A entered into an agreement with her husband B by which the husband authorized the wife to divorce herself from him in the event of his marrying a second wife without her consent. Is the agreement valid under Mohammedan Law?

Question: A entered into an agreement with her husband B by which the husband authorized the wife to divorce herself from him in the event of his marrying a second wife without her consent. Is the agreement valid under Mohammedan Law? Give reasons. [DJS 1979]

Find the question and answer of Muslim Law only on Legal Bites. [A entered into an agreement with her husband B by which the husband authorized the wife to divorce herself from him in the event of his marrying a second wife without her consent. Is the agreement valid under Mohammedan Law? Give reasons.]

Answer

Although the power to give divorce belongs primarily to the husband, he may delegate the power to the wife or to a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly.

An agreement made, whether before or after marriage, by which it is provided that the wife should be at liberty to divorce herself in specified contingencies is valid if the conditions are of a reasonable nature and are not opposed to the policy of the Mohammedan law. When such an agreement is made, the wife may, at any time after the happening of any of the contingencies, repudiate herself in the exercise of the power, and a divorce will then take effect to the same extent as if a talaq has been pronounced by the husband.

It was held by the Court in Maharam Ali v. Ayesa Khatun, 31 Ind. Cas. 562, that an agreement between husband and wife by which the husband authorizes the wife to divorce herself from him in the event of his marrying a second wife without her consent is valid.

So, in the present case at hand, the agreement reached between A and B is that in the event of the husband marrying a second wife without her consent, she will be at liberty to divorce him. Such an agreement is valid under Mohammedan Law. The agreement in the above case may be supported by the doctrine of tafweez, which is an essential part of the Mohammedan law of divorce. It is a case of repudiation by the wife under the authority of the husband, in other words, as a talaq by tafweez. Such a divorce, though it is in the form of a divorce of the husband by the wife, operates in law as a talaq of the wife by the husband.

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