Talaq-i-tafweez is also known as Talaq-i-Tawhid. Literally, tafweez means ‘delegate’. A Muslim husband can delegate his power of pronouncing talaq to his wife or to any other person. But such power does not deprive the husband of his own right to pronounce a talaq.
A Muslim husband is entitled to pronounce a talaq. He is also entitled to delegate his power to another person to do so. He may confer the power upon the wife herself or a third party to repudiate the marriage.
Divorce by such person who acts as an agent of the husband under his authority is known as delegated divorce. In the delegated divorce, the talaq pronounced by that other person is as effective as if it was made by the husband himself and the marriage dissolves.
CAPACITY TO DELEGATE THE POWER:
- A husband who is of sound mind, and
- Who has attained the age of puberty may delegate his right of pronouncing talaq.
- If a husband becomes insane after delegating his power, the delegation will not be invalidated. It is not necessary that the wife or any other person, to whom the power is delegated, should also have attained the age of puberty.
- A Muslim husband has unrestricted right to divorce his wife whenever he likes. This right is so absolute that he may exercise it either himself or may delegate his right to another person, including his own wife.
- A Muslim 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.
- 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. An agreement made with her giving such power will be deemed to be tafweez and binding on the husband.
- Such a talaq, although made by the wife is, by virtue of the delegation, really a talaq by the husband and operates effectively as a talaq by the husband himself. It does not require any declaration from a court of law. The power given to her is itself sufficient.
KINDS OF TAFWEEZ:
The power to pronounce talaq may be conferred in three forms of expressions, two of which are implied forms and the third, an express form. They are:
1. IKHTIYAR (CHOICE OF OPTION) e.g., the husband telling his wife, “Choose” or using a similar expression (thereby intending a talaq); delegation of power is implied. By ‘giving the choice’ is meant giving her, the choice to get rid of the matrimonial tie. This delegation of power of divorce to wife may be for a day, a certain period of time or for all the times to come. This delegation may be made subject to certain conditions, such as; a husband may say if the maintenance does not reach you, you are given the choice, etc. However in any case, the delegation of power of divorce must be within the knowledge of wife who had accepted it.
It is also important to note by what words power was delegated to wife by the husband, and similarly at the time when wife divorces herself. Wife must say ‘I am divorced’ or I divorce myself’ and not ‘I divorce thee’ because it is the wife who is divorced and not the husband.
2. AMR-BA-YED OR LIBERTY:
In a delegation of liberty, divorce takes place according to the number mentioned by the wife independent of the husband’s intention and the divorce which follows is irreversible. If, for example, a man says to his wife “your business is in your own hands, intending three divorces, and the woman answers.”I have myself with one choice, three divorces take place. The proof of this is drawn from the nature of these expressions in their original idiom. But if the woman were to reply I have divorced myself with one divorce or I have chosen myself by one divorce, one divorce takes place and this divorce is irreversible, although the reply be delivered in express and not in ambiguous terms, because it bears relation to the words of the husband, which being an implication, amounts to a delegation of irreversible divorce and not of reversible divorce. The reason why an intention of three divorce is admitted in the present instance is that the word “your business is in your own hands” are capable of both a restrictive and an extensive construction, and hence may imply three divorces, as well as one, an intention to that effect, therefore holds good since that is one of the senses in which the word may be taken contrary to the expression considered in preceding section ‘chosen’ that being incapable of bearing an extensive construction.
In Amr-ba-yed also it is necessary to use the word self or some analogous expression. In case of express delegation (Ikhtiyar) the husband has no power to recall the authority once entrusted. The only difference between the two is that in Ikhtiyar, the intention to give an irrevocable divorce at once is not valid. Where as in Amr-ba-yed it is when a man tells to his wife “thy business is in thy hands”, his intention being to give her the power of divorcing herself, and she is present and has heard what he said, the power is in her hands whilst she continues at the place. If she was absent, and the options were given in general terms, she may exercise it at any time whilst at the place where the intelligence reached her. But if it were restricted to the particular time, and intelligence reached her before the expiration of period, she has only the remainder of time for the exercise of power, whilst if the time has expired, there is no option. When a husband does not intend to divorce by these words, “Thy business is in thy hands”, they are of no avail except when uttered in anger or in conversation regarding Talaq.
3. MASHIAT OR WILL
The expression Mashiat or pleasure or option means that it depends on the pleasure of wife whether to divorce her or not to do so. Thus, the husband may say to his wife “meaning that he has given the power to her to divorce herself or not to do so as she may please. Mashiat is similar to the “Amr-ba-yed” or liberty form of delegation with the difference that in case of Mashiat, the exercise of the power is absolutely at the pleasure or the will of the party to whom power is delegated.
Therefore, where a man empowers his wife to divorce herself in express terms, the divorce, which follows, is reversible. Therefore, if a man says to his wife ” divorce yourself intending one divorce and the woman replies I have divorced myself then a single reversible divorce takes place. And if she were to say ” I have given three divorces, then three accordingly take place where such is the intention of the husband. The reason of is this that divorce being a general expression takes place in the lowest species, but like other generic nouns, it also applies to the whole. An intention of three divorces is admitted and, where there is no particular intention, a single reversible divorce takes place because the power of divorce is delegated to the wife in express terms and express divorce occasions a divorce reversible.
It is also worth to mention here that power of divorce delegated to the wife by the husband under the doctrine of Mashiat cannot be retracted. Therefore, where a husband says to his wife, “divorce yourself, he is not at liberty to retract, as his expression involves a vow because he has, in this instance suspended upon the execution of it by his wife, and a now is an obligatory act, for which reason a man is not allowed to recede from it. The power may be granted generally. As, where a man says to his wife divorce yourself when you please. She is at liberty to divorce herself either upon the spot or at any time in future, because the expression used by the husband seems to be of general nature and extends to all the time and hence it is the same as if he were to say, ” divorce yourself at whatever time you like. Where a man says to the another person, divorce my wife”, the person so addressed may divorce her either upon spot or at anytime and the husband may also retract, because this is a commission of agency and, therefore is neither absolute nor restricted in point of place. Contrary to it where the husband says to his wife “divorce yourself, this being a transfer of power not commission of agency as the woman thus addressed acts from herself and not from another. But if a man says to another “divorce my wife adding, if you please”, the man so empowered may divorce the wife upon spot only and here the husband may not retract. The argument of Islamic doctors is that the words of the husband are a transfer of power as he suspends the divorce upon the will of the person whom he addresses and he is the principle who act from his own will.
This rule is technical and what is necessary is that the wife should make it quite clear that she is divorcing herself under the power delegated to her. But of course there should be no ambiguity in the expression used by her. She must make it fully clear that she was dissolving the marriage and completely severing the relationship of the husband and wife. The wife has to address the husband if he is present. If he is absent then she has to inform him that she has divorced herself. When the husband vests this power in his wife, she does not become entitled to act on her own behalf but acts only as a representative or agent of the husband. Hence if she says to her husband, “I have divorced thee”, then this statement will be ineffective because actually she represents the husband. Moreover, divorce is attributed to a woman and not to a man. She has, therefore, to use an expression like the following, “I am unlawful on thee”, “I am absolutely separated from thee.”I divorce myself on thy behalf or “I divorce myself under the power delegated to me be thee”.
TIME OF DELEGATION:
The power of pronouncing divorce may be delegated by the husband to the wife either at the time of marriage or subsequent thereto. If the power has been conferred before the marriage has taken place, it must be so intended as to take effect after marriage. Thus, under the provisions of Muslim law, the option of Talaq can be delegated at any of the three stages, namely.
a) Prior to the marriage; or
b) At the time of marriage; or
c) Subsequent to the marriage.
The Muslim Jurists hold that delegation of the power is perfectly valid at whichever of these stages it is given. The time of delegation does not, under the Muslim law, affect the validity of delegation in any way. Most of the authorities on Muslim law have discussed the cases of delegation of the power to the wife after marriage. They have also given instances when the power was given prior to the marriage.
EFFECT OF DELEGATION
The effect of delegation of the power of the divorce by the husband to his wife is that she becomes authorized to exercise that power as a representative of her husband and the pronouncement of divorce by the wife amounts to her husband’s pronouncing it. There is no difference between a husband agreeing that he shall be held to have divorced his when a certain contingency arises and a condition allowing the wife to divorce herself upon certain contingency. The power of pronouncing divorce delegated by the husband to his wife is irrevocable, as an option conferred on her.
The above discussion leads to the conclusion that the delegation of the right of effecting divorce is, in fact, an option given to the wife for effecting divorce on herself. The giving of an option means offering a chance to his wife who is given option to pronounce to herself in appropriate circumstances and on her own volition. When the husband gives his wife the option of effecting divorce, he rather authorizes his wife that she may effect divorce to herself and sever the relationship of the husband and wife between them, if she likes. It is evident that the wife, in such circumstances, acts in her own right.
Hence, by the delegated divorce it does not mean that the woman will give divorce to her husband. Instead it means that she has the delegated right of pronouncing Talaq upon herself.
The husband after delegation to his wife of the right or option to divorce herself, cannot revoke it, because, wife then becomes the owner of the option in her own right. She may in her own discretion, exercise that option or not.