‘Mahr’ is commonly used to refer to the wealth given by a husband to his wife as part of the marriage contract. Many clerics WRONGLY claim that if the wife initiates the divorce process, she must pay this back to the husband, a ransom for her freedom.
They use a verse in Surah Al Baqarah (229):
الطَّلَـقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَـنٍ وَلاَ يَحِلُّ لَكُمْ أَن تَأْخُذُواْ مِمَّآ ءَاتَيْتُمُوهُنَّ شَيْئًا إِلاَّ أَن يَخَافَآ أَلاَّ يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلاَّ يُقِيمَا حُدُودَ اللَّهِ فَلاَ جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللَّهِ فَلاَ تَعْتَدُوهَا وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَأُوْلَـئِكَ هُمُ الظَّـلِمُونَ
229. The divorce is twice, after that either you retain her on reasonable terms or release her with kindness. And it is not lawful for you (men) to take back (from your wives) any of what you gave them (the Mahr, bridal-money given by the husband to his wife at the time of marriage), except when both parties fear that they would be unable to keep the limits ordained by Allah. Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back. These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are the wrongdoers.
and put it together with this hadith from Sahih Al Bukhari.
عن ابن عباس: أن امرأة ثابت بن قيس بن شماس أتت النبي صلى الله عليه وسلم فقالت : يا رسول الله ، ثابت بن قيس ما أعتب عليه في خلق ولا دين ، ولكني أكره الكفر في الإسلام . فقال رسول الله صلى الله عليه وسلم : أتردين عليه حديقته ؟ قالت : نعم ، قال رسول الله صلى الله عليه وسلم : اقبل الحديقة وطلقها تطليقة
This is usually wrongly used as evidence to claim that if the woman wants to initiate divorce, she must pay back the mahr. It is usually translated inaccurately (You can find the incorrect version easily – just do a search online) and the reason WHY she gives it back is completely overlooked.
However, the CORRECT translation is:
The wife of Thaabit bin Qais came to the Prophet and said:
Oh Messenger of Allah, I don’t find defects in Thaabit’s religion or manners but I hate the disbelief in Islam. So, the Messenger of Allah said, ‘Will you return to him his garden?’. She said, ‘yes’. The Messenger of Allah said, ‘Accept the garden and divorce her once’.
So, the woman gave back the garden/Mahr because Thaabit was not a believer in Islam.
Now, when this hadith is translated correctly and in its complete version, it is in accordance with the Quran that the woman returns the ‘mahr’ if her husband is a disbeliever.
The Quran clearly states this in Surat Al Mumtahina, verses 10 and 11:
يأَيُّهَا الَّذِينَ ءَامَنُواْ إِذَا جَآءَكُمُ الْمُؤْمِنَـتُ مُهَـجِرَتٍ فَامْتَحِنُوهُنَّ اللَّهُ أَعْلَمُ بِإِيمَـنِهِنَّ فَإِنْ عَلِمْتُمُوهُنَّ مُؤْمِنَـتٍ فَلاَ تَرْجِعُوهُنَّ إِلَى الْكُفَّارِ لاَ هُنَّ حِلٌّ لَّهُمْ وَلاَ هُمْ يَحِلُّونَ لَهُنَّ وَءَاتُوهُم مَّآ أَنفَقُواْ وَلاَ جُنَاحَ عَلَيْكُمْ أَن تَنكِحُوهُنَّ إِذَآ ءَاتَيْتُمُوهُنَّ أُجُورَهُنَّ وَلاَ تُمْسِكُواْ بِعِصَمِ الْكَوَافِرِ وَاسْـَلُواْ مَآ أَنفَقْتُمْ وَلْيَسْـَلُواْ مَآ أَنفَقُواْ ذَلِكُمْ حُكْمُ اللَّهِ يَحْكُمُ بَيْنَكُمْ وَاللَّهُ عَلِيمٌ حَكِيمٌ – وَإِن فَاتَكُمْ شَىْءٌ مِّنْ أَزْوَجِكُمْ إِلَى الْكُفَّـرِ فَعَـقَبْتُمْ فَآتُواْ الَّذِينَ ذَهَبَتْ أَزْوَجُهُمْ مِّثْلَ مَآ أَنفَقُواْ وَاتَّقُواْ اللَّهَ الَّذِى أَنتُمْ بِهِ مُؤْمِنُونَ
10. O you who believe! When believing women come to you as emigrants, question them; Allah knows best as to their faith, then if you ascertain that they are true believers, send them not back to the disbelievers. They are not lawful for the disbelievers nor are the disbelievers lawful for them. But give them (disbelievers) that which they have spent (on their ‘mahr’). And there will be no sin on you to marry them if you have paid their due to them. Likewise do not keep the disbelieving women, and ask for that which you have spent (on their ‘mahr’) and let them (the disbelievers) ask for that which they have spent. That is the judgement of Allah, He judges between you. And Allah is All-Knowing, All-Wise. 11. And if any of your wives have gone from you to the disbelievers then you succeed over them (gain victory); then pay those whose wives have gone, the equivalent of what they had spent. And have Taqwa of Allah, the One in Whom you are believers.
So, if the wife is divorcing the husband because he is a disbeliever, she must return the ‘mahr’. This is one situation when she will return it.
In Surah An Nisa’a, verses 19 – 21, another situation is mentioned:
يَـأَيُّهَا الَّذِينَ ءَامَنُواْ لاَ يَحِلُّ لَكُمْ أَن تَرِثُواْ النِّسَآءَ كَرْهاً وَلاَ تَعْضُلُوهُنَّ لِتَذْهَبُواْ بِبَعْضِ مَآ ءَاتَيْتُمُوهُنَّ إِلاَّ أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ وَعَاشِرُوهُنَّ بِالْمَعْرُوفِ فَإِن كَرِهْتُمُوهُنَّ فَعَسَى أَن تَكْرَهُواْ شَيْئاً وَيَجْعَلَ اللَّهُ فِيهِ خَيْراً كَثِيراً – وَإِنْ أَرَدْتُّمُ اسْتِبْدَالَ زَوْجٍ مَّكَانَ زَوْجٍ وَءَاتَيْتُمْ إِحْدَاهُنَّ قِنْطَاراً فَلاَ تَأْخُذُواْ مِنْهُ شَيْئاً أَتَأْخُذُونَهُ بُهْتَـناً وَإِثْماً مُّبِيناً – وَكَيْفَ تَأْخُذُونَهُ وَقَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنكُم مِّيثَـقاً غَلِيظاً
19. O you who believe! You are not permitted to inherit women against their will, nor to make things difficult for them in order to get part of (the ‘mahr’) what you have given them, unless they commit open Fahishah. And live with them honorably. If you dislike them, it may be that you dislike a thing and Allah brings through it a great deal of good. 20. But if you intend to replace a wife by another and you have given one of them a Qintar, take not the least bit of it back; would you take it wrongfully without a right and (with) a manifest sin. 21. And how could you take it (back) while you have gone in unto each other, and they have taken from you a firm and strong covenant.
In other words, the wife gives back the mahr if she has cheated (sex outside of their marriage) on the husband (open fahishah means with 4 witnesses or she herself has openly confessed to it).
Despite what many scholars claim, the religion DOES NOT state the wife returns the mahr because she is the one who wants the divorce. Almost amusingly, they even include defiance & disobedience to husband, reviling him & his family as just cause to take back the mahr when the Quran commands the opposite.
The fact of the matter is that she only returns it if she wants a divorce because her husband is a disbeliever or because she has openly cheated on him which is why the initial verse from Surah Al Baqarah mentions ‘the limits ordained by Allah’. Men are commanded very clearly NOT to take back the mahr unless it is one of the 2 situations mentioned.
Firstly, the term ‘Khula’ has no real basis in the religion. In the collection of An Nisa’i, a different version of the hadith above includes the Prophet’s command to Thaabit “خذ الذي لها عليك وخل سبيلها”
which means ‘Take the mahr and leave her to her way’. The word خل (i.e ‘leave/depart’) is where the ‘scholars’ got ’Khula’.
The clerics then took this new invented definition and added to it that if a woman wants a ‘Khula’, she must take the matter to court and the judge(s) will make the decision as to whether her reasons are justified. In other words, they will decide whether she should get a divorce and if granted, she will return the mahr.
Neither the Quran or Sunnah dictates that there is a different way for a woman to initiate divorce (See my blog on Divorce). The entire concept of Khula is a mere reflection of how most societies work – where men have more power and control.
Now, if you have read the opinions of the ‘scholars’ on ‘Khula’, you will already know that they claim the ‘nikah’ (or marital contract is with the husband and because he bears the financial expenses in the relationship, he has more of a right to divorce). So, if the woman wants a divorce, they claim she must ask for ‘Khula’ and pay back the mahr.
They base this on the verse from Surah Al Baqarah (237):
وَإِن طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ إَّلآ أَن يَعْفُونَ أَوْ يَعْفُوَاْ الَّذِى بِيَدِهِ عُقْدَةُ النّكَاحِ وَأَن تَعْفُواْ أَقْرَبُ لِلتَّقْوَى وَلاَ تَنسَوُاْ الْفَضْلَ بَيْنَكُمْ
And if you divorce them before you have touched (had a sexual relation with) them, and you have appointed for them their due (mahr), then pay half of that, unless they (the women) agree to remit it, or he, in whose hands is the marriage tie, agrees to remit it. And that you remit is nearer to At-Taqwa (piety, righteousness). And do not forget liberality between yourselves. Truly, Allah is All-Seer of what you do.
‘Scholars’ claim ‘he, in whose hands is the marriage tie’ is evidence that the marital contract is in the ‘hands’ of the husband so he has more rights. In reality, an understanding of the pronouns used within the verbs indicate it is not the husband but, the woman’s representative (father, brother etc) who is meant here.
The religion is fair because our Lord is Most Just. Women have the same rights to divorce as men do. Anyone who claims differently has obviously not looked at the evidence with an open mind.
-Khula is an invented process.
-The man or any judge cannot take back the mahr (unless one of the 2 situations above is present)
-The man does not ‘own’ the marital contract. Rather, it is a mutual one.
When the divorce process has been initiated 3 times between the same husband and wife, the woman must now marry a different man. The wisdom in this is clear – any marriage which has been turbulent enough to initiate divorce thrice is one which is not working so we are ordered to move on.
Now, I believe it is often human nature to look for loop holes. However, there is a colossal difference between a loop hole and distortion. ‘Halala’ is an innovation and a complete distortion of the laws of Allah (Muslims are twisting the verse from Surah Al Baqarah (230) which you can find in my blog on Divorce).
By distorting the verse, Muslims are following a practice whereby the woman marries someone for the sole purpose of re-marrying her previous husband. There are, in fact, agencies, which for a payment, will marry the woman to a new man who will then have sex with her for one night and then divorce her so she can re-marry her previous husband. This is making a mockery of the institution of marriage and more importantly, the evidence from the Quran.
It is a direct consequence of Muslims following the opinions of scholars. This has led people to divorce in many incorrect ways (i.e. believing that merely uttering the word ‘divorce’ means you are divorced, without witnesses, without an iddah, without due process). Huge misunderstandings and innovations lead us to the completely unislamic and abhorrent practice of Halala.
May Allah guide us back.