Question:

My wife committed adultery with her ex-boyfriend, after that now she is staying at her father’s home with my three children and she wants to live there don’t want to come back and asking for “Khulah” divorce.

1. I am not giving her divorce because of my children, and if i give divorce will it be an act of sin? as divorce discouraged in Islam?

2. What will be the ruling about my children if I divorce her? But every month I am sending money to spend for my children and often pay a visit to spend time with children and in Eid ul Fitr I bring my 3 children to my home to stay with me for a few days, cause I am missing them a lot.

I can’t discuss this issue anyone in my locality that her sin will be known by other people causes lots of people to know me and my wife. So, i want it to be secret “If allah wills”.

3. And what about the amount of “Mahr” which is pending? If she asked for “Khula” should I pay the due money at the time of Khulah or ask her for time to pay or can i ask to leave the due amount of Mahr.

4. I told her to ask Allah for forgiveness cause it is a great sin in Islam, but I don’t know whether she did it or not. But she told me that she still has a strong feeling for his Xboyfriend and don’t have the same feeling for me.

5. And what is the ruling of New Marriage after divorce ? right now I m 39 years old and my mother is living with me and she is in old age and sick, so I need someone to take care of her as I have a daily job to do, so what should I do?

It is difficult for me to continue this relation cause, I can’t believe her anymore. It is almost 5 month and Allah is helping me to keep patience. But I want to give divorce and 20 days back she also asked for divorce and now 2 days back when i told her that I will give you divorce very soon and now she is telling me that she has no hurry.

6. What is best way to give divorce in Islamic way. Though I belong to Hanafi madhab but I follow which more authentic and convincing according to scholar.

Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

I have re-numbered your questions to answer them appropriately.  Before we discuss your questions, please understand that there are different ways of proceeding towards divorce with different consequences. Divorce process initiated by the husband whereby he could either give a revocable divorce, or an irrevocable divorce. In your situation we would be dealing with the first one. This is when you issue a Talāq in explicit terms and then the wife waits in her ʿiddah for three menstrual cycles. Once completed, the divorce is completed. During the ʿiddah period, the husband has the right to take the wife back. However, once that time has passed, they would need to re-enact the nikah to come together.

Another form of divorce proceeding which concern our scenario is Khulaʿ wherein the wife initiates the proceeding by requesting for talāq. Since it is the wife’s desire to be released from wedlock, the husband has the right negotiate this talāq. He may put in the condition that he will issue the talāq if the wife returns the mahr, or the wife relinquish nafaqah (expenses) during the ʿiddah period etc. Once negotiations are completed, the husband will issue one talāq which is constituted as a an irrevocable talāq (al bāʾin). This means that the husband may not take back the wife, and would have to re-marry her with mutual consent should they wish to get back together.

Your questions refer:

1.  Divorce is indeed something undesired and looked down upon. However, that does not mean that someone involved in a toxic relationship has to continue drown in the toxicity just because he does not wish to do something undesirable. Your mental and spiritual health is your religious duty. If you know that this marriage has now broken down, and there is no hope for it to get better, then it is in line with Qur’anic injunctions that you let her go through divorce. This is much better than keeping her in marriage, lingering and not being able to go ahead with the life. In such a case there will be no dislike of the divorce, rather Rasulullah ﷺ has himself instructed Sahabah radi Allahu anhum towards divorcing their wives at times depending on the situation.

2. Since the wife has committed Nushūz (disobedience in marital rights and sin against Allah) she has lost her stature to be able to nurture the children in the best religious manner. Hence the custody of the children flows over to other female relatives of the children (i.e. Maternal grandmother, Paternal grandmother, full sisters, maternal half-sister, paternal half-sister, maternal aunts, paternal aunts in this sequence). If none of these women are found to take care of the children, then you as a father will have the right to take care of them.

• Similarly, you continue to support your children upbringing regardless where or with whom the children end up staying.
• You are not liable to pay any nafaqa (expenses) for the mother due to her nushūz.
• For purpose of this answer we shall assume that all these proceedings are after the wife has sought khulʿ from you. In this case, you have a choice regarding negotiations upon nafaqah and mahr. (refer to #3)

3. Since she is seeking the khulʿ, and she is the one who was at wrong here, it is your right to stipulate return of any previous mahr that may have been given to her. You may also stipulate nafaqah in lieu of the khulʿ. You may choose not to ask for it, but since she is demanding the khulʿ you may negotiate these without any fear of sin. You are not obliged to pay her any mahr.

4. Once the marriage has been terminated, you are to stop your communications and making islāh of her. She is no longer your mahram. Your contact with her should be platonic for the sake of children. You should continue to let the children meet her and spend time with her, but if you feel that her irreligiosity will affect the children negatively, you have the right to limit that as well.

5. You have full and independent right to remarry. Find someone who is mature enough to be able to help you with your mother as well as your children from the previous marriage (if needed). Your first divorce will have no affect on your second marriage as you could marry a second wife even in the presence of the first. If there are any civil-legal aspects attached to the scenario in Bangladesh, then you are better aware of them, however, your second nikah will be sharʿan valid.

6. Under normal circumstances, the best way for you is to give the wife one revocable talaq (al-Rajʿī) by saying “I have given you one talaq al-rajʿī”. Thereafter she will sit for her ʿiddah (mourning period) of three menstrual cycles (haydh). During this time you will not go back to her, or tell her that I wish to take you back into marriage, nor will you engage with any sensual activity indicating that you wish to take her back. Let her pass her ʿiddah, and your divorce will be completed.

• However, in your case she has already initiated Khulʿ by requesting you for a talaq. So, a revocable talaq is not in question. Instead the best route for you is to maturely discuss the divorce terms. Have everything drawn up on the paper with the conditions. The contract will be that of an irrevocable talaq (al-bāʾin) whereby she will sit in her ʿiddah without any recourse to get back with you, unless mutually decided and a new nikah conducted.
• It is a humble advice to be exceptionally prepared in handling your situation. Your interest should be your own wellbeing and the wellbeing of your children. Even if the children stay with another guardian, you should continue to have positive part in their lives. At the same time, you should retain your mental wellbeing as well. Find a partner that will keep you and your family happy.

May Allah assist you in the turmoil and trials that are facing you, Ameen.

And Allah Ta’āla Knows Best

Mufti Faisal bin Abdul Hameed al-Mahmudi
www.fatwa.ca