Fatwa: # 15291
Category: Marriage
Country: Pakistan
Date: 31st May 2007

Title

Here in Pakistan, there is a clause in Nikkah-Nama stating that whether the husband has delegated the Power of divorce to the wife

Question

Here in Pakistan, there is a clause in Nikkah-Nama stating that whether the husband has delegated the Power of divorce to the wife. My Questions are:

1 - Is this practice allowed in Islam?
2 - If it is allowed, can it be proved by the practices of our Holy Prophet (May Pease be Upon Him).
3 - If it is allowed, is it a good practice to follow? Coz as far as per my knowledge, if a women does not want to live with her husband, she can consult religious court for "khulla". She cannot decide (like husband) that she cannot live from a certain instance.
4 - If it is not verifiable from Sunnah, then why is it there? Practicing it would be gunnah, wouldn't it be?


Answer

In the name of Allah, Most Gracious, Most Merciful

Assalaamu `alaykum waRahmatullahi Wabarakatoh

1. It is stated in the books of Islamic jurisprudence that the right of talaaq is vested in the husband only. However, it is permissible for a husband to grant his wife the liberty to exercise his right of issuing talaaq. By doing so, the wife has the right to give herself talaaq, but the husband will not lose his right of issuing talaaq.

This is termed as Tafweed-u-Talaaq or Al amr bil yad.

Al Mabsoot li Al Sarakhsi Vol:6 Pg:183/4 (Darul Fikr)

باب الأمر باليد ( قال ) وإذا جعل الرجل أمر امرأته بيدها فالحكم فيه كالحكم في الخيار في سائر مسائل الباب المتقدم إلا أن هذا صحيح قياسا واستحسانا ؛ لأن الزوج مالك لأمرها فإنما يملكها بهذا اللفظ ما هو مملوك له فيصح منه ويلزم حتى لا يملك الزوج الرجوع عنه اعتبارا بإيقاع الطلاق

2. Allah Ta’ala says in the Holy Quran:

 

يا أيها النبي قل لأزواجك إن كنتن تردن الحياة الدنيا وزينتها فتعالين أمتعكن وأسرحكن سراحا جميلا. وإن كنتن تردن الله ورسوله والدار الآخرة فإن الله أعد للمحسنات منكن أجرا عظيما

O Prophet, say to your wives, “If you intend (to have the pleasure of) worldly life and its charm, then come on, and I shall give you some stuff, and release you in a handsome fashion. And if you intend (to gain the pleasure of Allah and His Messenger and (the betterment of) the Hereafter, then Allah has prepared a great reward for those of you who do good”. (Surah Al Ahzab – Verse: 28/29)

Under the commentary of this verse, Mufti Shafi Saheb (Rahimahullah) explains:

“This verse gave all the blessed wives of the Holy Prophet (Sallallahu Alaihi Wasallam) the choice to either accept to continue living with him as their husband in the condition he is in (i.e. in his straightened economic condition), or become free from him through divorce.” 

Ma’riful Quran (English Translation) Vol:7 Pg:133 (Maktabah Darul Uloom Karachi)

The matter under discussion is similar to the one mentioned above.

3. Islam caters for the rights of the husband and the wife. Islam has provided this facility to the wife to save herself from the oppression of the husband. It will be regarded a good practice as long as it is not misused.

4. This will not be applicable, as understood from above.

And Allah knows best

Wassalam

Ml. M. Jawed Iqbal,
Student Darul Iftaa

Checked and Approved by:

Mufti Ebrahim Desai
Darul Iftaa

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