Is a stipulation between husband and wife, conferring the right on the wife to divorce herself permissible under Mohammedan Law? If so, is it conditioned by prerequisites? What are the principles in which Mohammedan Law recognized such a stipulation?

Question: Is a stipulation between husband and wife, conferring the right on the wife to divorce herself permissible under Mohammedan Law? If so, is it conditioned by prerequisites? What are the principles in which Mohammedan Law recognized such a stipulation? [DJS 1991]

Find the question and answer of Muslim Law only on Legal Bites. [Is a stipulation between husband and wife, conferring the right on the wife to divorce herself permissible under Mohammedan Law? If so, is it conditioned by prerequisites? What are the principles in which Mohammedan Law recognized such a stipulation?]

Answer

The husband in Muslim law has the power to delegate his own right of pronouncing Talaq to some third person or to the wife herself. The person to whom the power is thus delegated may then pronounce the divorce accordingly. Such a delegation of power is called 'tafwid'. The husband may delegate the power absolutely or conditionally, temporarily, or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. The delegation must be made distinctly in favour of the person to whom the power is delegated and the purpose of delegation must be clearly stated.

A stipulation that, under certain specified conditions, the wife can pronounce divorce upon her has been held to be valid provided:

• First, that the option is not absolute and unconditional and

• Secondly, the conditions are reasonable and not opposed to public policy.

This doctrine of delegated divorce is peculiar to the Muslim Law and has no parallel in other systems.

Fyzee says:

'This form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain her freedom without the intervention of any court and is now beginning to be fairly common in India.'

In Hamidoola v. Faizunnissa, (1882) 8 Cal. 327, the court has clearly stated that 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. The power so delegated to the wife is not revocable, and she may exercise it even after the institution of a suit against her for restitution of conjugal rights.

Thus, 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.

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