An agreement made between the parties to marriage whereby it is provided that the wife should at liberty to divorce her in specified contingencies is valid. Such an agreement can be entered before or after marriage. Such delegation of power of divorce to the wife may be permanent or temporary that is for a specified duration. But the condition should not be opposed to public policy and should be a reasonable condition. In such a case a wife may on the happening of the contingency repudiate herself in the exercise of authority delegated to her. Such juristic ideas and devices help women to avoid undesired things like the husband’s bigamous marriage. The wife is exercising such delegating power of Talaq from the husband itself. It is also known as Talaq-ul-tafwid. Tafwid means it is made on behalf of the husband. It is a potent weapon in the hand of a Muslim woman to obtain freedom without the intervention of the court.
All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. This law deals with marriage, succession, inheritance and charities among Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women can obtain divorce and rights of Muslim women who have been divorced by their husbands and to provide for related matters.
The doctrine of ‘tafweez’ or delegation of power is an important topic of the Muslim Law of divorce. A husband may, either himself, repudiate his wife or delegate this power of repudiating her to a third party, or even to his wife such a delegation of power is called tafweez. An agreement made either before or after the marriage providing that the wife would be at liberty to divorce herself from her husband under certain specified conditions such as, in case the husband marries a second wife or fails to maintain her for a specified period, is valid, provided first, that the option is not absolute and unconditional and secondly, that the conditions are reasonable and not opposed to public policy.
Talaq-e-tafweez is the only way through which a woman can give divorce to his husband, however, such power to give divorce needs to be delegated by the husband only. It is a form of an agreement made either before or after marriage providing that wife will be privileged to get separated from her husband via divorce under the specified condition as:-
In case the husband marries a second wife
The husband is unable to maintain her for a specified period of time any other condition that must not be opposed to public policy.
If the conditions agreed in the agreement by the husband are well practised by him then, the wife without any prejudice to Law can dissolve her marital ties. The fact that husband delegates the power to the wife does not dispossess him of his right pronounce talaq.
DIVORCE UNDER MUSLIM LAW PERSONAL LAW TALAQ AND TALAQ-E-TAFWEEZ –
According to Muslim personal law, marriage is considered as a contract that cannot be dissolved but in certain circumstances, such matrimonial contract can be broken. Parties themselves can break the contract or by a decree to court. Primarily the right of divorce is given to the husband. An arbitration meeting has arranged by elders in the first instance of divorce. If such an effort is failing he can divorce his wife by writing or verbally. On the instance of pronouncement of Talaq presence of two witnesses is necessary. There are certain criteria for the proclamation of Talaq such as:
Talaq can be done only once
Only at the time where his wife is not undergoing the menstrual time
There was no sexual contact since her last menstrual time.
The wife has to undergo a certain period called iddat after pronouncing divorce. During the period wife can stay at home, but there will not be any sexual intercourse between them. The husband has an option to take back his wife by verbally saying ‘I take you back’. On the other hand, if the husband hasn’t done that, at the end of the iddat period wife is divorced completely and has to leave from her matrimonial house. Two witnesses are also necessary when the husband decides to take back before the end of the period of iddat. The husband cannot take back or remarry her when he pronounced three Talaq on the same or even different occasions. After the divorce council issues certificate of Talaq in the presence of two witnesses and the husband shall pay the dower in full to his divorced wife.
Talaq-e-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”.
This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmali, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.
The wife exercising her power under the agreement must establish that the conditions entitling her to exercise the power have been fulfilled. In such cases, the mere happening of the contingency is not sufficient, the wife must clearly establish first that events entitling her to exercise her option have occurred, and secondly, that she actually exercised her options.
It is noteworthy that in case of talaq-e-tafweez, the wife does not her husband-and this she cannot do under Muslim law- but divorce herself on behalf of her husband under his power delegated to her by him. Under the Muslim Law, when under the contract of wife is empowered to divorce herself in specific contingencies which she exercises at the happening to any of them, the divorce will take effect to the same extent, as if it has been pronounced by the husband. It does not require any declaration from a court of law.
In Manjila Bibi v. Noor Hossain, the petitioner was married with the defendant Noor Hossain. The husband delegated his power of divorce of his wife and the same was entered into in a kabinnama which was executed. When she was ill-treated by her husband, she dissolved the marriage by virtue of the authority delegated to her by her husband before the Muslim Marriage Registrar. The husband refused to pay the maintenance and dower to the wife when claimed by her under section 3 of the Muslim Women (Protection of Rights of Divorce) Act, 1986.
The court held that the power to give divorce which primarily belongs to the husband may be delegated to his wife either absolutely or conditionally. Since this is not prohibited by the personal law of the parties therefore, it is quite open to her to divorce herself. The court further held that the wife in the instant case was very much a divorce women when she dissolved her marriage by virtue of authority delegated to her and executed a divorce deed before the Muslim Marriage Registrar and Kazi and it cannot be said that the marriage was still subsisting as no specified contingencies had taken place.
Ameer ali gives three kinds of tafweez. These are:
Ikhtair giving her the authority to talaq herself;
Amr-bayed leaving the matter in her own hand; and
Mashiat giving her the option to do what she likes.
Husband’s power to pronounce talaq in spite to tafweez- The mere fact that husband delegates to the wife power of pronouncing her won talaq, does no deprive the husband himself of his right to pronounce talaq.
Talaq-e-taliq- It means contingent divorce. Under the Hanafi law, the pronouncement of divorce may take effect immediately or at some future specified time or event, a condition may be attached to it and it will be valid. So there can be contingent divorce.
After the 2017 judgement of the supreme court held and declared triple talaq unconstitutional, under Muslim law, both husband and wife are given equal rights to dissolve their marital relationship.
When two people enter into a marital relationship, they might not know each other so well, as they got to know each other after living together. And after that, if there is no compatibility between the two, living apart is the best choice to be made.
Bad relations may spoil the life of both the individuals and under Muslim law, talaq is an ancient practice and is not recognised as a sinful act, unlike under Hindu law.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at email@example.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
Khan Iqbal Ali,2016 Mohammedan Law, 26th Edition by Central Law Agency, Law publishers, 30D/1, Moti Lal Nehru Road, Allahabad-2.