How Can A Muslim Wife Obtain Divorce From Her Husband

17/05/2018 How Can a Muslim Wife obtain Divorce from her Husband?
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How Can a Muslim

Wife obtain Divorce
from her Husband?
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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).
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(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):

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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.
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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.
Home ››
Related Essays:
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Tafweez) under Muslim Law?
2. 3 Forms in Which a Muslim Women Can Seek

Dissolutions under the Muslim Law in India
3. Provision for Judicial Divorce under Muslim Law in India
4. What are the Grounds available to a Muslim Wife to
obtain Divorce from her Husband?
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17/05/2018 How Can a Muslim Wife obtain Divorce from her Husband?

How Can a Muslim

(a) Where the husband delegates to the wife the right of

(b) Where she is a party to divorce by mutual consent

(c) Where she wants to dissolve the marriage under the

In the first two cases the wife’s right of divorce depends

Under the Dissolution of Muslim Marriages Act, 1939, the

Delegated Divorce (Talaq-e-Tafweez):

A Muslim husband has unrestricted right to divorce his wife

Divorce by such other person, who acts as agent of the

The husband may delegate his right of divorce to his own

The delegation of the power of divorce to the wife may

The delegation (Tafweez) may be unconditional or subject

Where a right of divorce has been conferred upon the wife,

In Sainuddin v. Latifunnessa, there was an agreement

The husband took second wife without the permission of the

It is significant to note that right to delegate the authority of

In Magila Bibi v. Noor Hassain, the husband had given a

Talaq under the above mentioned written delegated

It continues to be ‘unilateral delegation’ and Talaq by wife is

Where a wife is given the option to divorce herself under a

It is to be noted that after delegating his authority the

2. 3 Forms in Which a Muslim Women Can Seek

Before publishing your

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