Delegated Power of Divorce by the Wife
4.1 Talaq-e-tafweez
The doctrine of ‘tafweez’ or delegation of power is an important topic of the Muslim Law of divorce. A husband may, either himself, repudiate his wife or delegate this power of repudiating her to a third party, or even to his wife. Such a delegation of power is called tafweez. [17] An agreement made either before or after the marriage providing that the wife would be at liberty to divorce herself from her husband under certain specified conditions such as in case the husband marries a second wife or fails to maintain her for a specified period, is valid, provided first, that the option is not absolute and unconditional and secondly, that the conditions are reasonable and not opposed to public policy.
In Mohd. Khan v. Mst. Shahmali[18] there was pre nuptial agreement according to which the defendant agreed to live in the plaintiff’s parental house and if he would leave that house, he would pay certain specified sum to the plaintiff in default of which the condition would operate as divorce. It was held that the condition was not unconscionable and opposed to public policy, violation of such term would operate as divorce between the husband and wife.
The wife exercising her power under the agreement must establish that the conditions entitling her to exercise the power have been fulfilled. In such cases, the mere happening of the contingency is not sufficient, the wife must clearly establish first that events entitling her to exercise her option have occurred, and secondly, that she actually exercised her option.
It is noteworthy that in case of talaq-e-tafweez, the wife does not divorce her husband and this she cannot do under Muslim Law but divorce herself on behalf of the husband under his power delegated to her by him. Under the Muslim Law, when under the contract the wife is empowered to divorce herself in specific contingencies which she exercises at the happening to any of them, the divorce will take effect to the same extent, as if it has been pronounced by the husband. It does not require any declaration from a Court of law.
The Court held that the power to give divorce which primarily belongs to the husband may be delegated to his wife either absolutely or conditionally. Since this is not prohibited by the personal law of the parties therefore it is quite open to her to divorce herself. The Court further held that the wife in the instant case was very much a divorced woman when she dissolved her marriage by virtue of authority delegated to her and executed a divorce deed before the Muslim Marriage Registrar and Kazi and it cannot be said that the marriage was still subsisting as no specified contingencies had taken place.
4.2 Valid and reasonable conditions
The following conditions were held to be valid and reasonable, and where there was an agreement that the wife would have the power to divorce herself if they were not fulfilled, it was held to be binding on the parties:- [19]
- a)The husband should live a respectable life and should earn and his livelihood. He should maintain his wife and should live in a house approved by her.
- b)The husband should not beat or ill-treat his wife and if he oppresses her wrongfully she will be entitled to reside at her father’s house and realize a maintenance charge from him.
- c)The husband should allow his wife to be taken to her father house 4 times a year or that if the wife be in need of going to and coming back from her fathers residence he would send her there and bring her back at his own expense.
- d)The husband would not contract a second marriage without the consent of his wife unless she be either barren or perpetually ill.
- e)The husband should pay her dower on demand and that the husband would not take any remission of dower from the wife except in the presence of her relations.
4.3 Talaq-i-tafwid and stipulations in a Muslim marriage contract
In order to come within this exception, the contract must be in writing and registered. Given the possibility that the contract may be liable to impeachment on the grounds of lack of consideration, it is obviously advisable that any contract between the spouses executed some time after the marriage be registered under the Registration Act. Such a course would have the affect of avoiding altogether or at least greatly simplifying litigation should the husband attempt to avoid the contract subsequently.
In this case, however, the Court held that the agreement between the spouses had been executed as a means of compromising a suit for restitution of conjugal rights and the wife’s surrender of her defenses in that suit constituted sufficient consideration to validate the contract. Second wife in the presence of the first. But since such a contract can neither prevent the husband from marrying another wife nor render such a subsequent marriage invalid, the High Courts have refused to hold that the contract was one in restraint of marriage. The importance of such a contract is in defining the rights of the first wife should the husband break the agreement and marry again. “Public policy” — which undoubtedly covers a broad and vague legal terrain – is probably the most important of these three concepts in the context of litigation on marriage contracts and contracts between husband and wife, simply because it continues to live on while the other two have been more or less securely laid to rest by the case-law accumulated to date. Courts of the subcontinent are, however, no more anxious to decide cases on the basis of “public policy” than are the English Courts.12 Repelling a “contrary to public policy” argument in 1929, the Lahore High Court,
In Muhammad Ali Akbar v. Fatima Begum[20] quoted Lord Davey’s remarks in Janson v. Driefontein Consolidated Mines, Ltd[21] as “Public policy is always an unsafe and treacherous ground for legal decision.” Four years later the same Court considered an agreement between a husband and his wife whereby the husband agreed that should he take a second wife, the first wife would be entitled either to exercise the delegated power of talaq or to reside separately and receive a monthly allowance of Rs.75. The Lahore High Court upheld the contract and observed: An agreement such as… that signed by the husband is permitted by Mohammedan law and it certainly cannot be said to be opposed to public policy. I am unable to see anything “monstrous” or mad in the deed which, in
my opinion, was a reasonable one for a husband to execute in favour of a wife who looks for treatment such as emancipated Indian women naturally consider they have a right to insist upon. (Mst. Sadiqa Begum v. Ata Ullah)[22]
In the result, and in spite of the sophistry of legal argument not infrequently advanced on behalf of litigants, the basic criterion for ascertaining the legal validity of contracts of the nature under discussion is “reasonableness,” and the Courts of the subcontinent have demonstrated a marked reluctance to hold Muslim marriage contracts or contracts between Muslim husband and wife “unreasonable.”
4.4 Revocability
A delegation of authority to pronounce talaq, as mentioned previously, is not revocable. The question here is of the power of the husband to revoke the talaq pronounced by the recipient of that authority. It is probably not without significance that the examples found in the Hanafi texts of delegations of authority to pronounce talaq made at the time of marriage (i.e., in the actual exchange of consents) and in pre- and post-nuptial contracts generally appear to involve the use of an” ambiguous” expression, which (as translated) refers to placing the business of the wife in her hands. The significance of this is that the talaq renounced under such authority is irrevocable. Interestingly, Maliki texts explicitly declare that talaq-i-tafwid, pronounced by a wife empowered so to act by her marriage contract andwhose marriage has been consummated, results in an irrevocable talaq.
4.5 Ambiguous and express delegations
As might be expected, the Hanafi texts discuss a variety of ways in which the delegation of authority to pronounce talaq may be made and the effects of the different formulations. As a general proposition, if the words of delegation do not employ the word “talaq” (or one of its grammatical variations), the pronouncement by the wife (or other recipient of the delegation) results in an irrevocable talaq, if talaq were what the husband intended in using the words he did. On the other hand, if the word “talaq” (or one of its grammatical variations) were used in making the delegation, the talaq pronounced under the delegated authority is revocable (by the husband) — unless the husband in making the delegation had authorized the pronouncement of a talaq bain (irrevocable) or a triple talaq, and the pronouncement were made in these terms. (The person empowered by the delegation may make a pronouncement of lesser impact than allowed by the terms of the delegation, but may not exceed the authority delegated.
There are also in the Hanafi texts, illustrations of four distinct situations in which a delegation of the right to pronounce talaq may be made.
4.5.1 Casual delegations
Most of the examples in the texts are of what might be termed “contemporaneous” or “casual” (as opposed to “contractual”) delegations. The delegation is made in the course of a conversation between the spouses or in a discussion at which they and others are present (e.g., possibly a discussion concerning the couple’s marital problems and involving relatives of the spouses). In the “contemporaneous” delegation, the authority delegated (although irrevocable like any other delegation) will expire very quickly if not acted upon immediately, unless the words used in making the delegation indicate otherwise. The delegation may be so worded as to convey authority that will endure for days, months, or permanently. It may also be so worded as to confer authority exercisable only should a particular set of circumstances arise.
4.5.2 Post-nuptial contracts
A second situation involves a post-nuptial agreement in which the husband’s undertaking is sanctioned by a delegation of the right to pronounce talaq which the wife may exercise should the husband default on his promise. Such post-nuptial agreements may be executed some time after the marriage. Equally, they may be made immediately after the exchange of consents and as part of the marriage rites themselves. There is no reason (from the perspective of Muslim law) why a blanket delegation may not be made in a post-nuptial agreement or by means of a unilateral post-nuptial grant. [23]
4.5.3 Delegation as part of marriage consents
The third situation involves a delegation made at the time of the marriage and incorporated in the actual exchange of consents. E.g.: When the proposal comes from the woman… and she says, “I have given myself in marriage to thee… on condition that the authority (in the matter of divorce) is in my hands, so that I may divorce myself whenever I choose,” and the man then says, “I have accepted,” then… the marriage is valid and… the authority (in the matter of divorce) will be in her hands. Note that the terms used in this example confer upon the wife a permanent and completely unrestricted right to pronounce talaq at her pleasure.