) said: “Khul‘ is permissible with or without the sovereign.” [Sarkhasi, al-Mabsut]

Dardir (from Malikis) said: “Khul‘ is permissible whether in the presence of a ruler or not.” [Dardir, al-Sharh al-Kabir]

Mawardi from the Shafi‘i School stated: “Khul‘ is valid with or without a sovereign if the spouses consent to it. Imam Shafi‘i has explicitly stated this in his book al-Umm, and neither the presence of a sovereign nor his permission is a condition in it, which is the opinion of the majority of jurists.” [Mawardi, al-Hawi al-Kabir]

Ibn Qudama al-Hanbali stated: “Khul‘ is permissible without a sovereign.” [Ibn Qudama, al-Mughni]

Bukhari reported in his Sahih that ‘Umar Ibn al-Khattab and ‘Uthman Ibn ‘Affan approved khul‘ without a sovereign. [Ibn Hajar, Fath al-Bari]

The majority argue with the following: Divorce (talaq) is permissible without the permission of a ruler, and so is khul‘. Khul‘ is a contract of exchange and thus does not require a sovereign, like buying and marriage. It is also a termination of contract by mutual agreement, similar to cancellation, which does not require the ruler’s permission. Allah (Most High) says: “There is no blame if the wife compensates the husband to obtain divorce.” [Quran, 2:229], which permits taking from the wife by mutual agreement without a sovereign.

The Second Opinion: Minority

From Hasan Basri and Muhammad Ibn Sirin: Khul‘ is only valid with a sovereign, arguing with the verse of the Quran:

“So if you fear they will not be able to keep within the limits of Allah, there is no blame if the wife compensates the husband to obtain divorce.” [Quran, 2:229] [Mawardi, al-Hawi al-Kabir]

Their argument is based on the verse: “So if you fear they will not be able to keep within the limits of Allah.” [Quran, 2:229], and the verse: “If you anticipate a split between them, appoint a mediator from his family and another from hers.” [Quran, 4:35], indicating that the fear is on the part of others, not the couple, as it does not say (if they are two). The intended (by others] are the authorities.

Important Note

Khul‘ outside Islamic Countries

In non-Islamic countries, this task can be undertaken by a scholar or an official in Islamic centers—if they are tasked with it—only in two cases:

The first case is when the marriage contract was conducted away from the official procedures followed in any country, which is undoubtedly a mistake. However, if this occurs and either or both spouses wish to legally terminate it, khul‘ serves as a legitimate means for this, especially if the husband insists on not granting a divorce.

The second case occurs when the marriage contract was conducted according to the laws of non-Islamic countries. These laws have their own procedures for terminating a marriage contract, and these procedures must be followed in adherence to the contract agreed upon by the spouses. If the spouses wish, either before or after completing these procedures, to undertake khul‘ in front of a legitimate Islamic authority to ensure that the separation between them is completed according to Islamic law, this is commendable. However, it is not valid for the wife to enter into a new marriage contract until the legal procedures required to terminate the previous contract are completed.

If the marriage contract was made according to the law of an Islamic country, then khul‘ to terminate it must only be conducted in the manner stipulated by the law of that country.

Summary

Based on the above, it is advisable, especially for Muslims living in Western countries, to approach Islamic centers to register their marriages or divorces and not to neglect these matters due to the significant legal and Islamic rulings that depend on them. May Allah grant success.

[Shaykh] Dr. Muhammad Abu Bakr Badhib

Shaykh Dr Muhammad Abu Bakr Badhib is a prominent Islamic scholar from Yemen born in Shibam, Hadhramaut, in 1976. He received his degree in Shari‘a from Al-Ahqaf University, a master’s degree from the Islamic University of Beirut, and a PhD in Usul al-Din from Aligarh Muslim University (AMU).

He studied under great scholars such as Shaykh al-Habib Ahmad Mashhur al-Haddad, Shaykh Fadl Ba‘ fadl, Habib Salim al-Shatiri, Habib Ali Mashhur bin Hafeez, and others. He has served as the Director of Publications at Dar al-Fiqh, the former Deputy Director of Cultural Relations at Al-Ahqaf University, a former Assistant for Employee Affairs at Atiyah Iron Company, a researcher at the Sunna Center affiliated with the Dallah al-Baraka Foundation, and a researcher at Al-Furqan Foundation’s Makka al-Mukarrama and Madina al-Munawwara Encyclopedia branch.

Currently, he is a researcher at Al-Furqan Foundation’s Makka al-Mukarrama and Madina al-Munawwara Encyclopedia branch, teaches traditionally through the Ijaza system at Dar al-Fuqaha in Turkey, supervises the Arabic department at Nur al-Huda International Institute (SeekersGuidance), and is a member of the Board of Trustees of the Manuscript House in Istanbul.

His works include “The Efforts of Hadhramaut Jurists in Serving the Shafi‘i School,” “Contributions of Hadhramaut Scholars in Spreading Islam and its Sciences in India,” “Hada’iq al-Na‘im in Shafi‘i Fiqh,” in addition to verifying several books in Fiqh, history, the art of biographies, and Asanid (chains of narration).