The husband may confer his power of giving talak (talaq) on any third person, including his wife. Therefore, an agreement, made either before or after the marriage, by which it is provided that the wife would be at liberty to divorce herself from her husband under certain specified contingencies is valid.
A Muslim husband may repudiate his wife in person, or he may delegate the power of repudiating her to a third party, or even to the wife herself. Such a delegation is called tufweez and the talak is called talak-i-tufweez or talak-i-tufweed, i.e., talak by delegation of power. When such authority is delegated to the wife, in form, it is divorce of the husband by the wife; but in law, it operates as talak of the wife by the husband.
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ADVERTISEMENTS:
Applying this doctrine, it has been held that an agreement between a husband and his wife, under which the husband authorises the wife to divorce herself from him in the event of his marrying a second wife without her consent, is a valid agreement. (Moharam Ali v. Ayesa Khatum, (1915) 19 Cal. W.N. 1226)
Problem:
A enters into an agreement before his marriage with B, by which if is provided that A should pay В Rs. 400 for dower on demand, that he should not beat or ill-treat her, that he should allow В to be taken to her father’s house four times a year, and that if he committed a breach of any of the conditions, В should have the power of divorcing herself from A.
Sometime after the marriage, В divorces herself from A, alleging cruelty and non-payment of dower on demand. A then sues В for restitution of conjugal rights. Is A entitled to succeed if B’s allegations are proved?
Ans:
No. This is a clear case of tufweez. The divorce is vaild, and A is not entitled to restitution of conjugal rights. He will not succeed if B’s allegations are proved. (Hamidoola v. Faizunissa, (1881) I.L.R. Cal. 327)