A Muslim wife has no independent right of divorce. She cannot divorce her husband whenever she likes, as her husband may do. Under Muslim law, divorce by wife is possible only in the following situations:
(a) Where the husband delegates to the wife the right of Talaq (Talaq-e- Tafweez).
(b) Where she is a party to divorce by mutual consent (Khula and Mubarat).
(c) Where she wants to dissolve the marriage under the Dissolution of Muslim Marriage Act, 1939.
In the first two cases the wife’s right of divorce depends upon the consent of her husband. In Talaq-e-Tafweez, unless the husband himself gives her the right to pronounce Talaq, she cannot divorce. In a divorce by mutual consent, she cannot get divorce unless the husband also gives his consent or it.
Under the Dissolution of Muslim Marriages Act, 1939, the dissolution of marriage depends upon the decision of the court. In other words, a Muslim wife cannot divorce without her husband’s consent or without a judicial decree.
Delegated Divorce (Talaq-e-Tafweez):
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. In other words, instead of pronouncing the Talaq himself he may give his right of divorce to anyone else, including his own wife.
Divorce by such other person, who acts as agent of the husband under his authority, is called Talaq-e-Tafweez or 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.
The husband may delegate his right of divorce to his own wife and authorise her to pronounce Talaq. According to Fyzee, 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. The authority is given to the wife under an agreement at the time of the marriage or any time after it.
The delegation of the power of divorce to the wife may either be permanent or temporary i.e. only for a specified duration. A temporary delegation of power is irrevocable but a permanent delegation may be revoked by the husband.
The delegation (Tafweez) may be unconditional or subject to certain condition or contingency. Where the delegation is conditional, the authority of giving Talaq cannot be exercised until that condition is fulfilled. The general practice is to delegate the power of divorce to the wife upon the husband’s failure to fulfill certain conditions or upon the happening of an event. But the conditions must be of reasonable nature and must not be against the principles of Islam.
Where a right of divorce has been conferred upon the wife, she may repudiate the marriage if the husband fails to fulfill that condition or upon the happening of that event. In such cases the divorce takes place in the same manner as if the husband has himself pronounced the Talaq. For example, under an agreement of Tafweez the husband may authorise his wife to divorce herself whenever his behaviour is cruel towards her or when he refuses to pay the prompt dower.
In Sainuddin v. Latifunnessa, there was an agreement between husband and wife under which the husband delegated to the wife his own power of giving three Talaqs in the event of his marrying a second wife without the permission of the first.
The husband took second wife without the permission of the first. Accordingly, the first wife gave herself three Talaqs under the authority of the Tafweez. It was held by the Court that as the event upon the happening of which the wife was given the authority to divorce herself was valid under Muslim law, and since that event has happened, the divorce by the wife was effective and the marriage must dissolve.
It is significant to note that right to delegate the authority of Talaq to another person is husband’s own authority alone. If the husband delegates his authority to wife in writing and the wife also puts her signature on that document the delegation continues to be his own authority given to wife; it does not become divorce by mutual agreement or does not a bilateral delegation.
In Magila Bibi v. Noor Hassain, the husband had given a written authority to his wife that she may, at her will, divorce him whenever she wanted. The document was signed by husband and wife both. After some time, when she felt that husband was cruel to her and also came to know that he was not a medical graduate as she was told before the marriage, she pronounced.
Talaq under the above mentioned written delegated authority. She informed her decision to husband. It was held by Calcutta High Court that only because wife too had signed the written delegation by husband, the document does not become ‘bilateral delegation.’
It continues to be ‘unilateral delegation’ and Talaq by wife is valid even without the consent of husband. The court observed further that since the Talaq under delegated authority is valid, the wife as divorced woman is entitled to claim her right of maintenance etc. under the Muslim Women Act. 1986.
Where a wife is given the option to divorce herself under a Tafweez, she cannot be compelled to exercise her right. She may or may not exercise the right. Mere happening of the event under which the wife is authorised to divorce herself, is not sufficient to dissolve the marriage; the wife must also exercise her right expressly.
It is to be noted that after delegating his authority the husband himself is not debarred from pronouncing Talaq.