Two Muslims A and B were married on 18.6.85. It was agreed by the parties that if A took a second wife, B will have a right to pronounce divorce to herself. A took a second wife on 10.4.87. B pronounced divorce on 20.4.87. Is it a valid divorce?

Question: Two Muslims A and B were married on 18.6.85. It was agreed by the parties that if A took a second wife, B will have a right to pronounce divorce to herself. A took a second wife on 10.4.87. B pronounced divorce on 20.4.87. Is it a valid divorce? [HJS 1988]

Find the question and answer of Muslim Law only on Legal Bites. [Two Muslims A and B were married on 18.6.85. It was agreed by the parties that if A took a second wife, B will have a right to pronounce divorce to herself. A took a second wife on 10.4.87. B pronounced divorce on 20.4.87. Is it a valid divorce?]

Answer

The contract of marriage under the Mohammedan law may be dissolved in any one of the following ways:

(1) by the husband at his will, without the intervention of a Court;

(2) by mutual consent of the husband and wife, without the intervention of a Court;

(3) by a judicial decree at the suit of the husband or wife.

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.

A wife cannot divorce the husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. The wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she may, in some cases, obtain a divorce by judicial decree. Under an agreement, the wife may divorce her husband either by Khula or Mubarat.

The power of talaq may be delegated to his wife, and as Faizee observes,

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

In Md. Khan v. Shahmali, AIR 1972 J&K 8, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay a certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred the power to pronounce divorce on his wife. The husband left his father-in-law's house without paying the amount. The wife exercised her right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her.

In the present case at hand, A and B had a prior agreement in place which clearly stated the condition of the wife, i.e. if A took a second wife, B will have a right to pronounce divorce to herself. Thus, when B pronounced divorce to A, upon him remarrying, it will be considered a valid divorce legally.

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