It is permissible, for in their view no divorce can be effected on his behalf; and Allah knows best.
With regard to a woman who is terminally ill, Mālik rules that khulʿ is valid provided the amount given to the husband does not exceed the share he would have inherited from her. Ibn Nāfiʿ reports from Mālik that she may ransom herself with the whole of the one-third portion of her estate.
Al-Shāfiʿī states that if she ransoms herself with a sum equal to the customary dower of women of her standing, the khulʿ is valid and that sum is taken from the principal of her estate; any excess must come from the one-third.
As for a neglected woman who has neither guardian nor father, Ibn al-Qāsim says that her khulʿ is valid so long as it is for an amount customary for someone like her. The majority hold that a woman who controls her own property may effect khulʿ independently, whereas al-Ḥasan and Ibn Sīrīn dissented, maintaining that khulʿ is not valid without the ruler’s permission.
Section Three
On the Legal Classification of Khulʿ
Concerning its nature, the majority of scholars regard khulʿ as a divorce; this is the view of Mālik, and Abū Ḥanīfah, who makes no distinction between divorce and annulment (faskh). Al-Shāfiʿī, however, considers it an annulment, as do Aḥmad, Dāwūd, and—among the Companions—ʿAbdullāh ibn ʿAbbās. A further report from al-Shāfiʿī treats khulʿ as a euphemism: if the husband intends divorce by it, it counts as such; otherwise, it is an annulment. According to another, later opinion of his, it is a divorce.
The practical consequence of this distinction is whether or not khulʿ counts toward the allowable number of divorces. Most of those who deem it a divorce classify it as irrevocable (bāʾin), for if the husband retained the right to take her back during the ʿiddah, her ransom would serve no purpose. Abū Thawr held that if khulʿ is concluded without the explicit word “divorce,” the husband has no right of return; if that word is used, he does.
Those who classify khulʿ as a divorce argue that annulments apply only to separations that deprive the husband of choice, whereas khulʿ rests on his volition and therefore cannot be an annulment. Those who regard it as an annulment reply that Allah—exalted be He—says, “Divorce is twice” (al-Baqarah 2:229), then mentions ransom, and afterwards says, “If he divorces her, she is not lawful for him thereafter until she marries another husband” (al-Baqarah 2:230). Had the ransom itself been a divorce, the divorce after which she could not return to him except after marrying another would have been the fourth, not the third.
According to this second camp, annulments can occur by mutual consent, by analogy with the mutual rescission of a sale (iqālah). Their opponents contend that the verse merely attaches the ruling of ransom to every form of divorce and does not treat it as something distinct from divorce.
Thus the crux of the dispute is whether the presence of a consideration alongside this separation removes it from the category of divorce and places it under annulment, or not.
Section Four
Ancillary Rulings Related to Khulʿ
Its consequential rulings are numerous; we shall mention the most renowned. One question is whether a further divorce attaches to a woman who has undergone khulʿ.
Mālik says that an additional divorce attaches only if the words are uttered consecutively. Al-Shāfiʿī says it does not attach, even when the statement is continuous. Abū Ḥanīfah maintains that it does attach and makes no distinction between immediacy and delay.
The basis of the disagreement is that the first group views the waiting period (ʿiddah) as one of the rulings of divorce, whereas Abū Ḥanīfah sees it as stemming from the marriage itself; therefore, in his opinion it is impermissible to marry the sister of a woman who has been finally divorced (mabtūtah) while she is still in ʿiddah. Thus, whoever regards the ʿiddah as a consequence of marriage holds that a further divorce attaches, whereas whoever