Does the husband still have the right to divorce his wife even though he has delegated the right of divorce to her

Fatwa ID: 01714

Answered by Mufti Mohammed Tosir Miah

Question:

Me and my wife both married in Pakistan as per Pakistani officially and Islamic marriage rules. In our Nikha nama (Marriage certificate) only I got right of divorce. My wife said give me divorce or at least right of divorce. One day we had some serious arguments and I gave her right of divorce by writing a simple sentence on a plain paper that 'I am giving you right of divorce' and signed the paper. Then after two months, we have some arguments again and she gave me divorce by writing on a plain paper that 'I am giving first divorce to (My name)' and signed the paper. I was so upset and angry and left the house and went to my friend’s house. Then I called to my sister and told her whole story, I was so upset and felt insult and said to my sister on the phone that 'She gave me one divorce so I 'll give her three right now and said three time'I am giving divorce to ….(wife name).  This is happened two days ago at the time of writing this email. I am still at my friend’s house. We both have no contact after this. Can you please tell me
1. Giving right of divorce on plain paper without any witness was right
2. On basis of this right, divorce from my wife on plain paper is valid. (She didn't say any word, Just wrote and signed)
3. On basis of my wife divorce to me, I said 'I am giving divorce to (wife name)' was valid ? Is divorce done by saying these words on phone to my sister in absence of my wife?

 Answer:

Bismillah

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)
  6. By delegating the right to divorce, the husband still has a right to divorce his wife. (See Al-Ikhtiyar p.149 v.3)

Keeping the aforementioned information in mind we can derive:

  1. You delegate the right of divorce without the need of witnesses.
  2. If you said to your wife you can give divorce whenever, then the divorce she wrote would be valid. If no time was mentioned, then the right of divorce is restricted to that specific gathering where the right was given, hence, the talaq she wrote would not be valid.
  3. The three talaqs you gave to your wife would be valid.

The conclusion we can come to is that three talaqs have occurred and your wife is unlawful upon you.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.

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