Fatwa

  1. Fatwa
  2. Women and Family
  3. Separation of Spouses
  4. Khulu` (Divorce at the request of the wife who pays a compensation)

Married without the consent of her Wali and wants to end her marriage
Fatwa No: 130543

Question

Salam. The couple got married 2 yrs ago without the permission of the girl's father (because the family was against the rishta). there were 2 witnesses and an appointed wali, they all signed on a self written paper, not verified by any governing body. The marriage was kept hidden the entire period. In this time period the husband & wife have stayed together for only 3 months, last meeting physically was 10 months ago. The husband has never provided any money for lodging/food, etc. Due to differences in cultures, likes and thoughts the wife seeks khula but the husband refuses. Is this marriage valid? If it is, how can the wife seek khula without making this into a court case. Seeking a strong fatwa which can clarify issues. Pls email back if any other details are required. Jazakallah khair

Answer

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad is His slave and Messenger.

 

The consent of the woman’s guardian is a condition for the validity of the marriage according to the preponderant view of the scholars as we clarified in Fatwa 83629. If the closest guardian to the girl has a sound reason for preventing the girl under his guardianship from marriage, then the other guardians of the girl are not permitted to marry her off. If a far guardian marries her off while the closest guardian is available, then the marriage is not valid according to the most preponderant opinion of the scholars .

However, the invalid marriage about which there is a difference of opinion must be ended either by divorce or by invalidating it. In case the husband refuses to divorce the wife, she is permitted to take the matter to an Islamic court so that the judge would invalidate her marriage. Besides, a wife can seek Khul’ from her husband without resorting to an Islamic court, by agreeing with him to pay him compensation so that he would divorce her. Allaah Says (what means): {… Then if you fear that they would not be able to keep the limits ordained by Allaah, 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).}[Quran 2:229] For more benefit, please refer to Fatwa 89039. Anyway, in a void marriage, the husband is not obliged to spend on his wife unless she is pregnant.

The following matters should be mentioned:

It is not a condition for the validity of the marriage contract to register it in the court or in any other governmental authority.
If the marriage meets the conditions of a valid marriage, it is not a secret marriage. Making the marriage public is desirable and not an obligation.
If we presume that the marriage was valid, it is not permissible for the wife to ask for Khul’ or divorce without a sound reason. The difference in likes and thoughts between the husband and the wife is not a sound reason for seeking divorce or Khul’.

Allaah Knows best.

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