Conditions of the validity of Khul’
26-4-2013 | IslamWeb
Question:
Assalamualailum, I have few doubts in regards to Khula -Talaq-Marriage. My friend married a girl 3 years back. This was against both the parents wish and knowledge. They both dint tell at their homes regarding their marriage and stayed in their respective parents homes. When the parents came to know about their marriage , the girls father asked his daughter to take the khula which was against her wish and also asked the boy to accept it. Neither the girl nor the boy wanted to get divorced. After few months when the boy rejected the khula request, the girls father involved police and forced the boy to take the khula in the police station. During this time , nor even after the khula which was happened, the boy and the girl never stayed together. I've few questions relating to this topic. 1.Is forced khula taken into account?As khula is valid only with the consent of husband and wife.And also khula can only be requested on valid grounds by the wife. 2.According to Behashti Zewar English translation,it states that if khula is requested at one point in time and it was not accepted by the husband and after a time period it was accepeted then that khula is not valid.Is this true ? 3.If neither the husband , nor the wife wanted to take the khula but it was forced by external factors, then is this khula valid or not? 4.Also there was no contact between the husband and wife, not even after their nikah, nor even after the forced khula they were in touch with each other so that they could rejoin or revoke.Is this valid ? Please Advise.
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.
First of all, if this marriage took place without the consent of the Wali (the woman's guardian), then this is a void marriage because the consent of the Wali is a condition for the validity of the marriage according to the most preponderant opinion of the scholars as we clarified in Fatwa 83629.
Therefore, this girl is not Islamically considered a wife to that man, and the separation in such a marriage can either be by the husband issuing divorce to his wife, or, if he refuses, the judge invalidates his marriage. For more benefit, please refer to Fatwa 92478.
With regard to the questions which you asked about a forced Khul’, then the answer in general will be as follows:
The consent of both spouses is a necessary condition for the validity of Khul’, and if Khul’ takes place under compulsion, the Khul’ is not valid. The compulsion that should be taken into account is the compulsion that makes the person do what he is forced to do, and this kind of compulsion comes from a person who could execute it, while one predominantly thinks that it will be carried out if he does not respond to such a threat; also the person is to be threatened by something by which he will be greatly harmed, like being killed, beaten or imprisoned for a long time...etc.
It should be mentioned here that the wife is not permitted to ask for Khul’ except for a sound Islamic reason, but if she asks for Khul’ without a sound reason and the husband accepted it with his own free will, then Khul’ takes place and it is valid. This is the answer for your first and third questions.
As regards the second question, what you have read is correct, as there should be a continuation [i.e. no interruption] between the request of Khul’ and accepting it; as the jurists, when speaking about the wording of Khul’, stated that it is a condition that no irrelevant words should be said between requesting the Khul’ and accepting it.
As regards the fourth question, it is not clear to us. In any case, what we can say is to confirm what we have already mentioned that Khul’ when being forced does not take place. The fact that there was no sexual intercourse does not affect the validity of Khul’ if it had taken place in a valid manner, nor does it affect its invalidity if it was void.
Allaah Knows best.