Modes of Talaq (Zehar, Talaw-e-Tafweez (Delegated Talaq)) Consequences of Divorce

Talaq means to divorce and Tafwid or Tafweez means to delegate. In Islam a husband can delegate the right of divorce to his wife or any third person.  This delegated divorce is known as Talaq-e-Tafweez also spelt as Talaq-i-Tafwid. This delegation can be made at the time of marriage by way of a prenuptial agreement, with or without conditions.

The scholars say that the parents of a woman can secure this right for their daughter at the time of drawing up her marriage contract, if they fear their daughter would not be safe or mistreated in her in-laws’ house in future.

This delegation (Tafwid) can be made either before or after the marriage. Through this delegated divorce generally inserted in as a prenuptial clause in the marriage contract or Nikahnama gets the right of pronouncing divorce upon herself.

By the delegated divorce it does not mean that the woman will give divorce to her husband. Instead it means that she has the delegated right of pronouncing Talaq upon herself. For example, if a woman who has been delegated the power of divorce says, “I am divorced” or “I divorced myself”, this divorce will take effect, contrary to the effect of her saying “I divorced you” (whereby it will not take effect) because it is a wife that can be divorced and not a husband. (Haskafi, Durr al-Mukhtar p.181)    

Imam Fakhruddin Hassan Bin Mansur al-Uzjandli al-Farghani known as Qazi Khan (d. 592 H.) says, “And if a man says to his wife, “the authority to divorce yourself is in your hand as often as you please;” the authority shall be in her hands to divorce herself as often as she pleases until the number three is completed” (Fatawa Qazi Khan trans. by Maulvi Mahmood Yusoof and Maulvi Wilayat Hussain, vol. 2, p.258)

Imam Alauddin Haskafi writes, “If a person says (to another) “give your daughter to me in marriage, on the condition that the right of repudiation will remain in your hand” and the girl’s father accepts, the right will not vest in the father, because the power is delegated before the marriage” (Alauddin Haskafi, Durr al-Mukhtar trans. by B.M. Dayal, 1913 edition. p.11)

Allama Haskafi also says, “The Delegation of divorce refers to the assignment of a power. It is not an agency, and therefore the husband cannot retract from it; so much so that if he gives her [such authority], and then swears that he will not divorce her, but she divorces herself, according to the most approved opinion, the husband shall not be treated as guilty of breaking his oath.” (Durr al-Mukhtar (trans. by B.M. Dayal; 1913, p. 172)

It can be stipulated in the Tafweez agreement that if the husband fails to pay her maintenance or marries to a second wife, the wife will have the liberty to divorce herself from her husband. If the delegation is conditional, the woman cannot exercise the power of pronouncing Talaq upon herself, until that condition is fulfilled. The conditions must be reasonable and not be against the teachings of Islam and public policy.

 

Principles of Muhammadan Law. Page 478 to 497

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