dr. Saleh Al-Marfadi – Difference between annulment due to hatred and khul’ in Yemeni law??

# smoothly, smoothly:
It is true that this question is always repeated, and it is asked by many who are interested in jurisprudence and legal affairs.. and this time this question was placed in one of these groups.. In this regard, I had to make my own statement, and in conclusion, this is my diligence. He can agree or disagree with my opinion.. If I do good, it is from God, and if I do wrong or sin, then it is from me and the devil. In order to clearly and transparently present the topic of conversation, we must present Sharia and legal texts related to the topic:

# Legal text:
– Legal text: Hadith of Abdullah Ibn Abbas, that the wife of Sabit bin Qais came to the Prophet, may God bless him and grant him peace, and said: “O Messenger of God, I do not blame Sabit bin Qais in morals or religion, but I hate infidelity in Islam.” God’s Messenger, peace be upon him, said to her: “Will you give him back his garden?” She said: “Yes, and increase it. He, peace be upon him, said: “As for the increase, no, and he said to Thabit: (Take the garden and divide it one by one).
Legal text: Article (54) stipulates the following: “If the wife requests a verdict of annulment due to dislike, the judge must examine the reason, and if it is proven to him, he appoints an arbitrator from the husband’s family and an arbitrator from her family to reconcile them, otherwise he orders the husband to divorce, and if he refuses, he decides on annulment, and she must return the dowry.” Regarding divorce provisions in Yemeni law, Article 72 stipulates the following: “Divorce is the separation of spouses, in exchange for compensation from the wife or someone else, money or benefit, even if it is more than what is required by the contract or is unknown .” Article (73) stipulates the following: “Divorce comes by mutual agreement between the spouses or what is proven by the contract, whether it is a condition, and what is required in divorce is that the wife disposes of the compensation.” Regarding the article ( 74), it reads: “Irrevocable, irrevocable, minor divorce is considered a divorce, unless it is a supplement of three, irrevocable and major irrevocable, and the supplement must be fulfilled in dislocation.”

# Rooting and analysis of two texts:
And by careful rooting and analysis of Sharia and legal texts, it becomes clear that there is no difference between the annulment of hatred and khul’ in terms of their cause, for the following justifications:
– First: The cause (hatred) fulfilled as a comprehensive criterion between the legal text and the legal text, although the effect of the application of the two legal texts (Art. 54 and Art. 72 et seq.) differs, but the reason for divorce is one, presented ( hatred).

– Second: Neither earlier nor later books of Islamic jurisprudence mention the reason for annulment of marriage under the name (annulment due to hatred!!), except for the late mention of the eminent scholar / Muhammed bin Yahya Al-Mutahhar, one of the legislators of the Yemeni Law on Personal Status..

Third: To increase the details, we find that the terms and terminology mentioned in the text of Article (54) are personal statuses, their legal origin is in the well-known hadith about “dislocation” (from the woman Thabit bin Qais) .. and since it is the basis and reason for annulment in this hadith of the divorced woman’s statement to the Prophet (R), in a clear statement: (I do not blame him for morals or religion, but I hate infidelity in Islam.) ).

– Fourth: The Yemeni legislator took the opinion of some scholars in determining the ruling on khul’, because it is annulment, not divorce, (which is the most correct opinion, in my opinion!); Therefore, the abolition of hatred prescribed by Yemeni law is considered a judgment of judicial dislocation, and I repeat in terms of reason!!

Fifth: The Prophet, may God bless him and grant him peace, did not clearly investigate the hadith of the wife of Sabit bin Qais about the reasons for her request for divorce, and was satisfied with her words: (But I hate infidelity in Islam). , Negligence in the right of the husband, abusing him, and doing actions that are contrary to Islam, such as disunity, rivalry, disobedience and the like… Therefore, the Yemeni legislator invoked the reason for annulment in Article 54. hatred.

Sixth: The saying of the Prophet, may God bless him and grant him peace, in the previous hadith, to Sabit bin Qais and his wife (accept the garden, and divorce her). This means that the Holy Prophet ordered her husband to divorce her, after he obeyed the Prophet’s command, accepting the garden (dowry), and this Which indicates that the divorce is a compulsory annulment and not a divorce. Therefore, in one of its expressions, Article (54) indicated the following text: (Otherwise, the husband will order a divorce, and if he refuses, a judgment of annulment will be ordered, and she must return the dowry).

Seventh: The previous hadith of the Prophet, may God bless him and grant him peace, proves that he said to the wife of Sabit bin Kais, when she said about the return of the dowry (and its increase), so he said: (As for the increase of the dowry), there is none), so in in this regard, the Yemeni legislator relied on this hadith, returning the full dowry belongs to the woman, without addition or subtraction (according to the previous article 54).

For these justifications, the Yemeni legislator opened the way for a woman, whose husband is stubborn in divorcing with his consent, and gave her the right to submit a court application for divorce, but under a name (annulment due to hatred). it is allowed for the spouses, with their consent and conviction, to spend it outside the court without coercion, and for the agreed allowance, it was equal to the dowry, whether it was more or less than it, according to the provisions of the articles (72, 73, 74 personal status).

# In exchange for:
Some may think that there is a difference as to the reason, which lies in the annulment of hatred (the judge must investigate the reason, and that reason must be proved to him; for a judgment of annulment), and I answer that the meaning of this phrase is that it is the duty of the judge to know the reason which required the arrival of the wife to hate her husband, so it is enough for her to mention the reason, and after that comes the conviction of the judge, conditioning this reason, does it create a tendency of hatred in the wife or not?? And if I disagree with the Yemeni lawmaker, declaring the phrase (if proven to him); Since the feeling and feeling of hatred is an internal psychological issue, which revolves in the woman’s thoughts and feelings, and the woman cannot prove to the judge whether this reason is convincing for her hatred towards him, so I suggest the Yemeni legislator to delete the phrase (if it is proved to him ); and withholding the expression (the judge must investigate the reason); It is enough for the wife to state the reason, and she is not obliged to prove it before the judge, whether it is psychological or material evidence.

Arab laws on personal status did not prescribe the title of annulment due to hatred, and most of them prescribed (divorce litigation), including Egyptian and Syrian legislation and the Saudi system, which the court considers in two stages, the first, the stage of reconciliation of the spouses by two decisions of their families at the office for family affairs, and in the event that they fail, the second stage is reached, with the wife’s statement and her adherence to muhale’, before the court, and no reason is required for this, but it is important that the wife declares her atonement, and that he does not believe in the continuation of the marriage relationship, and that he is afraid that he will set the limits of God, and based on this, the court decides to accept the divorce case and the return of the dowry, with its content of gold, appliances and so on. As far as Kuwaiti law is concerned, divorce is similar to Article 72 and what follows in Yemeni law, an amicable divorce between spouses out of court. Also, some laws, such as Jordanian and Emirati legislation, require that this case be considered under It is called (annulment due to damage or impossibility of intimate relations), and with the same procedures for a mukhala’a lawsuit, although, in my opinion, the name (annulment due to damage) often has material reasons, and is different from annulment due to hatred or the impossibility of marriage, the reasons for which are often psychological, as I already mentioned in the Fifth paragraph.

# And conclusion:
That the Yemeni legislator acted well by applying the khul’ decision in the law in two forms: the first / his decision is like an annulment, and the rule from Article 54 is applied to it. And the second / his decision is like a consensual divorce, and the above are applied to it the mentioned Articles 72 et seq.. with the difference in the effect of divorce between the divorce being considered a judicial divorce (Article 54) or an amicable divorce being considered a divorce (Article 72 et seq.).. Perhaps the basis is that the Yemeni legislator combines these two forms Judicial dispute in making a decision on divorce, whether it is annulment or divorce, and if the most correct saying among jurists is that it is annulment and not divorce, but the Yemeni legislator recommended combining the two images (and I support him in that), and gave way to a woman, whose husband is stubborn in divorce with his consent and giving her the right to file a court petition for divorce, under the title (annulment due to hatred) .. as we previously and in detail sp mentioned.
This is my judgement, and God knows best.

Saleh Abdullah Al Marfadi
judge of the court of cassation
Doctor of Science in Criminal Law
Ain-Shams University

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