Delegating the responsibility of Talaq to the wife without her knowledge

CategoriesDivorce [560]

Assalamu Alaikum, my question is regarding talak given by wife. In our state, there is a clause in the nikah-nama stating, “Whether the husband has delegated the power of talaq to his wife? If he has then in what conditions". Now, in this case, during marriage ceremony, the bride or her wali did not know about this clause nor did they ask anything. But the marriage register (kazi) wrote in answer here, "YES" but did not mention any condition. The husband asked him why he did so. Kazi answered that if he writes "No" then his license will be cancelled. Then both husband and wife signed the nikah-nama. Now, both of them thought it was requirement of state law and the wife can get a divorce from court by showing this document. But both of them thought Islam does not allow wife to give talaq. They thought only husband has the right to give talaq in Islam. Now, during one heated quarrel, wife being very frustrated said to the husband that, "I am giving you talaq, 1 talaq, 2 talaq, 3 talaq, though I know it does not happen by my saying, I just wanted you to know how it feels." Now question is did talaq happen by the wife saying so. Please note that she did not know she had the power nor did she intend to give talaq. After her saying so, husband said that," I wont give you talaq, do what you can". Please suggest the ruling if talaq happened in this case. If it happened is it revocable or not? Can they live together if reconciled?

In the name of Allah, the most Beneficent, the most Merciful.

Answer

Imam Haskafi (RA) in his Durrul Mukhtar has stated, “If he makes Nikah with her upon this condition that the matter of (Talaq) is in her hands, then it will be valid and correct.”

However, Allahmah Ibn Abideen Shami (RA) explains that this condition must be forthcoming from the woman and the husband will accept it. If this condition comes from the man that he will marry the woman on the condition that the matter of Talaq is in her hands, then this is invalid. In such a case, neither does the woman have the right of Talaq, nor will it be effected if it flows from her. (Raddul Muhtar p.667 v.2)

Regarding your question, the Sharia has allowed that the husband hand over this right of Talaq to his wife. In this case, instead of the man, the woman may issue a Talaq upon herself.

For the delegation of the Talaq to work the following conditions needs to be found:

  1. The wife must be well aware that she has been given the right of Talaq. (Fatawa Hindiyyah p.338 v.1)
  2. The wife must accept this right of Talaq in the same gathering where she is being made aware of it. (Bahrur Raaiq p.311 v.3)
  3. If the husband has specified a certain time period in which the wife has the choice of delegating the Talaq, then she is bound to that time period. After the lapsing of the said time period, her choice falls away. (Barur Raaiq, Ibid)
  4. The wife only has the right of use as much as was given to her by the husband. If she is given the choice of one Talaq, she cannot effect two or three.
  5. After giving the choice, the husband cannot revoke it nor can he cancel it. (Barur Raaiq, Ibid)

From the aforementioned information we can derive that as the wife was not aware of the delegation of the Talaq to her possession, the three talaqs she gave to her husband will be invalid.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.

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