Inhibitors of Khul` (divorce initiated by a wife for a consideration) and their proofs

The permissibility of Al Khul` (divorcing one's wife in return of money (which she pays)) and the wisdom of legislating it.

• Bakr ibn `Abdullah Al Muzany disagreed the consensus of jurists when he adopted the view of the impermissibility of Al Khul` and held the following Ayahs and Hadiths as proofs:

First, proofs from the Glorious Qur'an:

• He used the following Ayah to sustain his view. Allah (may He be Exalted) says: "But if you intend to replace a wife by another and you have given one of them a Qintâr (of gold i.e. a great amount as Mahr) take not the least bit of it back; would you take it wrongfully without a right and (with) a manifest sin?" [Surat An-Nisa': 20].

The holder of this view claims that the previous Ayah abrogated the following Ayah: "Then if you fear that they would not be able to keep the limits ordained by Allâh, 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)." [Surat Al Baqarah: 229].

It was reported that he was asked about a man who wanted to divorce his wife through Khul`, and he said: It is not permissible for him to take anything from her. Somebody asked: Where is Allah's Saying: "Then if you fear that they would not be able to keep the limits ordained by Allâh, 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)." [Surat Al Baqarah: 229]?

He said: It was abrogated by Allah's Saying: "But if you intend to replace a wife by another and you have given one of them a Qintâr (of gold i.e. a great amount as Mahr) take not the least bit of it back; would you take it wrongfully without a right and (with) a manifest sin?" [Surat An-Nisa': 20].

This view can be refuted because it lacks an evidence to abrogation. The issue of abrogation cannot be taken for granted before the impossibility of combining between the two Ayahs and proving that the abrogating Ayah was revealed after the abrogated, which has not been ascertain yet[1].

Second, proofs from the Sunnah:

•  The holder of the view used some Hadiths to prove his point of view, which are as follows:

1- The Hadith of Thawban who said that the Messenger of Allah (peace be upon him) said: "Any woman who asks her husband for a divorce when it is not absolutely necessary, the fragrance of Paradise will be forbidden to her.'''[2]

2- The Hadith of Abu Hurayrah who narrated that the Prophet (peace be upon him) said: "Woman who seek divorce are hypocrites."[3]

• These proofs can be refuted as follows: The first Hadiths speaks about threat which is limited to the demand of the wife for divorce without legal reason. There is no doubt that a woman who asks for divorce has a good reason to do so otherwise she deserves the threat mentioned in the Hadith. However, if a wife has a good reason to ask for divorce, she may do so.

Imam Ibn Hajr said: News reported about intimidation given to women who ask for divorce are for those who ask it without reason because of the Hadith of Thawban which reads: "Any woman who asks her husband for a divorce when it is not absolutely necessary, the fragrance of Paradise will be forbidden to her."[4]

The second Hadith is refuted because its chain of transmission is not good where Imam At-Tirmidhy commented on it by saying: Hadith Gharib (a Hadith with a single narrator usually at the beginning of the chain of narration) and has no good chain of transmission.[5] Moreover, Imam Al Hasan Al Basry considered it invalid, so it cannot be held as a proof[6].