1

Table of Contents
1. Abstract........................................................................................................................2
2. Introduction..................................................................................................................3
3. Understanding the Concept of Divorce........................................................................4
4. Legitimacy of Delegated Divorce in the light of Shariah............................................5
4.1 Under the Verses of the Quran.....................................................................................5
4.2 Under the Traditions of the Holy Prophet...................................................................6
4.3 Opinions of the jurists on the authorization of Delegated Divorce after the contract 7
4.3.1 Opinion of Hanafi Jurists.........................................................................................7
4.3.2 Opinion of Maliki jurists.........................................................................................8
4.3.3 Opinion of Shafʿi jurists..........................................................................................9
4.3.4 Opinion of Hanbali jurist.........................................................................................9
4.3.5 Opinion of Shia scholars........................................................................................10
4.3.6 Opinion of Zahiriyya School.................................................................................10
4.4 Opinions of the jurists Legality of right of delegation of divorce before the contract
11
4.5 Revocation of the delegated power of divorce..........................................................12
4.6 Divorce by way of Delegation is Tala’q e Rj’ii or Tala’q e Bain?............................13
5. Delegation of divorce in Pakistani laws.....................................................................15
5.1 Development of Right of Delegated Divorce.............................................................15
5.2 Laws governing the Right of Delegated Divorce.......................................................17
5.2.1 Islamic Ideology Counsel’s stance on Delegation of Divorce..................................18
5.3 Rules governing the Revocation of Delegated divorce...............................................18
5.3.1 Procedure to be followed while Exercising the right of Delegated Divorce............19
5.4 Caselaws under delegated divorce...............................................................................19
6. Conclusion..................................................................................................................23
7. Bibliography...............................................................................................................24
 2

1. Abstract
Since, the nature of Muslim marriage is contractual in form, the parties to the marriage

are allowed to make certain agreements and conditions marriage for regulating their

marital relations. Delegation of the power of pronouncing talaq ( Talaq-i-Tafweez) is one

of them. Talaq-i-tafwid, therefore, in some situations, can become another convenient

alternative to dissolve the marriage by both man and woman. Delegation of divorce and

its revocation is a key problem in the discipline of Muslim family matters, which was

particularly highlighted by Muslim scholars in Pakistan following the passage of the

Muslim Family Law Ordinance 1961 in this respect. In fact, the legitimacy of the subject

is unquestionable in ancient Muslim jurisprudence due to its establishment by the legal

texts of the Holy Quran and Sunnah, This article will address questions such as what are

the Islamic provisions concerning the delegation of power of divorce before and after the

marriage? In addition, what is the opinion of jurists, upon delegation of the right of

divorce at the time of the contract? Can the power of delegation of divorce be

withdrawn? Furthermore, this sudy will highlight the stance of Pakistani laws upon the

right of delegation of divorce and what are the procedures followed in the Pakistani

courts.
 3

2. Introduction
The delegation of divorce power is also an important type of divorce originated by

Islamic law, yet its legitimacy in Islamic law has proven to be an exception to the general

laws of divorce because divorce is the right of the husband according to Islam. It is a

critical issue in today's society, despite the fact that it was introduced by the Islamic legal

system earlier. There’s a difference between the mandate before and after the contract

according to Muslim jurists. Divorce according to the legal contract, is an original right

of the husband, but is it permissible for the husband to delegate his right to his wife or

not? This issue needs to be clarified, and its Islamic ruling should be illuminated in the

light of the Qur'an, Sunnah, and the opinions of jurists. . Similarly, the revocation of

delegation is a crucial component of the issue that has been overlooked by the legislative

text of the Muslim Family Law Ordinance 1961.This research has been divided into three

sections: The first part of this article will explain the understanding of divorce, its status

of legitimacy under Islamic law through Quranic verses, and the traditions of the Prophet

(PBUH). The second part of this article discusses the opinons of Islamic jurists of

different school of thought including four Hanfi schools, zahiriyya and shia school of

thought regarding the delegation of right of divorce and it also explains the rules of

revocation under Islamic context. The third and last section explains the deep

understanding of the rules governing in Pakistan related to delegation of divorce and its

revocation and it also clarifies the procedure followed for the delegation of divorce in

Pakistani courts along with the caselaws.

 4

3. Understanding the Concept of Divorce

The Arabic word for divorce is talaq which literally means ‘to release’ or "freeing or

undoing the knot".1 As a term of Islamic jurisprudence, Muslim jurists defined it from

different characteristics, as the author of Al-āikẖtiar 2 stated that this is to annul the

marriage contract which binds the couple together, and other Jurists also similarly

defined it. The conclusion is that divorce is the removal of the restrictions imposed by the

marriage contract complying with the contractors' permission, whether the witnesses are

present or not, because the certificate is not a condition for divorce to occur legally in

Islamic law, so, divorce happens without a certificate, if one of the spouses acknowledges

it.

As for the delegation of divorce rights in the term, it is the transformation of the right of a

husband to any other person to divorce her wife, or to his wife to divorce herself.

Moreover, the doctrinal guidance of the delegation of this right is as stated in the Al-

muḥiṭ Al--burhani3

The basic principle of this is that, the husband has the privileges of divorce
himself. So, the delegation of this right to another individual or authority
depends on the knowledge, because, the authorization of wife to divorce
herself includes the sense of transferring the ownership to her, because, in
the case of her carrying out of the power, she is functioning for herself
without the husband.

Its mean that al-tafwīḍ is technically in the field of Islamic Law is passing on right of

divorce to wife or any other with consent. Islamic jurists (fuqaha) have divided the

delegation of the power to divorce by the husband into three classes, namely, tafwid (that

1
Dr. Wahbah Al-Zuhaili, Al-Fiqh Al-Islami Wa Idaltuhu, vol. 7 (Damascus: Dar ul fikar, 1985), 414.
2
Al-Musali Abdullah bin Mahmood, Al-Aikhtiar Litaʿlil Al-Mukhtar, vol. 3 (Cairo: maktabatu al-ḥalbi,
n.d.), 121.
3
Mahmood bin Ahmad Al-Bukhari, Al-Muḥiṭ Al-Burhani Fi Al-Fiqhi Al-Numani, vol. 3 (Beirut: Dar ul
Kutub al- ilmiyyah, 1424), 239.
 5

is delegation), tawkil (agency), and risalah (messenger-ship). Here the delegation of the

right of divorce to the wife (tafwid) will be discussed.

4. Legitimacy of Delegated Divorce in the light of Shariah

4.1 Under the Verses of the Quran
The legitimacy of the al-tafwīḍ ordained by the text of Holy Qur’an and prophetic

traditions, as well as, the Muslim jurists has unanimously accepted the validity of al-

tafwīḍ in Islamic law. One of the precedents in the life of the Holy Prophet (peace be

upon him) is the choice given by the Prophet (peace be upon him) to his wives, which is

mentioned in Holy Book of Allah almighty 4. The verse mentioned is called the verse of

choice, because, the Prophet gave the choice to his wives between the world, i.e. divorce

and between God and his Messenger, i.e. to maintain the marital relationship with the

Prophet (peace be upon him), it was rectified by prominent jurists as stated in Aḥkām al-

Qurʾān that He gave them the option based on permission of Allah Almighty, to stay

married or get divorce, so they were chosen to stay with him, it was opined by Aisha,

Mujahid, Akrama, Al-Shaabi, Ibn Shihab and Rabia.5 Ibn Kathir6 interprets this verse as:

Allah commands His Messenger (SAW) to give his wives the choice of separating from

him so that they must go to someone else with whom they could find what they want of

the life of this world and its attractions, or patiently bearing the straitened circumstances

with the Prophet for which they will have reward from Allah. They chose Allah and his

messenger and the hereafter.

‫ٰۤي‬
4
‫ـَاُّيَها الَّنِبُّى ُقْل َاِّلۡز َو اِج َك ِاۡن ُك ۡن ُتَّن ُتِر ۡد َن اۡل َح ٰي وَة الُّد ۡن َيا َو ِزۡي َنَتَها َفَتَع اَلۡي َن ُاَم ِّتۡع ُك َّن َو ُاَس ِّر ۡح ُك َّن َسَر اًح ا َجِم ۡي اًل َو ِاۡن ُك ۡن ُتَّن ُت ِرۡد َن َهّٰللا َو َر ُس ۡو َلٗه َو الَّداَر‬
‫اٰاۡل ِخ َر َة َفِاَّن َهّٰللا َاَع َّد ِلۡل ُم ۡح ِس ٰن ِت ِم ۡن ُك َّن َاۡج ًر ا َع ِظ ۡي ًم ا‬
O Prophet, tell your wives: “If you seek the world and its embellishments, then come and I will make some
provision for you and release you in an honourable way. But if you seek Allah and His Messenger and the
Abode of the Hereafter, then surely Allah has prepared a great reward for those of you who do good. (Al-
Qur’an 33:28,29)
5
Muhammad bin Aḥmad Al-Qurṭabi, Al-Jamʿ Liʾaḥkam Ul-Quran, vol. 14 (Egypt: dar ul kutub al miṣriat,
n.d.), 170.
6
Abu al-Fida Ismail Ibn Kathir, Tafsir Ibn Kathir, vol. 7 (Riyadh: Darussalam Publishers, 2003), 672.
 6

This view is supported by another Quranic verse: the Qur’an describes the man

controlling the marriage tie,7 which implies that he may ‘release’ it by exercising the right

of divorce. However, the majority argues that the first verse quoted above allows a man

to delegate the right of divorce to his wife. It is reported by ‘Aishah that when the above

verse was revealed the Holy Prophet (PBUH) told her, “O ‘Aishah I am going to mention

to you something but you should not make a hasty decision until you consult your

parents” and then he narrated this verse. 8 In his opinion when a woman exercises her

delegated right of divorce it is considered like the third of the pronouncements of talaq

because the word tasrih in the verse literally translated, means the third repudiation: “The

divorce is twice, after that, either you retain her on reasonable terms or release her with

kindness.”9

4.2 Under the Traditions of the Holy Prophet

As it was narrated by Hazrat Aisha10: “After the revelation of this specific verse, I was the

first woman who was asked by Prophet in this regard, and he said: I'm reminding you of

something, and you don't have to hurry until you ask your parents. Hazrat Aisha Said: I

know my parents will never permit me to disintegrate with you. After that, the prophet

recited the said verse. Hazrat Aisha Asked: Is this a matter of consultation with my

parents, so I select Allah and his Messenger and the afterlife. Then he gave his other

wives the choice, so they said like Aisha said: It is understood from the said narration that

the choice is about divorce, because the word "parting" indicates divorce. Imam Malik

has narrated that: Abdullah bin Omar used to say: that if a man gives a choice to his wife,

7
Al-Quran, 2:237.
8
Badruddin Abu Muhammad Al-Aini, Umdatul Qari Sharah Sahih Al-Bukhari, vol. 2 (Cairo: Idaratul al-
tabat al Muneria, 1930), 237.
9
Al-Quran, 2:229. Qurtabi, ibid, p. 112.
10
Muḥammad bin Isma’il Al-Bukẖari, Al-Jamʿ Ul Ṣaḥiḥ, Bab Al-ʿraft Walʿlit Al-Mushraft, Hadith no,
2468, vol. 2, n.d., 1103.
 7

the judiciary will follow the rules of divorce, but if the man claims that, I have intended

this option for one-time divorce, his statement will be accepted.11

It indicates that the holy Qur'an and Prophetic traditions legitimized the delegation of the

divorce right, and the Companion of the Prophet also revised it in light of the Qur'an and

Sunnah. In the next section, we are going to reflect on the jurists' opinions on

authorization and its legal forms: delegation at the time of the contract and delegation

after the contract.

4.3 Opinions of the jurists on the authorization of Delegated Divorce

after the contract
4.3.1 Opinion of Hanafi Jurists
The Hanafi scholars argued that giving the choice is in fact, a kind of delegation of right,

as if the husband would say, “choose” The wife says, "I chose myself, or he says,

"Choose" and she says, "I choose". It is necessary to mention the word yourself or herself

in one of the two words, because of the occurrence of divorce. because, it is not a word of

divorce, but it is a metaphor, So, the three do not fall into it, but if he says to her, “choose

a divorce” he does not need to mention the word himself for the sake of specification.

Also if the husband says to his wife “Your matter is in your hand" she will be considered

owner of the right, If she answers "I divorced myself," the divorce occurred, And if the

husband intended three, it will be three, because in the case of antonomasia the intention

of the husband to be considered12. Marghanani elaborates that

if a husband says to his wife, ‘divorce yourself when you please’, she is at
liberty to divorce herself either on the spot or at any future period, because
the word extends to all times; and it is the same as if he were to say
divorce yourself at whatever time you like.13

11
Mālik Bin Anas Al-ʾaṣbaḥi, Al-Muaṭʾa, Hadith No, 2034, vol, 4, p, 794.
12
Muḥammad Bin Aḥmad Al-Samarqandi, Tuḥfat-Ul-Fuqha, 2nd ed., vol. 2 (Beirut: Dar ul Kutub al-
ʿilmiyyah, 1424), 190.
13
Burhanuddin Al-Marghanani, The Hedaya, trans. Charles Hamilton (London: Allen, 1870), 92.
 8

The duration of the authorization is based on words, if it is delegated at all, the current

session of discussion will be considered, if it is bound by a certain restriction, that

predetermined time will be the limitation of choice, and if he uses the word "whenever"

the authorization will be for an unspecified time 14.So, according to hanfi jurists the

delegation of divorce is permissible, because, the husband is an owner of this right, who

is entitled to dispose of his property, where he wishes, whether he acts in it himself or by

power of attorney or by delegation to his wife, he is free to do so.

4.3.2 Opinion of Maliki jurists

Maliki jurists also declared the delegation of Divorce right valid in Islamic law, so when

a husband use the word tamlīk (transfer of ownership) she would be considered the owner

to divorce herself, as stated in irshād ul sālik:

The woman is authorized to divorce herself is transfer of right, if she

answers with acceptance or deny, it will be accepted, and to show pleasure
is acceptance. If she divorce herself one time, the husband will no right to
object, but in the case of more than one, the intention of husband will be
prevailed.15

And the Maliki doctrine is not revocable and striking off its right after the authorization

in the form of ownership (tamlīk) and choice (takẖīīir), and in the power of attorney, he

has to isolate her from him.

Because the Malikis view it as more than just a transfer of ownership, they assert that its

rules is in accordance with the word that he indicates. As a result, the mandate may

occasionally take the form of a choice, a transfer of ownership, or a power of attorney.

14
Mahmood bin Ahmad Al-Bukhari, Al-Muḥiṭ Al-Burhani Fi Al-Fiqhi Al-Numani, vol. 3 (Beirut: Dar ul
Kutub al- ilmiyyah, 1424), 240.
15
Abd ul-Raḥman bin Muḥammad, Irshād Ul-Sālik Ili Ashraf Al-Msālik Fī Fiqh Al-Imām Mālik, vol. 1
(Egypt: maṭbaʿt muṣṭafa al-babi al-ḥalbi, n.d.), 69.
 9

Islamic law thus dictates that the laws and directives in each of these situations will

differ.

4.3.3 Opinion of Shafʿi jurists

It is permissible to delegate divorce in the doctrine of Shafi' school of thought, they say

that the authorization is conditional with the intention of divorce from both sides, when

using Canonical words, such as saying husband your matter is in your hand, or choose

yourself, the intention of one of them separately has no value. As for the withdrawal of

endorsement and option, they may have before the divorce or the choosing herself as

stated in the Al-Majmū: “If a divorce is delegated to her, and then he revoked before her

divorce or choose herself, both of the option will be vide”. 16 So he has no right after the

use of her right according the Shafi'i school of thought, and before that he may cancel this

delegation.

4.3.4 Opinion of Hanbali jurist

The husband may delegate to her the right to divorce explicitly or euphemistically

herself, “if he says to her "your matter is in your hand" she has right to divorce herself as

wishes, and whenever she desires, because, it is a kind of power of attorney for them, In

the form of choice as a word of “choose yourself”. It is not for her to choose more than

one, except to the husband enable her more than one by his word does or intention does.

In addition, the wife has option to do so after delegation as soon as possible in the same

place and discussion without any break up. So, if they started any other discussion or one

of them left the session, the option will be considered vide.17

16
Yahya bin Sharf Al-Nawawī, Al-Majmūʿ Sharḥ Ul-Muhaḏb, vol. 17 (Beirut: Dar ul Fikr, n.d.), 93.
17
Ibne Qudamat Al-Maqdasi, Al-Kafi Fi Fqh Al-Imam Aḥmad, 2nd ed., vol. 3 (Al-Riyad, Saudi Arabia,:
Maktbat ur Riyad al-Hadithat, 1400), 118.
 10

4.3.5 Opinion of Shia scholars

A look at the Ithna Asharia (Shi‘a) literature reveals that talaq al-tafwid is not allowed.

Muhammad Jawad Mughnia, a Shi‘a scholar from Lebanon, confirms that “if [a husband]

gave his wife the option intending thereby talaq al-tafwid and she exercised her delegated

right to divorce herself, the divorce is not effective according to the learned scholars of

Imamia.”18 However, a deeper study of the Shi‘a literature reveals that the jurists of the

school are against unconditional (or absolute) delegation of this right to the wife but

nevertheless agree with the essence of talaq al-tafwid if conditional. Thus conditional

talaq al-tafwid is acceptable while unconditional is not. So if the husband agrees that his

wife will stay in her native town, and then if he violates this stipulation his wife can

pronounce talaq on herself because of this breach. Or that the husband should not marry

any additional wives or else she would have the right to divorce herself. These are

considered as valid and binding stipulations.19

4.3.6 Opinion of Zahiriyya School

Imam ibn e Hazm has adopted different point of view in this regard, according to him,

delegation of right of divorce is illegal in Islam. Therefore, he said that, a woman has no

choice to separate herself from her husband or stay with him except that Allah has

allowed in the case of slave women, and the woman can never get ownership of the right

of divorce.

After analysing the arguments and legal cause roots of the issue, it’s concluded that the

four imam agreed on the possibility of authorizing divorce, because, it is the right of the

husband, and he may delegate his right to his wife, or to any other person power of

attorney, whether absolutely or restricted by a specific period, or place, or with the time
18
Aḥmad bin Abdulḥaleem Ibn e Taimiat, Majmūʿ Ul-Fataw, Al-Madinat Al-Nabwiyat, vol. 29 (Saudi
Arabia: majmʿ ul-malik fahad, 1416), 148.
19
Ibid: vol 34, P, 91.
 11

of Contract. conditional talaq al-tafwid is acceptable by Shi’a school of thought. Imam

Ibn e hazm has opposed the concept of delegated divorce as he mainly focuses on the

literal meanings.

4.4Opinions of the jurists Legality of right of delegation of divorce

before the contract
We have discussed earlier the legality of delegation after the contract, but is conditional

delegation permissible at the time of contract or not? We will look in for the answer to

this important question, because legal practices based on authorization in the contract.

The basic rule contained narrated about the Prophet (peace be upon him) in the tirmḏī in

this regard is:

That the messenger of Allah, peace be upon him said: reconciliation is

permissible among Muslims, except which makes a legal thing illegal, or
convert illegal to legal, And Muslims on their terms, except for a condition
forbidden a legal provision, or a condition makes invalid valid.20

This means that the fulfillment of the condition imposed with the consent is binding on

Muslims in the contract or covenant between them, however, fulfillment is conditional on

that, the contents of condition should not have conflict with the established legal texts

and principles of Islamic law. And the other rule is that: “Any condition which is in the

interest of contract or is required by the nature of contract will be valid, because it is an

appropriate condition for the contract”21

As well as the conditions known in the custom with the condition that it will not convert

prohibited things into lawful or vice versa. And the authorization of divorce does not

contradict the contract and is not opposed to the texts of Shari'ah and general principles

of Islam, but proved by the texts of Shari'ah and all of the four juristic school of thoughts

agreed on the legality of it, so it is valid to delegate the right at the time of contract.
20
Muḥammad ibn ʻisa Al-Tirmidhi, Sunan Al-Tirmidhi, Hadith No, 1352, vol. 3, 1965, 28.
21
Aḥmad bin Muḥammad Al-kẖiṭabi, Mʿālim Ul-Sunan, vol. 3 (al-maṭbaʿẗ al-ʿilmīah, Halb, 1351), 142.
 12

Hanfi jurists have described the issue in more detail, and stated that in this case the offer

should be from wife, as she said that the divorce will be in my hand etc., and the husband

will accept her offer. If the husband offers her such right and she accepted, it will not be

considered delegation of right, because: “The beginning from the husband is a divorce,

and the authorization before the marriage is not correct, but in case of the initiating from

the woman it becomes authorization after the marriage, which is rectifying by the

husband when he says: it is accepted”.22

The legal base of the above mentioned issue is that, delegation before ownership of the

right of divorce is not valid, therefore, hanfi jurists restricted it with offer from wife.

Likewise, authorization in the form of the written covenant with the consent of the

spouses is as valid, as it is in practice in the present era.

4.5 Revocation of the delegated power of divorce

As well as the revocation of the delegated power of divorce is concerned, Hanbli and

Shafi consider the mandate to be a power of attorney only, so that he may revoke before

her exercising of the right, furthermore, the husband may invalidate it before the she

divorce herself. But according to Hanfi jurists it is transferring of ownership of a right,

which cannot be revoked or invalidated after completion of transferring, as Kasani (d.

587 A.H.) of the Hanafi School has given reasons for this23:

Firstly, if a person willingly transfers his possession to another, the latter

will of course become the rightful owner and the former will not be able to
revoke the transfer after its completion. Similarly, once a man has
delegated his right of divorce to his wife, he cannot go back on his words
and terminate the condition (if incorporated in the marriage contract).

22
Dr. Ihsanullah Chishti and Dr. Ayesha Snober, “Delegation of the Right of Divorce and Its Revocation in
Islamic and Pakistani Law: A Comparative Study,” Islamic Sciences 4, no. 1 (2021): 48–57.
23
Alauddin Abu Bakr Al-Kasani, Bada‘i Al-Sana‘i , vol. 3 (Beruit: Dar Ihya al-Turath al-‘Arabi, 2000),
 13

Secondly, delegating the power of divorce makes it dependent upon the wife’s discretion

which is similar to ta‘liq al-talaq (conditional repudiation). Thus, making repudiation

conditional and dependent (on the wife’s will) is automatically irrevocable that is

analogous to taking an oath (which is also irreversible). likewise, imam Malik opined that

it is not revocable except in the case, when the husband uses the word “taūkīl” (to make

someone his agent or his wife), because the contract of agent can be revoked by principle.

According to the Shafi’is, the husband can revoke the power (tafwid) at any time before it

is exercised by the wife. Imam Malik is of the opinion that the husband cannot revoke the

power which is already delegated to the wife but he can do so in the case of tawkil or

agency. While under the Hanbali law, the husband can revoke the power whether it is

delegated to the wife or to a third person.24

4.6 Divorce by way of Delegation is Tala’q e Rj’ii or Tala’q e Bain?

Whenever a person delegates the right of divorce to his wife, it results in tafwid. This

may take many forms, such as: “Your affair is in your hands”, “Choose (yourself)”, “You

are divorced, if you wish”, and “Divorce yourself, if your wish”. when the wife exercises

her right to divorce herself the resulting talaq will be either revocable (raj‘i) or

irrevocable (ba’in) depending on the intention of the husband and the words of delegation

used by him. There is difference of opinion about the nature of separation affected under

the doctrine of delegation. In the Hanafi texts the general principle is that an explicit

(sarih) talaq is revocable, while one in ambiguous words (kinayah) is irrevocable. It is

obvious, first two forms are not explicit in conveying the meaning of divorce and as such

they attract the rules about divorce pronounced in ambiguous (kinayah) terms so the

resultant divorce is revocable. As opposed to this, last two forms are explicit in

24
Mohammad Ibn Ahmed Al-Shirbini, Mughni Al-Muhtaj, vol. 3 (Egypt: SharkahMaktabah, 1933), 285.
 14

conveying the meaning of divorce and as such they attract the rules about divorce in

explicit (sarih) terms. Thus, the resultant divorce is irrevocable. 25 The Malikis say that

when a husband authorises his wife to divorce herself, he shall be deemed to have

empowered her to effect an irrevocable divorce (ba’in). Shafi’i has two opinions,

according to one report the separation effected in the case of delegation amounts to a

cancelation of marriage. But according to his later opinion, the nature of separation shall

be divorce, and its nature shall depend on the intention of the husband. If he wanted the

separation to be irrevocable, the divorce affected shall be irrevocable. On the other hand,

if he wanted only a revocable divorce then only a revocable divorce shall result.26

However, if the husband intended to delegate his wife the right of triple talaq in saying

“Your business is in your hands”, it will be considered as three repudiations if she

exercises that right.27 On the other hand, if the word ‘talaq’ is expressly mentioned in the

delegation, it will amount to one revocable talaq. Statements like “You are divorced, if

you wish” or “You are divorced, when you wish” are explicit for talaq and it will lead to

one revocable talaq if she exercises this right. However, if he says: “You are divorced

whenever you wish”, the wife will have the right to divorce herself thrice. 28 If by his

statement “Divorce yourself” he intends to give the power of three talaq, the wife may

divorce herself thrice and this will create a “big gulf” bainun al-kubrah between the

parties. If the husband delegates the right to be exercised by her during the majlis (sitting

or a meeting in which the option is given), the woman must nevertheless repudiate the

25
Dr. Muhammad Mushtaq Ahmad and Dr. Sadia Tabassum, “INTERPRETING the LAW on ABSOLUTE
DELEGATED DIVORCE: AN EXERCISE in COMPARATIVE JURISPRUDENCE,” Majallah-Yi Talim
O Tahqiq 3, no. 4 (2021): 119–31.
26
Mohammad Ibn Ahmed Al-Shirbini, Mughni Al-Muhtaj, vol. 3 (Egypt: SharkahMaktabah, 1933), 285.
27
Burhanuddin Al-Marghanani, The Hedaya, trans. Charles Hamilton, vol. 1 (London: Allen, 1870), 238.
28
Alauddin Abu Bakr Al-Kasani, Bada‘i Al-Sana‘i , vol. 3 (Beruit: Dar Ihya al-Turath al-‘Arabi, 2000),
195–96.
 15

nikah in the same majlis, unless her husband grants her an extended period of time in

which to exercise it. A man may allow his wife to use her discretion to exercise the right

of divorce upon the occurrence of a predetermined stipulated event. In Hanafi law it is

neither mandatory for a woman to go to court in order to exercise her right of repudiation,

nor is it necessary for her to pronounce the divorce before witnesses.29

In a nutshell, according to Abu Hanifa and Imam Malik, the delegated right of divorce

will be irrevocable (ba’in) while Imam Shafi is of the opinion that the nature of

separation depends on the intention of the husband. If the husband has the intention of

revocable divorce, then the divorce will be deemed revocable and if he intends to

delegate irrevocable divorce then the divorce will be deemed irrevocable.

5. Delegation of divorce in Pakistani laws

5.1 Development of Right of Delegated Divorce
Pakistan inherited laws from British colonial masters. Section 18 of the Indian

Independence Act, 1947, provided for the continuity of the pre-independence laws. It is

well known that British generally adopted the policy of non-interference in religious

affairs as well as in matters which they deemed included in ‘personal law.’ Hence, there

very few pieces of legislation on issues of marriage, divorce, inheritance and the like.

One of them was the Dissolution of Muslim Marriages Act, 1939 (Act No. VIII of 1939),

which was prompted by problems faced by Muslim women in getting their marriages

dissolved and it is well known that the fatwa of Mawlana Ashraf Ali Thanawi (d. 1943),

titled al-Hilah al-Najizah li ‘l-Halilah al-‘Ajizah (Effective Legal Device for the

Oppressed Wife). As the Hanafi law interpreted the grounds for dissolution of marriage

very narrowly, it was very difficult for oppressed women to get rid of unhappy marital

29
Ibid.
 16

relationship. Mawlana Thanawi consulted other scholars and, then, after detailed

correspondence with Maliki jurists in the Arab world, prepared this fatwa in which he

accepted some of the rulings of the Maliki School on the basis of compelling necessity.

Interestingly, this fatwa had detailed discussions on the concept of delegated divorce and

it preferred it as one of the effective tools for women who wanted to get out of unhappy

marriage relationship, although the fatwa recommended delegation of this right to women

in a restricted form. This fatwa became the basis for the draft bill on the law about

dissolution of marriages. However, it is very surprising to see that delegated divorce

could not find its place in the said Act. In Sainuddin v. Latifannessa Bibi 30 the husband

agreed in the marriage document, inter alia, not to marry a second wife without the

consent of the first wife, not to beat or ill-treat the wife, and to allow her to vist her

parents and if he would violate any of the aforesaid conditions or any portion thereof, the

wife will be delegated to power of giving three divorces. But later when the husband did

marry a second wife, the first wife left him, and the husband filed a suit for restitution of

conjugal rights against her. The wife thereupon 'gave herself three divorces in accordance

with Muham- madan law under the authority given to her by her husband,' and pleaded in

defence to her husband's suit that she was no longer his wife. The Court accepted the

validity of her dissolution of the marriage and dismissed the husband's suit.

Thus, issues related delegated divorce continued to be governed by the un-codified

provisions of Islamic law (which meant Hanafi law for sunnis), as per the provisions of

the Muslim Personal Law (Shariat) Application Act, 1937. In Pakistan, this latter law was

replaced by the Act of 1948 which was in turn replaced by the Act of 1962. This law

remains applicable in Pakistan. However, after the Muslim Family Laws Ordinance, 1961
30
1919 I.L.R. 46 Calcutta 141
 17

(Ordinance No. VIII of 1961) was promulgated, the legal position changed because the

said Ordinance has several provisions on the issue. Significant provisions of this

Ordinance are examined here.31

5.2 Laws governing the Right of Delegated Divorce

The husband is chosen between the authorization and the denying of it in the contract as

stated in Pakistani law, where in the form of marriage the phrase question: “Is the

husband want to delegate the right of divorce to his wife or not? If he delegated, is it

conditional or not?” This means that the authorization may be absolute or restricted, if the

husband wishes to restrict it with a restriction or condition, and may be restricted by a

specific time or a certain time or by an accident and other things that are legitimately

permissible. Likewise, how a wife uses her right if she wants is stipulated in Article 8.

8: Dissolution of marriage otherwise than by talaq, where the right to

divorce has been duly delegated to wife, and she wishes to exercise that
right or where any of the parties to a marriage wishes to dissolve the
marriage otherwise than by talaq the provision of section seven shall,
mutatis mutandis and so far as applicable, apply.32

5.2.1 Islamic Ideology Counsel’s stance on Delegation of Divorce

Molana Imdadullah who is the member of Islamic Ideology Counsel has prepared a draft

for the Law of protection of women’s Rights and it was proposed by him in the sec 65 of

the respective draft that at the time of marriage contract, if husband has delegated his

wife the right of divorce, she can later divorce herself by complying to the terms and

conditions, if any. This draft was under consideration in the 206 th conference of the

counsel and other fellow members of the counsel later submitted their written opinions on

each proposed section of this draft. This section is opposed by Molana Ali Muhammad
31
Dr. Muhammad Mushtaq Ahmad and Dr. Sadia Tabassum, “INTERPRETING the LAW on ABSOLUTE
DELEGATED DIVORCE: AN EXERCISE in COMPARATIVE JURISPRUDENCE,” Majallah-Yi Talim
O Tahqiq 3, no. 4 (2021): 119–31.
32
The Muslim Family Laws Ordinance 1961, Sec 8.
 18

Turab by saying it an innovation to the Islamic law, but the draft provided by Molana

Imdadaullah contains a very clear arguments supportd by Quran and Sunnah. Islamic

Ideology Counsel considered and agreed with the Molana Imdadaullah opinions and

added this section as finality clause. 33

5.3 Rules governing the Revocation of Delegated divorce

According to Muslim family law of Pakistan, the delegation of power of divorce is valid

absolutely and temporarily, and in case of permanent authorisation of the wife, the court

has discussed that the husband may revoke the delegation whenever he wants but it is not

mentioned explicitly in the text of law. The decision of Lahore High court stated that

when the person to whom the power has been delegated, pronounces divorce, the

delegation will become irrevocable. Therefore, there is no contradiction and conflict

among these decisions of Pakistani courts.

In another judgment it was observed that:

Although the power to give divorce belongs to the husband, he may

delegate the power to the wife or to a third person, either absolutely or
conditionally, and either for a particular period or permanently. The
person to whom the power is thus delegated may than pronounce the
divorce accordingly. A temporary delegation of power is irrevocable but a
permanent delegation may be revoked34.

In another judgment of Peshawar high court, it was stated that: “According to

Muhammadan Law once a person to whom the power of divorce is delegated pronounces

divorce, the power so delegated become irrevocable and this will operate as Talaq of the

wife by husband”. 35

33
Islamic Ideological Counsel, “Salana Report 2016-17” (Islamabad: Islamic Ideological Counsel, 2017).
34
2006 YLR 335
35
2013 CLC 1625
 19

5.3.1 Procedure to be followed while Exercising the right of

Delegated Divorce
The practice in Pakistan is that the husband delegates talaq al tafwid to the wife at the

time of marriage and this agreement is incorporated in nikahnama which is the marriage

contract. If a wife wants to exercise her right of talaq al-tafwid, she should follow the

proper procedure, that is, by sending a notice to the chairman in writing and one copy to

the husband. The chairman will then constitute an Arbitration Council within 30 days of

the receipt of such notice. The function of the Arbitration Council is to effect are

conciliation between the parties.28 Divorce will not become effective until the

completion of 90 days whether the marriage is consummated or not.

5.4 Caselaws under delegated divorce

In Sainuddin v. Latifannessa Bibi36 the husband agreed in the marriage document, inter

alia, not to marry a second wife without the consent of the first wife, not to beat or ill-

treat the wife, and to allow her to vist her parents and if he would violate any of the

aforesaid conditions or any portion thereof, the wife will be delegated to power of giving

three divorces. But later when the husband did marry a second wife, the first wife left

him, and the husband filed a suit for restitution of conjugal rights against her. The wife

thereupon 'gave herself three divorces in accordance with Muham- madan law under the

authority given to her by her husband,' and pleaded in defence to her husband's suit that

she was no longer his wife. The Court accepted the validity of her dissolution of the

marriage and dismissed the husband's suit.

In the case of Dr Razia v Mushir Ahmad 37, the wife was granted the delegated right of

divorce and she used her right of talaq al-tafwid by sending notice of divorce to the

36
1919 I.L.R. 46 Calcutta 141
37
[1988] CLC 467(Karachi).
 20

chairman under section 7 and 8 of the Muslim Family Laws Ordinance. After 90 days of

the notice the wife claimed that their reconciliation had failed, and therefore a divorce

should be granted to her. The husband alleged that the right of delegated divorce is illegal

and objected to the authority of the chairman of the council by saying that he is not

authorised to proceed with the divorce. The court argued that after completing 90 days of

the notice for divorce, the chairman is authorised to decree the divorce deed. The court

decided the matter in favour of the wife and a divorce decree was issued by the chairman

of the union council.

Similarly, in Mehnaz Mehboob v Ishtiaq Ur Rashid 38, the issue of the legality of the

delegated right of divorce was brought to the court. At the time of marriage, the husband

delegated the right of divorce to his wife. After sometime, the wife was mentally tortured

by the husband and his family by making illegal demands against her. She, therefore,

decided to use her delegated right of divorce and sent a divorce notice to the union

council. An arbitration council was formed but the reconciliation failed. The husband

produced a fatwa from an Islamic jurist which declared that the delegated right of divorce

was un-Islamic. The judge, however, held that according to the Qur’an and Sunnah of the

Prophet (SAW), talaq al-tafwid was recognized and declared the divorce initiated by the

wife as legal.

The case of Tahazzad Hossain Sikandar v Hossneara Begum 39 further discussed the right

of a woman to exercise talaqal-tafwid and whether this exercise was reasonable or

opposed to public policy. In this case, the woman used her delegated right to divorce her

husband as he had not paid her the prompt dower consisting of ornaments and clothes. In

38
[2006]YLR 335 (Lahore)
39
[1967] PLD 421(Dacca)
 21

the court, the husband argued against the validity of talaq al-tafwid. The court decided in

his favour, but the district judge reversed the decision and held that the marriage was

dissolved. The husband then appealed to the High Court, where he also contended that

‘the delegated right of divorce could not be utilised in relation to non-payment of prompt

dower and that such an exercise was unreasonable and against public policy’. The High

Court, however rejected this argument and held in favor of the wife.

In the case of Mst Shayan Afzal vs Syed Farukh Abbas, 40 the petitioner exercising her

unconditional delegated right of divorce made an application to the chairman arbitration

counsel on Oct 21, 2013. The arbitration counsel sent the notices to the respondent for

appearance but no one appeared on behalf of the respondent and counsel adjourned the

proceedings till the appearance of the respondent. It was incumbent on arbitration counsel

to issue a certificate of effectiveness of divorce after the expiry of ninety days.

Meanwhile, the petitioner died due to a terminal illness on Feb 22, 2015. Later

petitioner's father filed an application before arbitration counsel for the issuance of a

divorce certificate in the name of his daughter which was dismissed vide an impugned

order as her father does not have the legal right to pursue the same, it was contented by

the petitioner's counsel that no request for withdrawal of application has ever made and

Mst Shayan Afzal has nominated as arbitrator. It's presumed by this fact that the deceased

has no right to revoke the notice of talaq.

It's a settled proposition of law that if talaq has been pronounced by either party and the

process of arbitration counsel has been adopted under the law and during the proceedings,

the executor of talaq has died before the expiry of 90 days, the divorcee will not be

effective whereas in the other case, if the executor of talaq has died after the completion
40
2018 CLC 1125 ISLAMABAD
 22

of 90 days process time, arbitration counsel would be under obligation to issue a

certificate of effectiveness of divorce in favor of deceased as applicant has not withdrawn

her/his talaq before 90 days.

So, in the instant petition, the High Court directed the arbitration counsel to issue a

certificate of effectiveness of talaq in the name of the deceased when 90 days were

completed.

From the above discussion, it may be concluded that the practice of delegating the power

of talaq as early as the beginning of marriage might not be good for both parties. On the

part of the husband, he might not be fully aware and understand the consequence of such

delegation as it is made at the very early stage of marriage. This can be seen from the

cases illustrated above where the legality of such delegations was challenged by the

husbands. There is also no recorded practice of the Prophet or companions to delegate

such power to the wife at the time of marriage. On the part of the wife, such delegation

might induce her to ask for divorce thoughtlessly or hastily even without reasonable

reasons.

6. Conclusion
In a nutshell, this study concludes that the principle of talaq al-tafwid exists in the Quran

and sunnah of the prophet (SAW). In the Quran, Allah commands the prophet (SAW) to

give choice to his wives, if they want to dissolve their marriages, which shows that talaq

al-tafwid originates from the original source of shari’ah. Based on this original source,

Islamic jurists allow a woman to get the right of divorce from her husband in the form of

talaq al-tafwid. Pakistani law has also recognized this right of delegation of divorce and

demonstrates the rules and procedures to exercise this delegated right of wife in Pakistani
 23

courts. Thus, it is concluded that talaq al-tafwid may become a good and viable

alternative to dissolve the marriage by both husband and wife as it’s basically serves as a

check on a man. Talaq al-tafwid can be considered as a dignified way of dissolving the

marriage and the procedure is less time consuming and much simpler compared to the

other types of divorce. Thus, it might contribute to lessen the number of backlog cases

which is one of the factors that hinders justice to be carried out effectively.

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