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Fatwa CenterHis wife sued him for Khul' and does not let him see his daughter
Question
Respected scholar, I had been blessed with daughter on 5 March 2012, As my case is under trial in Islamic court. I came to about the birth of my daughter on 9 Mach 2012 from other sources and rushed to meet her but my mother in law did not enter me the room (Hospital) and called up police, for the same I complained in Islamic court. Judge of that court just called them for not doing so as this is against of any law but did not give any order in written. As my wife needs Khula at the earliest. Can i hang her ? What should i do in this grief situation ?
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, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
It is not permissible for a husband to keep his wife hanged in a way that he neither keeps her in kindness nor divorces her; because of the harm that this causes to her. Allaah Says about the husband who divorces his wife (what means): {And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself.} [Quran 231]
On the other hand, a wife may request Khul’ [divorce in return for compensation] if she has a sound reason for doing so as we clarified in Fatwa 84309. So, if your wife is permitted to ask for Khul’, it is recommended that you accept her request for Khul’ and not keep her hanged.
As regards seeing your daughter, then this is your right and she (your wife) is not permitted to prevent you from seeing her even if she is the one who is entitled to child custody after divorce. In case she refuses and insists on not allowing you to visit your daughter, and you do not find a way to get your right to (see) your daughter except by procrastinating about giving Khul’, then it is permissible for you to do that as Allaah permitted the husband to put some pressure on his wife who is recalcitrant regarding Khul’ so that she would give him back what he had given her (as a dowry). No doubt taking back his right from her is more permissible for him as Allaah Says (what means): { And do not make difficulties for them in order to take [back] part of what you gave them unless they commit a clear immorality.} [Quran 4:19]
Ash-Shinqeeti 
said in Adhwaa’ Al-Bayaan: “The scholars differed in opinion in regard to what is meant by ‘clear immorality’, so a group of them said: “It is Zina (adultery) and some others said: “It is recalcitrance, disobedience and obscenity. However, it appears that the verse includes all this and this is the view chosen by Ibn Jareer . Besides, Ibn Katheer said: “This is good, so if she commits Zina, or speaks obscene words, or becomes recalcitrant, it becomes permissible to annoy her so that she would ransom herself with what he had given her as we have previously stated that the meaning of the verse is general.”
Hence, we advise you to take the matter of her preventing you from seeing your daughter to an Islamic court in your country as the court is in a better position to resolve the dispute and give each one his/her right.
If there is no Islamic court, then you should take your case to a scholar who fulfills the requirements for being a judge, and if your wife refuses, then do not divorce her or grant her Khul’ until you ensure your right of seeing your daughter and taking care of her affairs after separating from your wife.
The fact that the custody of the child is for the mother does not mean that she can prevent the husband from seeing his child and the jurists unanimously agreed that both parents have the right to visit his/her children if the custody is for the other parent. Ibn Qudaamah said in his book entitled Al-Mughni: “The parent who has the right of custody has no right to prevent the other parent from visiting the child that is with him/her.”
Therefore, if it is the mother who has the custody of the child, the father has the right to visit his child who is with her without any restrictions on this visit. For more benefit, please refer to Fatwa 84575.
For more information on Khul’, please refer to Fatwa 174941.
Allaah Knows best.
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