Is the woman who seeks a divorce (khula) from her husband without a legitimate reason a sinner?

 

Author: Shaykh 'Abdul 'Azeez bin 'Abdullaah bin Baaz (:rahimahullah:)

Source: Al-Fataawa

The questioner asks: If the woman seeks a divorce (khula) from her husband without a legitimate reason and the husband refuses that request, is she a sinner as a result?
The Shaykh (:rahimahullah:) replied: If the woman has no legitimate reason, then the husband is not obligated to respond to that request of divorce (khula), but it is also necessary for him to seek out those things which will bring about harmony and love (in the relationship) and to rid it (the relationship) of those things that will lead to divorce. Because it could be that she has some legitimate reasons.
So it is necessary for him to take notice of this because she could have a legitimate reason either because of his bad character or stinginess or staying out all night or coming home in the late hours of the night or for reasons other than this. So it is binding upon him to observe these things and to fear Allaah in order that he gives the woman her due right.
As for her, then it is not permissible for her to seek a divorce (khula) except with a legitimate reason. As it comes on the authority of the Messenger (:salallaahu alaihe was sallam:) that he said:

“Any woman who seeks a divorce (khula) without a legitimate reason, she will not smell the fragrance of Paradise.” (Bukhaari)

And that is a severe threat. So, it is incumbent upon the woman that she live with her husband in kindness and that she listens and obeys him in that which coincides with the Book of Allaah and the Sunnah of His Messenger and not to seek a divorce from her husband except with a valid excuse.
And if there is a legitimate excuse, then there is no problem with that. For example: he is stingy, which would not allow him to give her the rights that are due to her or if he is immersed in sin and disobedience like getting drunk or high (on drugs) or other than that or he stays out all night all the time or he makes her life very constricted or reasons other than this that are legitimate, then it is an excuse that is regarded and honored.
Or it could be from the fact that she may hate him a lot and the fact that Allaah has not placed love in her heart for him and she cannot respect his rights as a result of her hatred of him, then there is no harm in her seeking a divorce. So, in turn she does not commit sin by not giving him his rights. And if she seeks a divorce from him, then she is to return to him his mahr (dowry) that he gave to her at the time of marriage and that which he gave her to prepare for marriage (gifts and clothes and the funds needed for the walimah).
And if her reason for divorce was from the fact that she hated him then it is to give him what he gave her as a mahr and from what he gave her from gifts other than the mahr.
So, if the reason for her seeking a divorce is because he doesn’t give her that which is her right or he is stingy regarding her necessities or he stays out all night and he does not come home to her except in the late hours of the night and he is tired or because he engages in getting drunk or high then these are legitimate reasons for a request of divorce and if he refuses, then she should take him to the Muslim courts so that they can look into his affair.
As for the one who does not pray, then it is not permissible for her to remain with him because abandoning the prayer is kufr (disbelief) and refuge is sought with Allaah. And that is because the prayer (salaat) is the pillar that keeps the religion erected, so if the husband abandons the prayer then this becomes a legitimate excuse for the woman to refuse to be with him. And it is not permissible for him to be together with her, not until he repents to Allaah from this abandonment of the salaat based upon the statement of the Messenger (:salallaahu alaihe was sallam:):

“The covenant between us and them is the salaat. So whoever abandons it has disbelieved.” (Ahmad, Tirmidhee, Nasaa’ee)

And also his statement:

“The head of the affair is Islaam and its central pillar is the salaat.” (Ahmad, Tirmidhee)

And likewise he (:salallaahu alaihe was sallam:) said:

“Between a man and disbelief and shirk is the abandonment of the salaat.” (Muslim, Abu Dawood, Nasaa’ee)

So this shows that the salaat is a magnificent affair and it the pillar of Islaam and it is the first thing that the slave will have to account for on the Day of Judgment from his actions.
So, it is incumbent upon every believing man and believing woman or any individual who proclaims Islaam to fear Allaah and safeguard his prayers at their proper times and to establish them in congregation with the Muslims in the masjids because not doing so is disobedience and sin and the fact that he prays them in the house is also disobedience and not kufr (disbelief).
But the fact that he abandons them altogether, then this is disbelief even if he does not initially reject the fact that they are waajib (mandatory) and that is in light of the most correct view of the two positions of the scholars.
And as for the one who rejects the fact that they are waajib (mandatory) then he is a disbeliever by the consensus of the Muslims and likewise the one who rejects the fact that salaat is mandatory or fasting the month of Ramadhaan or zakat or anything from that which is known in the religion as a necessity, then he is a kaafir (disbeliever) as a result and Allaah’s safety is sought.