The concept of talaq (divorce) within the Pakistani society is often frowned upon and, as per Islamic principles, should be avoided. However, it is no secret that the Islamic principles on divorce are often misused in our culture, especially when protecting women stripped of their right to exit an unhappy or abusive marriage. It is pertinent for a progressive society to acknowledge that divorce, albeit an undesirable act, is permissible under the Shariah. Islamic law is very particular in drawing proper procedural rules regarding family laws which align with other Islamic injunctions. It lays down three fundamental ways in which two people may part after marriage: divorce, khula and judicial khula. Under the umbrella of divorce, there is also the ‘delegated right of divorce,’ referred to as talaq-e-tafweez. The knowledge on this subject is scant and not necessarily accurate among the masses due to which it faces a lot of criticism, hence, it is crucial to know what talaq-e-tafweez is, what the criticism is about and the correct procedure under which this right can be exercised, both in light of Shariah law and the Pakistani legal system.
According to Shariah, the right to divorce vests principally with the husband rather than the wife. But this power may be delegated by the husband to his wife or a third party, with or without attaching conditions. This right to delegated divorce has also been acknowledged and provided in Pakistani law under section 8 of the Muslim Family Laws Ordinance (MFLO) 1961 in the following words:
“Dissolution of marriage otherwise than by Divorce:
Where the right to divorce has been delegated to the wife, and she wishes to exercise that right, or where any of the parties to marriage wishes to dissolve the marriage otherwise than by divorce, the provisions of section 7 shall mutatis mutandis and so far as applicable, apply.”
The issue surrounding talaq-e-tafweez (delegated divorce) is twofold: first, pertaining to the validity of delegated divorce and, secondly, to the procedure applied under the MFLO. The Pakistani society often holds the right to delegated divorce as a social evil promoting crimes like zina (adultery) in case a woman supposedly contracts another marriage while already being married but thinking that she has correctly dissolved her first marriage as per section 8 of MFLO without knowing about its invalidity. The wrong interpretation and implementation can tear the fabric of the Islamic family system, therefore, to decide whether section 8 of MFLO is apt and in line with the Islamic provisions for the protection of women’s rights, one must delve into a few legal and Islamic questions regarding the validity and procedure of delegated divorce.
First, we shall see what the majority of jurists have said about the substantive validity of delegated divorce under Shariah law. Except for scholars belonging to Fiqh Jaferia, all other Muslim jurists of various schools of thought are unanimous on its permissibility, though with slight variation in its procedure. The right to delegated divorce can be traced back to when Prophet Muhammad (peace be upon him) had been apart from his wives for quite some time, after which the verses of Surah al-Ahzab, 28 were revealed. On this subject, Sayyida Aisha (RA) narrated that the Prophet (PBUH) gave them the option (to remain with him or be divorced – they chose to stay married and said they preferred Allah and His Prophet). Giving them the option was not regarded as divorce itself (Sahih al-Bukhari, no. 4962).
Furthermore, according to Imam al-Sarakhsi:
“If a man delegates the right to divorce to his wife, then this is similar to giving an option (khiyar) in trade, except that this is completely valid and logical, for the husband is the owner of issuing the divorce, thus he is in a position of delegating something that he owns. Hence, it will be binding, in that the husband will not have the right to revoke this delegation.”
– (al-Mabsut, 7/221)
Moreover, the Companions of the Prophet also unanimously agreed upon the validity of delegating the right to divorce to the wife (al-Mawsili, al-Ikhtiyar li ta’lil al-Mukhtar, 2/166 and Zaylai’i, Nab al-Raya, 3/229).
This shows that under Sharia law, the right to delegated divorce is undisputed and completely valid.
Under the Pakistani legal system, Dr. Fida Muhammad Khan, in his judgment at the Federal Shariat Court in Khawar Iqbal v. Federation of Pakistan (2013 MLD 1711), held that delegated divorce enabled women to keep a check on men who were cruel to them or neglectful of their marriage and maintenance responsibilities. Similarly, if a situation arose where a husband went missing and his whereabouts were entirely unknown, the delegated right to divorce would be very beneficial to a woman as it would remove any ambiguity of her marital status, thus allowing her to move forward in her personal life instead of remaining stuck in a place like stagnant water. This judgment also held delegated divorce to be valid in light of Islamic law.
After establishing the validity of delegated divorce under Islamic principles and the Pakistani legal system, it is necessary to look at the procedure laid down for it by various jurists.
Maulana Khalid Saif writes in his book that if a husband only says to his wife, “If you wish, you can pronounce upon yourself divorce,” or says to a third person, “You can pronounce divorce on my wife,” then that right is only to be exercised in that particular meeting/gathering of the nikah (marriage ceremony). These words are said with no particular information or condition attached, hence, when such a vague statement is used it can be presumed that the right has been given only in that particular gathering of the marriage ceremony where the statement has been made.
Let us look at another scenario where the husband states, “You can pronounce upon yourself divorce,” and does not use the words “if you wish”, then the right to delegated divorce will only be limited to the marriage ceremony where the statement has been made and the husband cannot revoke this right for that period. However, this right will be extinguished once the marriage ceremony has concluded. Contrastingly, if the husband makes this statement to a third person, “You can pronounce divorce on my wife,” but does not use the word “wish”, then the right will be delegated to this third person and can be executed even after the marriage ceremony, though only the husband can revoke this right.
On another occasion, if the statement, “You can pronounce divorce upon yourself whenever you wish,” is made out to either the wife or a third person, then the right to delegated divorce will remain intact even outside the meeting where the statement has been made and the wife or the third person may pronounce it whenever they wish.
Moreover, if the husband attaches a condition with the statement through which he delegates the right to divorce and states, “You can pronounce upon yourself divorce if I go missing for a certain period, or if I hit you, or do not maintain you,” then the right to delegated divorce will only be exercised when such a situation ensues.
Looking at the procedural requirements of delegated divorce, it is clear that the statements made when delegating the right to divorce are pertinent and should be made with due diligence, while the extent of the right one wishes to delegate should be reflected through the statement that is written in the nikah nama (marriage contract).
Column 18 of the marriage contract deals with the right to delegated divorce. It asks whether the right to divorce is delegated and in case it is, it is usually answered by writing the word ‘yes’ in front of it. Legally speaking, this ‘yes’ carries no value because it does not clarify the terms and conditions of the delegated divorce, hence, it is ambiguous. Furthermore, the law will assume that the right was given only to the extent of the marriage ceremony, which would have no value later. Therefore, it is vital that the marriage contract is filled carefully and the rights women wish to claim from their husbands are correctly noted down without leaving any room for doubt in order to prevent problems in future.
It is also crucial to understand the rules regarding different stages and times when the husband can delegate the right to divorce. These are explained below:
- When the right is delegated at the time of contracting marriage: this is also permissible. However, it has an important condition attached to it, i.e. the offer of marriage must come from the woman coupled with the demand for the delegated right to divorce, which the man can later accept. If it happens vice versa, the right will be considered void.
- When the right is delegated after marriage: this is permissible and the husband is free to accept this.
- When the right is delegated before contracting marriage: it will be permissible given the fulfillment of the condition that a man delegates the right by formulating a statement that he only gives the right to one irrevocable divorce out of the three divorces. Anything other than that shall be considered void.
Shariah law has given extensive rules and procedural requirements regrading the delegated right to divorce, which shows that this is a right to be exercised for the protection of women. What is interesting to note is that this right is not subject to be given only at the time of contracting a marriage. Shariah has created certain flexibilities to make it easier to exercise this right so it can be transferred or delegated before or even after contracting marriage. It is unfortunate that societal pressure and cultural norms do not allow women to learn about and claim the rights lawfully given to them by their religion.
Given the societal issues being faced by women today, we can see that Islam has laid down reasonable protection measures in the form of the delegated right to divorce. Such a right not only offers protection to women against hostile environments, abusive households and domestic violence, it also gives them a sense of equality with their husband and makes them stronger and less fearful about having a way out in case they face violence at the hands of their partner.
Regardless of whether a man or woman exercises the right to divorce, the right should still be exercised with caution and only when necessary. The sanctity of marriage remains the primary concern, hence, pronouncing divorce should not just be toyed with.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.