Having intercourse with husband has no effect on wife's Khul’ case
17-3-2013 | IslamWeb
Question:
After ten years of constantly trying (and two kids) I have determined there is no peace left in my marriage. We have both tried our best to overcome our problems yet we are still unable to come to a solution same as the first week we married. I'm taking my husband to court for khulu although he is not accepting, I am finished. I know for men, if they have relations with their wife during talaq, the talaq is nullified because they took them back. But during khulu, a wife is still under her husband's rights and house (and has no way to move out). If he wants to have relations and she doesn't want anymore, does she have to obay him in this? If she does obay him and sleeps with him, though there is no love in her heart only to obay him fearing Allah, but not to take him back is her khulu still in process? Will the Islamic Courts accept khulu even though she's still sleeping with him, for the sake of Allah only. Thanks for help in this matter. I don't want to have relations, yet I don't want to have Allah angry with me, or to cause my husband physical harm (from lack) in the time it will take the courts to decide.
Answer:
All perfect praise be to Allaah, the Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
In principle, the bond of marriage is still valid until divorce or Khul’ takes place; for more benefit, please refer to Fatwa 92236.
Based on this, you are still a wife to your husband and you are obliged to obey him in what is permissible, among which is that if he calls you to bed, you are obliged to honor his request even if you have no desire. In case you refuse without having a sound reason, then you are very sinful. Abu Hurayrah 
narrated that the Prophet 
said: "If a husband calls his wife to bed (to have sexual intercourse with her) and she refuses, and he spends the night angry with her, the angels will curse her until the morning." [Al-Bukhari and Muslim]
On the other hand, having intercourse with your husband has no effect on the Khul’ case you have raised in the court nor on whether or not the judge will accept it.
In case the judge issues Khul’, then this is one irrevocable divorce and the husband is not permitted to take back his wife except with a new marriage contract. For more benefit, please refer to Fatwa 157545.
We would like to point out two matters:
1- If a husband has sexual intercourse with his wife (in her waiting period) when she is divorced a revocable divorce, then this is considered as him taking her back according to some scholars, and some of them stipulate having the intention to take her back along with the intercourse. For more benefit, please refer to Fatwa 89845.
2- If a wife hates her husband, she is permitted to ask for Khul’, but if she is able to be patient with her husband and strive with him in solving their problems, then this is more appropriate. Indeed, homes are not built on love alone as clarified in Fatwa 86796. Moreover, since you have children who need the care of their parents, then this is one of the greatest benefits that would help the spouses to overcome their problems. Allaah says (what means): {And if a woman fears from her husband contempt or evasion, there it no sin upon them if they make terms of settlement between them — and settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allaah — then indeed Allaah is ever, with what you do, Acquainted.}[Quran 4:128]
Allaah Knows best.