Is the ‘Iddah after Khulu’ One Month or Three?

Question:

As salaamu alaykum dear respected scholar. I would like to ask according to Shafi’i Fiqh is a Khula a from of Talaq or divorce? And if so is the ‘iddah the same as a Talaq (three periods of purity between menstrual cycles)?

Country: United States

Answer:

Wa alaykum salam wa rahmatullah wa barakatuhu,

In his Jami’ 3/318-19, Imam Tirmidhi related two views: (1) it is like an ‘iddah after a talaq (2) and that it is just one period [haydah].

In regards to the second view, he even cited Ishaq b. Rahaway as saying, “And if one takes this view, he has taken a strong opinion.”

Hafiz Ibn Hajar points out that in regards to the hadiths mentioning Thabit’s case of khulu’, it is possible they are addressing more than one case.

In one of the hadiths regarding Thabit’s khulu’ case(s), the wording طلقها “divorce her” is mentioned. (Sahih al-Bukhari 3/406) The hadith in Bukhari clearly states that to that khulu’ is min bab al-talaq, that khulu’ is a form of divorce. And when it is established that it is a talaq, then the ‘iddah is mentioned in Surah al-Baqarah: 228, “And divorced women shall wait for three periods…”

Being found in the Sahihayn, the riwayah mentioning طلقها are authentic by the agreement of the entire ummah. There are discussions on the establishment of the reports mentioning just one period, like what Imam Bayhaqi mentioned in al-Sunan al-Kubra 7/740-41. This is not to say that the other hadiths have no basis – in fact, they are found in the Sunan literature – rather to point out that the way Shafi’i scholars dealt with the hadith evidence here seems to be by giving preference to the hadiths mentioning talaq over those mentioning one haydah.

According to the madhhab’s principles, if there is a seeming contradiction between hadith, then the first attempt is to make jam’ [reconcile between them]. However, in this case, jam’ is difficult. So it seems that the scholars moved to tarjih; they prefer the wording in Sahih al-Bukhari that establishes it is a talaq and the ruling of the ‘iddah in a case of talaq is mentioned in the Qur’an.

The hadiths in the Sunan mentioning that a woman’s ‘iddah after khulu’ is one period [haydah], if someone practiced on them making taqlid of those who maintained that view, it is a respectable opinion. The basis for both views is strong in light of the evidence.

The Shafi’i madhhab’s view, maintains that her ‘iddah is like an ‘iddah after a talaq. The opinion that her ‘iddah is that of a divorced woman is not only the Shafi’i school’s opinion, in fact, is is the majority view of the companions of the Prophet (sallaAllahu ‘alayhie wa sallam) and the scholars who came after them too. (Jami’ al-Tirmidhi 3/320)

And Allah knows best.

Shafiifiqh.com Fatwa Dept.