Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh.  (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

Is a Khula valid if the woman was on her mense, and if the woman refused to give back the dowry. Is she still considered married until the dowry is given back since she refuses to do so? Along with that,if the khula was invalid, and now the woman wants to return to her husband, must they perform another Nikah ceremony, or do they just continue as being married as before? 

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Answer:

When Khula becomes invalid

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is no one (no idol, no person,  no grave, no prophet,  no imam,  no dai,  nobody!) worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verse 229:

229    A divorce is only permissible twice: after that the parties should either hold together on equitable terms, or separate with kindness.  It is not lawful for you (men) to take back any of your gifts (from your wives) except when both parties fear that they would be unable to keep the limits ordained by Allah.  If ye (Judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah; so do not transgress them.  If any do transgress the limits ordained by Allah such persons wrong (themselves as well as others).

The literal meaning of the term ‘Khlia’ itself is that which is given in exchange for something; and when the term is used in Islamic Jurisprudence it means when a wife initiates a separation from her husband, and in the absence of the man declaring the divorce on his wife, the wife moves the Shariah Court to declare a divorce. 

If the wife convinces her husband to release her from the marriage tie, all the husband has to do is declare a divorce, and after the waiting period or ‘iddah’ of divorce is over, the divorce will be established.  This will be considered a ‘talaq’ and the wife is not required to return the ‘mehr’ amount back to her husband.

Only in the cases where the wife seeks separation but the husband refuses to release his wife from the marriage, the wife would initiate a divorce proceeding in a Shariah Court and the Shariah Judge would declare a ‘Khula’ divorce between the husband and the wife, on the condition that the wife returns back the ‘mehr’ or dower gift she received from her husband at the time of marriage.

Your Question: Is a Khula valid if the woman was on her mense

If it so happens that the Shariah Judge declares the ‘Khula’ divorce between the couple, regardless of whether the woman is in her menses during that particular time or not, the divorce will be established in the Sight of Shariah. 

Your Question: and if the woman refused to give back the dowry. Is she still considered married until the dowry is given back since she refuses to do so?

One of the obligatory conditions of ‘Khula’ is that the woman is obligated to return the dower gift she received at the time of her marriage back to her husband; unless of course, if the husband of his own free will wishes to forego it. 

The Shariah Judge, before he declares the ‘Khula’ divorce between the couple is required to and will always take confirmation from the wife regarding her intention to return the dower gift; and only after he has taken the confirmation, if not witnessed the return of dower himself, will he pronounce the ‘Khula’ divorce.

At the time of ‘Khula’ the woman is obligated by law to return her ‘mehr’ back to her husband, and if she refuses to do so, it will remain a debt upon her until she pays it.

Once the Judge declares the ‘Khula’ divorce, the divorce will be established in the Sight of Shariah.  And if for any reason, the woman turns back on her word and confirmation regarding the return of her dower gift, the divorce, although established will not be finalized until she returns the dower gift.  Unless and until she returns the dower, neither can one say with conviction that the couple’s divorce is finalized, nor can one say with conviction that they are still married; but it will be considered a matter which ‘hangs’ in between! 

As soon the Shariah Judge declares the ‘Khula’ divorce, all the limitations of divorce will be established upon the couple, even if the woman has now gone back on her word and confirmation regarding the returning of her dower gift.

Your Question: Along with that,if the khula was invalid, and now the woman wants to return to her husband, must they perform another Nikah ceremony, or do they just continue as being married as before? 

If the man has declared the first or second divorce from his total of three divorces in any one marriage, and the couple change their mind and wish to remain together, all the man has to do is take his wife back before the expiry of the ‘iddah’ or waiting period and there is absolutely no need or obligation to perform a new ‘Nikaah’.

But if the woman had initiated the divorce proceedings in a Shairah Court, and it was the Shariah Judge who granted and declared her the divorce, the man does not have to take his wife back during the ‘iddah’ period.  If the woman changes her mind and wishes to rejoin her husband in marriage, it would be obligatory for them to perform a brand new ‘Nikaah’ with a brand new ‘mehr’.

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone.  Allah Alone Knows Best and He is the Only Source of Strength.

Your brother and well wisher in Islam,

Burhan