Fatwa ID: 06881
Answered by: Alimah Jannatun Nessa
Question:
I got married in Pakistan in March 2022, my wife initially stayed at my parents’ house for 3 months while waiting for paperwork to be sorted and later came to the UK to live with me, we started to have arguments whilst she was in Pakistan and arguments got worse when she joined me here, however, we were still holding alright, until one day when her mother turned up at our doorstep unannounced, I refused to meet her and stay in the house, (in the past I overheard few conversations which suggested that my wife and her mother were involved in doing black magic and Sehr and her mother has been providing her different things to feed me in my meals), her mother stayed in our house for a month and then later my wife left with her without informing me, and took all her belongings with her.
3 weeks later I received a divorce deed from my wife stating; words directly quoted from the deed that “at the time of Nikah my husband had delegated right to divorce upon me, and it was incorporated in Para 18 of Nikah Nama, and signed in presence of witnesses” hence “I pronounce divorce to myself” both parties are free from the marriage bond
Allah be my witness, At the time of the Nikah, I did not grant the right to divorce to my wife, as per described procedure by the Sharia, without my knowledge it was incorporated into the Nikah document by the Imam whilst writing it at the mosque and I was not present them at that moment, furthermore, it was not announced during the Nikah ceremony in the presence of witnesses, The truth is I remained unaware of this provision even existed or any such rights can be delegated, until when I discovered it through divorce deed. I have signed the document of the Nikah being completely unaware of delegating any rights of divorce.
My question is:
1: Has this divorce taken place?
2: Did the Nikah Imam have any rights to delegate the rights of divorce to my wife without my knowledge?
3: Incorporating conditions in Nikah Nama without someone’s knowledge and without announcing them, makes them applicable because they signed that document.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Firstly, if the husband has designated someone to write the divorce statement on his behalf, that person reads the document aloud, and the husband verifies that this is his statement, then the divorce will be finalised in writing. A written divorce is void if it is executed without the husband’s knowledge and will not take place unless he affirms that whatever is written on the document represents his intentions.
Secondly, if the husband delegates the right to divorce to his wife, then that authority is only valid in the gathering that she is aware of this delegation.
This means that your wife would only be allowed to divorce herself in the gathering where you signed the contract unless the contract states that she is given the right to divorce herself ‘whenever’ she wants.
In conclusion, for a document to be legally binding, the husband must certify that it accurately reflects his intentions. If the husband grants his wife the right to divorce, she can only exercise it during the time he gave her this authority—which in this case is at the time of signing the marriage certificate—unless the contract expressly states that she may do so at any point during the marriage.
Only Allah (عز و جل) knows best.
Written by Alimah Jannatun Nessa
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
[Fatawa Alamgiri, volume 1, page 547, Education press pdf]
إذا قال لامرأته امرك بيدك ينوي الطلاق فان كانت تسمع فأمرها بيدها ما دامت في مجلسها وان لم تسمع فأمرها بيدها اذا علمت او بلغها كذا في المحيط.
[Bahrur Raiq, volume 3, page 539, Daar al kutub al ilmiyyah]
والتفويض اليها يكون بلفظ التخيير والأمر باليد والمشيئة، وقدم الاول لثباته بصريح الدليل قوله : (ولو قال لها اختاري ينوي الطلاق فاختارت في مجلسها بانت واحدة) لأن المخيرة لها خيار المجلس بإجماع الصحابة رضي الله عنهم إجماعا سكوتيا عند تصريح بعضهم.
[Radd ul Muhtar, volume 4, page 456, Daar al kutub al ilmiyyah]
لو استكتب من آخر كتابا بطلاقها وقرأه على الزوج وختمه وعنونه وبعث إليها فأتاها، وقع ان أقر الزوج أنه كتابه، أو قال للرجل ابعث به إليها، أو قال له اكتب نسخة وابعث بها اليها؛ وان لم يقر أنه كتابه ولم تقم بينة لكنه وصف الأمر على وجهه لا تطلق قضاء ولا ديانة، وكذا كل كتاب لم يكتبه بخطه ولم يمله بنفسه لا يقع الطلاق ما لم يقر أنه كتابه اهـ ملخصا.
