Talak-i-tafweez (This is the popular spelling, but Fyzee regards it as wrong and says that it should be spelled as talak-i-tafwid) or delegated divorce is recognized both by the Sunnis and the Shias. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any person. He may delegate the power, absolutely or conditionally, temporarily or permanently.
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A permanent delegation, of power is revocable, but a temporary delegation of power is not. The delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated.
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This has been thus illustrated by Ameer Ali: if a husband says, “Choose thyself’ or “Choose repudiation”, and if the wife answers, “I choose”, or “I have chosen myself or “I have chosen a talak’, it would be sufficient. But if he were merely to say, “Choose”, and the wife replies, “I have chosen”, this is not sufficient, and there is no talak.
The power of Talak may be delegated to the wife, and as Fyzee observes, “This form of delegated divorce is perhaps that most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”.
This form of delegated divorce has been commonly used in pre-nuptial agreements. Once the husband in Kabinama unilaterally delegates unconditional power to wife to give him divorce ex parte and at her will, she can validly exercise the power to pronounce divorce. In Md. Khan v. Shahmai, under a pre-nuptial agreement, a husband, who as a
Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house. The husband left the house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid exercise of the power of talak delegated to her.
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Delegation of power to divorce may be made even in the post-marriage agreements between the husband and the wife. Thus, where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the wife will have the right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy.
It should be noted that even on the happening of the contingency or event stipulated in the agreement, whether or not the power is to be exercised, depends upon the wife; she may choose to exercise it or she may not. The happening of the event or the contingency does not result in an automatic divorce.
The power so delegated to the wife, either under and a pre-marriage or post-marriage agreement, is not recovable by the husband. The wife may exercise this power after the husband has filed a suit for restitution of conjugal rights, and if she does so, it will result in a divorce.
In the talak-i-tafweez, though it is the person to whom the power is delegated who exercises the power of divorcing, the divorce in the eyes of the law is made by the husband. Thus, when a wife is delegated the power of divorce, and in exercise of that power she pronounces the divorce, the power is exercised on behalf of the husband who had delegated it to her, and, therefore, in law it is a talak of the wife by the husband.