Sunday, 4 December 2011

Al-khul'a (Have Divorced)

BOOK Marriage

By
Sheikh Abdullah bin Abd al-Azhim Khalafi

Al-khul'a (Have Divorced)
Definition:
Khul'a in language taken from the ATS-tsauba Khala'a word meaning disrobe. Because in fact husband and wife is the husband's clothes are clothes for the wife. Allah Ta'ala says:

هن لباس لكم وأنتم لباس لهن

"They are clothing for you, and you too are a garment for them." [Al-Baqarah: 187]

While according to the scholars of fiqh, khul'a is conducted by a husband divorces his wife for ransom to the treasure which he took from his wife. Known also as fidyah and iftida. [1]

Legal khul'a In Shari'ah:
If the conflict between husband and wife heats up and impossible to put back together while the wife wants to separate from her husband, then allowed him to redeem himself by paying some property to the husband in return for harm arising from divorce.

Allah Ta'ala says:

ولا يحل لكم أن تأخذوا مما آتيتموهن شيئا إلا أن يخافا ألا يقيما حدود الله فإن خفتم ألا يقيما حدود الله فلا جناح عليهما فيما افتدت به

"It is not lawful for you to take back something from which you have given them, unless both fear that they will not be able to execute the laws of God. If you fear that they (husband and wife) can not execute the laws of God, then no blame on them regarding payment given by the wife of weeks to redeem himself. " [Al-Baqarah: 229]

From Ibn 'Abbas radi anhuma he said,' Wife Thabit bin Qais bin Syammas facing the Prophet sallallaahu 'alaihi wa sallam and said:

يا رسول الله ما أنقم على ثابت في دين ولا خلق إلا أني أخاف الكفر, فقال رسول الله صلى الله عليه وسلم: فتردين عليه حديقته, فقالت: نعم. فردت عليه وأمره ففارقها.

"Messenger of Allah, I do not reproach Thabit in matters of religion and behavior, but I'm afraid of Kufr." Then the Prophet sallallaahu 'alaihi wa sallam said, "Do you want to restore the garden to him?" He replied, "Yes." And then the garden was returned to Thabit bin Qais and told him to divorce his wife. "[2]

Warning Hard Top Actions khul'a
From Tsauban radi anhu, he said that the Prophet sallallaahu 'alaihi wa sallam said:

أيما امرأة سألت زوجها الطلاق في غير ما بأس فحرام عليها رائحة الجنة.

"Any woman who asked for a divorce from her husband without any reason, then he will not smell the fragrance of Paradise." [3]

In another Hadith he (Tsauban) also narrated from the Prophet sallallaahu 'alaihi wa sallam that he once said:

المختلعات هن المنافقات.

"The wife wanted a divorce are women hypocrites." [4]

Warning Hard For The Husband For Not Doing 'Adhl (troublesome) To The Wife
If a husband does not like for his wife because of a cause, then he should divorce his wife by doing good as commanded by God Almighty and let him hold his wife and doing injustice to him so he redeemed himself.

Allah Ta'ala says:

وإذا طلقتم النساء فبلغن أجلهن فأمسكوهن بمعروف أو سرحوهن بمعروف ولا تمسكوهن ضرارا لتعتدوا ومن يفعل ذلك فقد ظلم نفسه ولا تتخذوا آيات الله هزوا واذكروا نعمت الله عليكم وما أنزل عليكم من الكتاب والحكمة يعظكم به واتقوا الله واعلموا أن الله بكل شيء عليم

"When you mentalak wives, then they approach the end of 'iddahnya, then retain them in a way that ceraikanlah doing good or doing good in a way that they (also). Rujuki Do not give them to harm, because then you persecute them. Anyone who does so, then indeed he has done against the wrongdoers themselves. Do not make the laws of God as a game, and remember the favor of Allah unto you, that the Scripture and the al-Hikmah. God gave instruction to you with what has been handed- His was. And fear Allah and know that Allah is Knower of all things. " [Al-Baqarah: 231]

يا أيها الذين آمنوا لا يحل لكم أن ترثوا النساء كرها ولا تعضلوهن لتذهبوا ببعض ما آتيتموهن إلا أن يأتين بفاحشة مبينة وعاشروهن بالمعروف فإن كرهتموهن فعسى أن تكرهوا شيئا ويجعل الله فيه خيرا كثيرا

"O ye who believe, it is not lawful for you mempusakai woman by force and do not bother them that they might take back some of what you had given to him, except when they do lewdness. And hang out with them it deserves. Then if you do not like them, (so be patient) because maybe you do not like something, but God made him that much good. " [An-Nisa ': 19]

Khul'a is Faskh (annulment of marriage) is not the Separations
If a wife redeemed himself later divorced her husband, then she (wife) more authority over him and there is no right for the husband to reconcile except by keridhaannya. And the separation is not considered a divorce despite the fall in lafazh divorce, but the law is faskh in agreement for the benefit of the wife in exchange for ransom.

Ibn al-Qayyim, may Allaah have mercy say, "That shows that it is not convicted as a divorce that Allah Subhanahu wa Ta'ala determine three things in divorce law for divorce yet three, all of which do not exist in law khul'a, namely:

First: That the husband is more entitled in terms of reconciliation rather than wife

Second: Separations are calculated for three times, then if there has been three divorces, the wife is not lawful for him but after returning with her husband married another and intervene.

Third: That the 'iddah of divorce is a three quru'.

As for the issue khul'a:
Has Thabit (fixed) in the texts and ijma '(consensus all scholars) that there is no reference in khul'a.

And has Thabit in the Sunnah of Allaah 'alaihi wa sallam and his Companions that the words' iddah in khul'a one-time only during menstruation.

And has Thabit in texts about the permissibility khul'a after two divorces and divorce law falls three afterwards (after passing three times menstruation) ..

From the above very clear that khul'a not a divorce.

Allah Subhanahu wa Ta'ala says:

الطلاق مرتان فإمساك بمعروف أو تسريح بإحسان ولا يحل لكم أن تأخذوا مما آتيتموهن شيئا إلا أن يخافا ألا يقيما حدود الله فإن خفتم ألا يقيما حدود الله فلا جناح عليهما فيما افتدت به تلك حدود الله فلا تعتدوها ومن يتعد حدود الله فأولئك هم الظالمون

"Separations (which can be referenced) twice. Once again it may refer to the way that ma'ruf or divorce in a good way. Not lawful for you to take back something from which you have given them, unless both fear that they will not be able to execute the laws of God. If you fear that they (husband and wife) can not execute the laws of God, then there is no blame on them regarding payment given by the wife to redeem himself. " [Al-Baqarah: 229]

[Copied from the book Al-Sunnah wal Wajiiz FII Fiqhis Kitaabil Aziiz, author Azhim Shaykh ibn Abdul al-Khalafi Badawai, edition of Indonesia Guide Complete Fiqh, Translation Team Tashfiyah LIPIA - Jakarta, Reader Publishers Ibn Kathir, Ramadan First published in 1428 - September 2007M]
_______
Footnote
[1]. Fiqhus Sunnah (II/253), Manaarus Sabiil (II/226), Fat-Hul Baari (IX/395).
[2]. Saheeh: [Irwaa-ul Ghaliil (no. 2036)], Shahiih al-Bukhari (IX/395, no. 5276).
[3]. Saheeh: [Shahiih Ibni Sunan Majah (no. 1672)], Sunan Abi Dawood (VI / 308, no. 2209), Sunan at-Tirmidhi (II/329, no. 1199), Sunan Majah Ibni (I/662, no . 2055).
[4]. Saheeh: [Shahiih al-Jaami'ish Shaghiir (no. 6681)], Sunan at-Tirmidhi (II/329, no. 1198).

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