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Delegated Divorce under the Muslim Family Laws Ordinance 1961: An Analysis of Talaq-e-Tafweez

Delegated Divorce under the Muslim Family Laws Ordinance 1961: An Analysis of Talaq-e-Tafweez

Nikah contract or marriage is a core and revered Islamic practice, which is understood to be a legal contract as well as a religious sacrament. For this reason, it is reasonable to observe that the Muslim personal law is highly regulated yet subject to several challenges and controversies. As per Islamic jurisprudence and Muslim personal law, marriages must fulfil the contractual requirements of nikah, which is completed through offer (ijab) and acceptance (qubool), presence of mehr (dower which is mandatory, and can be paid promptly or deferred) and the witnesses of the nikah.

Subsequently, the matter of divorce is also structured through Islamic jurisprudence and the Muslim personal law of Pakistan. In contemplation, the primary right of dissolution, i.e., talaq vests with the husband who can pronounce it orally or in writing, which is inclusive of all types of talaq (talaq ahsan, talaq hasan and talaq biddah). As per the Honourable Court in the case reported as Muhammad Akram[1], Talaq and divorce must not be deliberated as dissimilar since divorce means dissolution of marriage (Talaq) and also separation.

Similarly, the wife has the right of Khula where the wife offers compensation to the husband if he releases her from marital rights[2] which is exercisable at her discretion, but requires the returning (if paid) or foregoing of the mehr (if unpaid) or a payment to the husband (the requirement of foregoing or return of mehr has been eased in Pakistani jurisprudence in the recent times[3]). However, there also exists a unique and an extraordinary provision in Islamic jurisprudence where the husband delegates his primary right of talaq to a designated person, usually the wife which is known as the provision of Talaq Tafweez. The right of Talaq Tafweez is thus to be differentiated from the right of Khula as both provisions are disparate in their operation.

Dr Mannan in explanation of Talaq Tafweez[4], submits that although the power to give divorce belongs primarily 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 then pronounce the divorce........

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