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Delegation of Talaq

Question:


Marriage registration is mandatory in all countries. As far as I know, Islam has not given the power of divorce to women, but they can ask for divorce from their husbands. In many countries, there is a column in the registration form asking (from the Husband) whether you have given the power of divorce to your wife. The registrar gives the girls the power of divorce without asking the husband. In some cases, they add some conditions to it. What I want to know is if the husband has not given this power to the wife in the true sense, and if the wife divorces in that situation, then the divorce will happen in Islam. And is this process acceptable in Islam?


Answer:


Assalamualikum wa rahmatullahi wa barakatuhu,



According to Shariah, the right to divorce belongs primarily to the husband and not the wife. There are many reasons and wisdoms behind this ruling.


However, although the power to issue a divorce belongs in principle 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 Once this power is delegated, it can not be revoked or withdrawn.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 “Tafwid”.


This is based upon the 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, 28)


Imam al-Sarakhsi (Allah have mercy on him) states:


“If a man delegates the right to divorce to his wife, then this is similar to giving an option (khiyar) in trade, except that this is completely valid and logical, for the husband is the owner of issuing the divorce, thus he is in a position of delegating something that he owns. Hence, it will be binding, in that the husband will not have the right to revoke this delegation.” (al-Mabsut, 7/221)


There are certain rules and regulations with regards to this delegation that need to be understood properly:


1) When the husband delegates the right to divorce to 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 (e.g. 5 years) or permanently, then she will have this right accordingly. (Radd al-Muhtar & al-Ikhtiyar)


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. (Radd al-Muhtar)


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 can not overturn or revoke it. (Durr al-Mukhtar)


5) If the right to divorce was delegated for a specific period of time and the wife did not utilize this right in that period, then upon the termination of this period, the right will also no longer remain. (al-Ikhtiyar)


6) By delegating the right to divorce, the husband still has a right to divorce his wife. Delegation of this right does not imply that the husband no longer has a right to issue a divorce. (al-Ikhtiyar)


7) If the wife rejects accepting this right of divorcing herself, then if the delegation was permanent, her rejection will be of no consequence, in that she will still have this right permanently despite rejecting the offer. However, if this delegation was not permanent, then by rejection, the right to divorce will terminate. (al-Ikhtiyar)


Conclusion:

From what we have understood from your situation is that 1. The wife did not initiate this delegation. 2. You did not consent to it (you did not mark the column saying you give the power of divorce to your wife-to-be, registrar did it himself)

3. There was no such talk before or at the time of Nikah.

Hence, we conclude that divorce was not delegated to your wife and she cannot divorce herself and if she did, it won't be considered valid in our Sharia and she will still be your wife.


And Allah knows best

Mufti Umer Farooq Saleem

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