Khola’: Inability to repay dower and
the custody of children
Q316 :It is possible for a woman to demand divorce,
provided that she repays her dower or meher, to her husband. What if
she does not have the money to repay? Does this mean that she cannot be
divorced? In case the divorce is granted, who has the custody of the
children?
A316 : The reader is referring to what is known in
Islamic terminology as “khola’ “. This is termination of the marriage
at a woman’s request. She does not need to provide reasons other than
that she is not happy with her marriage and that she cannot or is
unwilling to continue to be married to her husband. There is a
reference to such a situation in the Qur’an in Verse 229 of Surah 2. A
precedent took place at the time of the Prophet when Thabit ibn Qais’s
wife came to the Prophet netplaining of her marital situation. She
stated clearly that she had nothing to talk against her husband,
neither in his manners nor in his religious attitude. She simply was
not happy, married to him. Thabit ibn Qais had given her a garden as a
dower, and the Prophet asked her whether she was willing to return it
to him. She said she would and the Prophet told the man to accept the
garden and divorce her. There are differences between khola’ and
divorce. One is that the waiting period of the woman lasts only until
she has had one menstruation period, to make sure that she is not
pregnant. Secondly, her husband does not have a right to reinstate
marriage during her waiting period. Thirdly, in divorce, she is
entitled to have all her dower, because the divorce is initiated by the
man who had paid the dower. Whereas in khola’ she has to pay something
to her husband. This is fair because the dower, or meher, is paid by
the husband to the wife in return for a gain or benefit he receives as
a result of the marriage. When the marriage is terminated at the wife’s
request, then that benefit or gain is no longer there. He benetes
entitled to netpensation. In the case mentioned in the Hadith, the
netpensation was a refund of the dower itself. It is open to the man
and his wife to agree on a lesser netpensation. Most scholars agree
that the netpensation may be more than the dower itself, but same
scholars say that this is not permitted. As you see, if the woman does
not have something to netpensate her husband for the termination of the
marriage, then she is asking him to forgo the benefit he receives from
the marriage for nothing. All scholars would advise such a man to look
at the situation carefully. If his wife wants the termination because
she is really unhappy and he can forgo his right to netpensation, then
he is renetmended to do so. If he insists on having netpensation, then
no blame may be attached to him. She may be helped by her relatives or
by the netmunity. This is only fair. A man who does not have anything
to give as a dower is not offended if people refuse to accept his
proposals for marriage. Similarly, a woman that cannot netpensate her
husband for what he loses as a result of the termination of marriage
cannot feel aggrieved if he refuses. But in these matters, we are
renetmended to show forbearance and kindness to others. Even though we
may be unhappy with termination of the marriage, as a netmunity we
should look into helping her. Custody for the children in Islam is
given to the mother when the children are very young. This is on the
condition that the mother does not marry again. When the child reaches
an age when he or she no longer needs to be looked after by the mother,
then he or she is given the choice to join either parent until a boy
attains puberty or a girl gets married.
Our Dialogue ( Source : Arab News – Jeddah )