Returning gifts after divorce

Question:

In our community Muslim Marwari Silawat Jamaat (Registered) Jaisalmeri Karachi, it is a tradition that boys wear gold ornaments on a loan to a girl. The girl is not made the owner of these ornaments, but those ornaments remain in the possession of the boy. In the same way, gold is given on ritual to the boy by the girl. The problem is that my wife has already taken back the gold loaned to me by her family, but at the same time the gold of my mother, which is on loan with my wife, is to be returned. It is denied. My wife says that this gold is my gift and my right, whereas we never gifted this gold to my wife, nor did I give this gold to my wife as dowry. It should be noted that we have no children.

Now my question is that in the present situation, is it legally permissible for my wife to keep the gold of my mother Nasreen Sadaqat while she has taken the Degree of Khula from the court? Is our demand for the return of gold from my wife correct? Is it right for my wife to refuse to return gold ornaments when she has also recovered her gold? Also, who is the real rightful, heir and owner of our gold jewelry according to the shari'ah law? Answer: In the name of Allah the most gracious and the most Merciful, Assalamualikum wrwb, According to the Hanafi School of Sunni Islamic law, if jewellery and/or other gifts are specifically given to the bride upon marriage by a third party, then that exclusively belongs to her and for her to keep even after divorce. If they are given jointly to both the groom and bride, then the items will be co-owned, and as such, they will be split into half in case of a divorce. As for the jewellery and gifts [other than the dowry/mahr] given to the bride by the groom or his family, there are various scenarios: a) If it is explicitly declared by the groom’s family, at the time of giving, that the gifts are being given for the bride to own (tamlikan), then they will remain in her ownership, and as such, she does not have to return them upon divorce. b) If it is explicitly declared by the groom’s family, at the time of giving, that the gifts are being given for the bride to merely use during the marriage (a’riyatan), then the groom and his family are entitled to take them back upon divorce. c) If nothing is declared [i.e. whether they are for her to own or use] at the time of giving, then the custom (urf) of the families will be taken into account. If customarily, such gifts are given to own, it will be hers to keep, otherwise not. If both customs are prevalent, or there is a disagreement between the two parties as to whether the jewellery and gifts were given to own or use, then if the bride’s family can bring evidence (bayyina) that at the time of giving it was clearly declared that the jewellery/gifts were given for her to own, they will remain with her. If her family cannot bring such evidence, then the groom’s statement will be accepted with an oath that the gifts were merely given for her to use during the marriage. As such, he will be entitled to take back items that have not been consumed like jewellery and other valuables. If an item got destroyed or the bride used it up (such as cash), then she does not have to return it. (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/151-152, Al-Fatawa al-Hindiyya 1/327 and Fatawa Mahmudiyya 12/106) And Allah knows best Mufti Umer Farooq Saleem