Arab News Staff

Q. Could you please explain whether khula’ can be initiated by a woman only if the husband refuses to divorce her? What if she begins the process without first requesting divorce? If the couple have a young child, who takes custody of the child? If the father is in the habit of drinking, could the mother get custody on a permanent basis? Are Islamic rules on this matter the same in all Muslim countries, or do they differ? Can cases like these be settled in one’s place of residence, which is not in the country of one’s nationality? May I also ask whether Hadi is a suitable name for a boy?

F.Q.

A. The khula’ denotes the termination of marriage at the wife’s request. She does not have to present a case of an unsuccessful marriage in order to start the relevant proceedings. It is sufficient that she feels that she cannot continue with the marriage. When a woman companion of the Prophet asked him to end her marriage to her husband, the Prophet spoke to him pointing out that she was unwilling to continue as his wife. The Prophet did not take issue with the man about anything he did or did not do. In some reports, the woman says clearly that she did not take anything against her husband with regard to his behavior, manner or religious commitment. She simply did not feel that the marriage gave her any fulfillment. The khula’ does not have anything to do with the man’s attitude to the termination requested by the wife. It is simply one of the wife’s rights under the marriage contract. Just like the divorce right is given to the man, which allows him to terminate the contract at his own behest, the woman is given the same right through khula’.

The khula’ is a process in which the woman has to forfeit some of her rights under the marriage contract. She has to repay any dowry she received from her husband. In divorce, she receives any outstanding part of her dowry. Here the reverse is true. But this is only fair, because in all cases of marriage termination under Islamic law, the man is the loser financially because he has to pay the outstanding dowry and his wife’s maintenance during her waiting period. He also has to support his children when they are in her custody. He then pays the expenses of a new marriage, if he desires one. Hence, when the woman wants the termination, she forfeits her dowry.

If the woman has a strong case for divorce, as in the case of being abused by her husband, and he refuses to divorce her, she may file proceedings for divorce on the grounds that she is subjected to abuse. This is a totally different case, in which she has to prove her case. If proven, a divorce ruling is given by a judge in her favor and she is entitled to all the rights of a divorcee. Normally, divorce or khula’ proceedings could be started in one’s country of residence, but this needs to be confirmed by the parties concerned. They should ask a lawyer in that country. It is always better to learn one’s rights under the law before starting any legal proceedings.

The custody of children is a totally different matter. It is automatically given to the children’s mother when the children are very young, until they are able to look after themselves in matters of eating, dressing, bathing, etc. After that, the children are given a choice, which is not permanent. A child may choose to be with his father or mother at any time, and then the child may change its mind once or twice or any number of times. But their living expenses are borne by the father. The mother remains in custody of her children unless she gets married to someone else. In this case, she forfeits her custody rights which are then given to her mother.

This is something in which Islam is unique. Custody is not given to the father unless there are no women to take care of the children. The order of custody is thus: the children’s mother first, then her mother, then the father’s mother. We then have the children’s sister, if she is old enough to look after them, then the mother’s sister, then the father’s sister, etc.

This is the situation under Islamic law, but what different countries apply may be totally different. One has to look for the relevant legislation of one’s own country. If a father claims custody under the law in his own country and he is known to be a drunken person, there may be room for depriving him of any rights of custody. Needless to say, this is much easier in a country which applies Islamic law than under a man-made law.

The name Hadi is suitable for a boy. It means a “person who guides to the right course.”