Al-Baqarah: (229) Divorce is twice. Then, either keep her...

This is the fourth ruling concerning divorce, which explains Khulʿ (redemption/dissolution of marriage by the wife).

Allah, the Exalted, after commanding that repudiation (Talaq) be accompanied by kindness (Ihsan), clarifies in this verse that part of kindness is that if he divorces her, he should not take back anything he gave her—the dowry (Mahr), clothing, or any other favor bestowed upon her. This is because he possessed her private parts and enjoyed her in exchange for what he gave her; thus, it is not permissible for him to reclaim anything.

This prohibition also indicates that he should not oppress her to force her into redeeming herself (Iftida’), as stated in Surah An-Nisa: {Nor should you detain them [by causing distress] to take [back] some of what you have given them} (An-Nisa: 19).

His statement here, {unless they both fear that they will not uphold the limits of Allah}, is like His statement there: {unless they commit an evident immorality} (An-Nisa: 19). Thus, it is established that committing an evident immorality can be through abusive language or bad character. This is analogous to His statement: {Do not make them leave their homes, nor should they leave, unless they commit an evident immorality} (At-Talaq: 1). Some commentators interpreted the evident immorality here as abusive language toward her family. Also, {Then take nothing of what you have given them, except if they both fear that they cannot uphold the limits of Allah} (An-Nisa: 20), which emphasizes the gravity of taking anything after consummation.

Inquiry: To whom is the address in the statement {And it is not lawful for you to take} directed? If it is to the husbands, then the subsequent phrase {if they both fear that they will not uphold the limits of Allah} does not align. If it is to the Imams and judges, they do not take anything from the women.

Response: Both interpretations are possible. It is permissible for the beginning of the verse to address the husbands, and the end to address the Imams and judges, which is not unusual in the Qur'an. Alternatively, the entire address could be to the Imams and judges, as they are the ones who order the taking and giving back when disputes are brought before them, making them, in effect, the takers and givers.

Regarding Allah’s statement: {unless they both fear that they will not uphold the limits of Allah}, know that after prohibiting the husband from taking anything upon divorce, Allah made an exception for this specific situation, which is the issue of Khulʿ. There are several points within this verse:

1. Majority of Jurists: They hold that Khulʿ is permissible even in the absence of fear or anger.
2. Al-Azhari, An-Nakha'i, and Dawud: They maintain that Khulʿ is only permissible when there is anger or fear of not upholding Allah's limits. If Khulʿ occurs outside these conditions, the dissolution is invalid. Their proof is that the verse explicitly forbids the husband from taking anything upon divorce, then makes a specific exception: {unless they both fear...}. This implies taking is only permissible in the state of fear.

The Majority's Argument: Khulʿ is permissible in both states (fearful and non-fearful). Their evidence is Allah’s statement: {But if they willingly give up to you anything of it of their own accord, then consume it in satisfaction and ease} (An-Nisa: 4). If she is permitted to give up her dowry without receiving anything in return for what she relinquished, then this is even more appropriate in Khulʿ, where she gains ownership of herself. They interpret the word {unless} (illa) as a disconnected exception, similar to {It is not for a believer to kill a believer except by mistake...} (An-Nisa: 92), meaning "but if it is a mistake..."

1. Known Fear: The recognized apprehension of something disliked occurring.
2. Assumption/Conjecture (Dhann): Fear is a specific psychological state caused by the assumption that something undesirable will happen in the future. Applying the name of the effect (fear) to the cause (assumption) is a common metaphorical usage (Majaz). A man might tell another, "Your servant left without permission," and the recipient replies, "I feared that," meaning, "I assumed or suspected that." Al-Farra' cited poetry supporting this metaphorical use.

Furthermore, this interpretation is confirmed by the subsequent verse: {Then if he divorces her, she is not lawful to him afterward until she has married a husband other than him. And if they both think that they will uphold the limits of Allah...} (Al-Baqarah: 230), where the word Dhann (thinking/assuming) is used instead of Khawf (fear).

1. Fear from the Wife Only: This occurs when the wife is rebellious (Nashiz) and detests her husband. In this case, the husband is permitted to take money. Evidence is the narration of Jamilah and Thabit, where her clear hatred permitted the Khulʿ and the taking of the dowry by the Prophet (PBUH).
   • Inquiry: The verse stipulates fear from both. How can we say fear from her alone suffices?
   • Response: Although the initial cause might stem from the wife (e.g., her dislike), it often results in fear from the husband as well. The wife fears disobeying Allah regarding her husband's rights. The husband fears that if he does not comply with her wishes, he might strike her or abuse her beyond what is due, thus exceeding limits. Therefore, fear exists for both. Alternatively, the wife might dislike the husband due to poverty, ugliness, or an off-putting illness. In this case, she fears disobeying Allah by not obeying him, and he fears falling short in fulfilling some of her rights.

2. Fear from the Husband Only: This occurs if he beats or harms her until she agrees to pay compensation (Fidya). This money is Haram (forbidden), based on the beginning of this verse and other verses like {Nor should you detain them to take back some of what you have given them...} (An-Nisa: 19-20), which strongly prohibits taking that money unjustly.

3. No Fear from Either Party: We mentioned that the majority of jurists hold that this Khulʿ is permissible, and the money taken is lawful. Some others say it is forbidden.

4. Fear from Both Parties: This money is also Haram. The verses cited earlier indicate the prohibition of taking that money if the cause stems from the husband, without restricting it to whether the wife was the cause or not. Furthermore, Allah dedicated another verse to this specific situation: {And if you fear dissension between the two [of them]} (Al-Baqarah: 230), in which He did not mention the permissibility of taking money.

This outlines the four divisions. Know that what we have discussed regarding these divisions pertains to the relationship between the individuals and Allah (the spiritual/legal accountability). As for the apparent ruling (fi al-ẓāhir), it is permissible, according to the jurists.

The author of Al-Kashshāf explains Hamzah's reading by suggesting that {ألا يقيما} (that they will not uphold) is substituted for the pronoun referring to the two of them (as a badal ishtimal—substitute of inclusion), meaning: "They feared the abandonment of upholding Allah's limits." This meaning is reinforced by Abdullah's recitation {إلا أن يخافوا} (unless they fear—plural) and the subsequent verse {If you fear} (plural), where the fear is attributed to others.

The general reading (active voice) attributes the fear to both parties, as we explained: the wife fears temptation against herself, and the husband fears that if she does not obey him, he might transgress against her.

• View 1 (Al-Sha'bi, Az-Zuhri, Al-Hasan al-Basri, 'Ata', Tawus, and 'Ali ibn Abi Talib): It is not permissible to take more than what was given to her (the Mahr). Sa'id ibn al-Musayyab said even less than what was given, such that the excess remains with the husband.
  • Evidence:
    • Qur'an: {And it is not lawful for you to take anything of what you have given them}, followed by {Then there is no blame upon them for what she redeems herself with} (Al-Baqarah: 229). This implies the redemption must relate to what was given.
    • Hadith: When Thabit asked for the garden back, Jamilah offered more, but the Prophet (PBUH) said, "Not the garden only." If taking more were permissible, the Prophet (PBUH) would not have restricted her.
    • Analogy (Qiyas): Since he is taking back a part of her value, taking more than he gave would be an injustice (Iḥjāf) to the wife, which is impermissible.

• View 2 (Other Jurists): They permit Khulʿ for more, less, or the same amount.
  • Evidence: Khulʿ is a contract of exchange (Mu'awada), so it should not be restricted to a specific amount. Just as a woman can refuse marriage unless the dowry is high, the husband can refuse Khulʿ unless the compensation is high, especially since she has shown contempt for him by displaying her hatred. This is supported by the narration that 'Umar (RA) confined a rebellious woman to a dung house for two nights. When he asked how she was, she replied she had never slept better. 'Umar then said, "Dissolve the marriage with her, even for her earring." Ibn 'Umar also did not object when a woman divorced her husband by giving up everything except her undergarment.

• View 1: It is an Irrevocable Divorce (Talaq Ba'in): This is the view of 'Ali, 'Uthman, Ibn Mas'ud, Al-Hasan, Ash-Sha'bi, An-Nakha'i, 'Ata', Ibn al-Musayyab, Shurayh, Mujahid, Mak'hul, Az-Zuhri, Abu Hanifa, and Sufyan, and one of the two opinions of Ash-Shafi'i.
  • Argument: The Ummah agrees it is either a dissolution or a divorce. If it is not a dissolution, it must be a divorce. If it were a dissolution, it would not be valid for an amount exceeding the named dowry, similar to the cancellation of a sale (Iqalah). Also, if it were a dissolution and no dowry was mentioned, the dowry should become obligatory (like the price in Iqalah), but since this is not the case, it proves Khulʿ is not a dissolution, hence it is a divorce.

• View 2: It is a Dissolution (Faskh): This is the view of Ibn 'Abbas, Tawus, 'Ikrimah, the second opinion of Ash-Shafi'i, Ahmad, Ishaq, and Abu Thawr.
  • Argument 1: Allah mentions Khulʿ first: {if they both fear that they will not uphold the limits of Allah, then there is no blame upon them for what she redeems herself with}, and then mentions divorce: {Then if he divorces her, she is not lawful to him afterward until she has married another husband} (Al-Baqarah: 230). If Khulʿ were a divorce, divorce would become four times (three standard divorces plus Khulʿ), which is not the case. (This reasoning is cited by Al-Khattabi from Ibn 'Abbas).
  • Argument 2: The Prophet (PBUH) permitted Thabit ibn Qays to seek Khulʿ even if the wife was menstruating or in a period following intercourse (when divorce is forbidden). If Khulʿ were a divorce, the Prophet (PBUH) should have investigated the situation. Since he permitted it unconditionally, it proves Khulʿ is not a divorce.
  • Argument 3: Abu Dawud narrated from 'Ikrimah, from Ibn 'Abbas, that when the wife of Thabit ibn Qays sought Khulʿ, the Prophet (PBUH) set her waiting period (Iddah) as one menstrual cycle. Al-Khattabi states this is the strongest proof that Khulʿ is a dissolution, not a divorce, because Allah states: {Divorced women shall wait by themselves for three periods [of purity]...} (Al-Baqarah: 228). If she were divorced, her waiting period would not be limited to one cycle.

Regarding Allah’s statement: {These are the limits of Allah}, the meaning is that what was previously mentioned regarding the rulings of divorce, returning [to the wife], and Khulʿ—{so do not transgress them}, meaning do not exceed them. After this firm prohibition, He follows it with a warning: {And whoever transgresses the limits of Allah, then those, they are the wrongdoers}.

There are several interpretations for mentioning "wrongdoers" here:

1. It is mentioned in other verses with {May the curse of Allah be upon the wrongdoers} (Hud: 18). Mentioning "wrongdoers" here implies the occurrence of the curse.
2. The term "wrongdoer" (Ẓālim) is a name of censure and humiliation, so applying this term serves as a threat.
3. Allah used the term "wrongdoing" to indicate that the person wrongs himself by committing disobedience. He also wrongs others, such as if the wife does not complete her waiting period, conceals a pregnancy, or if the husband fails to maintain kindness or separation with kindness, or takes from her dowry without justification (i.e., without her rebellion). In all these cases, he is a wrongdoer to others. Therefore, using the term "wrongdoer" indicates he is wronging both himself and others, which carries the greatest threat.

{Then if he divorces her, she is not lawful to him afterward until she has married a husband other than him. And if they both think that they will uphold the limits of Allah, then there is no blame upon them for returning to each other. And these are the limits of Allah, which He makes clear to a people who know.} (Al-Baqarah: 230)