The foundation of the law relevant to khula is contained in the Qur’anic verses which may be translated as follows:
“Such divorce may be pronounced twice; then, either retain them in a becoming manner or send them away with kindness. And it is not lawful for you that you take anything of what you have given them, unless both fear that they cannot observe the limits prescribed by Allah. But, if you fear that they cannot observe the limits prescribed by Allah, then it shall be no sin for either of them in what she gives to get her freedom. These are the limits prescribed by Allah, so transgress them not; and who so transgresses the limits prescribed by Allah, it is they that are the wrong doers.”
The words “if you fear” are addressed to the community or those in authority from among you, including the Qazi, who represents the community, for adjudication of disputes. This is borne out from the commentary of the Qur’an by Qurtabi, known as VI “Al Ja’me‑al‑Ahkaam‑al‑Qur’an”.
The learned author says that this is the opinion of lbn‑e‑Abbas and Malik‑bin‑Anas as well as the majority of the legists.
By the phrase “Limits of Allah”, according to the majority of legists, reference is intended to the injunctions regarding the performance of conjugal obligations while living together.
Firstly, the words “if you fear” involve by necessary implication a reference to the Judge and adjudication by him. The occasion for a reference to him arises only where the husband refuses to release his wife when she demands a divorce for if the matter is mutually agreed upon between the parties, the husband will divorce her and there will be ho reference to the Judge; and no occasion for him to arrive at the conclusion that the parties will not keep within the limits of Allah.
In consequence, the verse is a rule of decision in cases where the husband refuses to release his wife and is not in express terms applicable to cases of khula by mutual agreement where there is no reference to the Judge.
In khula, under the verse, the husband is permitted to accept what the wife may give him to be free and this is an exception to the general rule stated in cases of divorce by the husband in verse 2:229 and verses 19 and 20 of Sura Al‑Nisa that it is not lawful for him to take back any part of what he has given to the wife but it is lawful “if the Qazi entertains the fear”.
Therefore, the verse contemplates an adjudication by the Qazi as justification for the husband’s accepting what his wife gives him for being free.
The provision of adjudication in the verse is evidence of Divine Wisdom, for it ensures on the one hand that there are not too many too frequent and unrestricted dissolution of marriages and on the other that the wife is not oppressed in order to deprive her of her property.
Secondly, it confers a right and a privilege on the wife to seek dissolution of marriage. Khula is thus a right conferred on the wife. In the prior verse 2:228 the Holy Qur’an itself mentions “women have rights against men similar to those that men have against them, according. to the well‑known rules of equity”.
It is explained that incurable aversion to the husband on the part of the wife would be sufficient justification for khula. Shah Wali Ullah in ” (Al‑Musawwa‑ min‑Hadith‑al‑Muatta, Vol. II, Page. 160) goes to the length of saying that “even if she obtains khula without any reason (apart from personal dislike) it is lawful but not approved. The reason is that the Prophet Mohammed PBUH and the Companions never inquired from her about the reason for her (seeking) khula.”