Fatwa ID: 03197
Answered by: Maulana Belaal Ahmed
1. If I delegate the right of divorce to my wife one of the conditions is that she has to accept it within that same session (majlis) that she is in. However, if she has no knowledge or is ignorant of the fact that the husband can delegate to her the right of divorce and even at that moment considers such a delegation as baatil and says considering the whole thing in her mind as baatil "I divorce myself" will the divorce be considered?
2. If the divorce is considered then will it be a Talaaq-e-Rajie or a Talaaq-e-Baain?
3. If Talaaq-e-Baain and I take her back thinking it is Talaaq-e-Rajie and a year passes and I give her another talaaq. Will the second talaaq take place?
بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم
In the name of Allah, the Most Gracious, the Most Merciful
In accordance with Shariah, the right to divorce belongs only to the husband and not the wife. There are many reasons and wisdom behind this ruling.
However, although the power to issue a divorce in principle belongs to the husband, he may delegate this power to his wife or a third party, with or without stipulating conditions. Once this power is delegated, it can not be revoked or withdrawn. This is known in the Fiqh terminology as Tafweed.
We learn about this term of Tafweed through the holy Quran, where Allah (swt) reveals ayaat regarding a Certain incident where the Messenger of Allah (Allah bless him & give him peace) gave his wives the option to remain in his marriage or be divorced. Allah Most High said to the Messenger of Allah (Allah bless him & give him peace):
“O Prophet! Say to your wives: “If it be that you desire the life of this world, and its glitter, then come! I will provide for your enjoyment and set you free in a handsome manner. But if you seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward. (Surah al-Ahzab, 21st JUZ ayat:28).
The above ayah was revealed in regards to when the holy prophet Muhammad (s.a.w) left his spouse for a period of a month.
Imam Bukhari (R.A) mentions a Hadith of Hazrat Aisha (R.A) also narrates that the holy prophet (s.a.w) gave us the option to remain with him or to be divorced, so we chose and preferred Allah and His Messenger. Giving us that option was not regarded as divorce.
RULES REGARDING TAFWIDH
Here below are some rules regarding Tafweed:
1) When the husband delegates the right to divorce from the wife, she will only have this right in the session (majlis) that she is in. If she did not exercise her right, then this right will go in vain. However, if the husband delegates this right for a specific period or permanently, then she will have this right accordingly. (1)
2) The wife will only have a right to divorce herself according to what was delegated to her. If the husband delegated to her the right to divorce herself once (and not two or three times), or he delegated the right to divorce herself irrevocably, then she will have this right accordingly. She will only be allowed to utilize this right in a manner it was delegated to her. (2)
3) If the husband gave his wife the right to divorce herself a specific number of divorces, then she will not have a right to divorce herself more than the number of divorces that were delegated to her.
4) Once the husband delegates this right to his wife, he cannot overturn or revoke it. (3)
In conclusion to the question asked talaaq will occur and the wife will only have a right to divorce herself according to what was delegated to her. In regards to what kind of talaaq has been issued talaaq baaina will have occurred. (4)
Regarding 3rd question asked
3) QUESTION: If Talaaq-e-Baaina and I take her back thinking it is Talaaq-e-Rajiee and a year passes and I give her another talaaq?
In principle, Talaaq-e-Bain terminates the Nikah, so if one gives somebody talaaq after a period of year it will not be considered because in order to reconcile with your wife you need to renew the Nikah, and in this case Nikah was not renewed so from a shar-ee perspective she is not in his Nikah from the time that the Tafweed took place until Nikah is not renewed.
Only Allah knows best
Written by Maulana Belaal Ahmed
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
1)RADDUL MUHTAR VOL 4 PG 553 ( DAR ALIMUL KUTUB)
2) & 3) FATAWA HINDIYA VOL 1 PG 423 (DARUL KUTUB AL ILMIYA) RADDUL MUHTAR
4) FATAWA HINDIYA VOL 1 PG 425 & (FATAWA ALAMGHEERI)( URDU) DARUL ISHAT PG 389 VOL 2