Question: I would like to ask whether talāq is valid if my friend agreed before nikkah that she also has the right to pronounce talāq, and she pronounced the talāq after the nikkah, her husband believes this agreement applies, and they did not discuss it again after the nikkah. I would appreciate your guidance.
بسم الله الرحمن الرحيم
الحمد لله رب العالمين والصلاة والسلام على سيد المرسلين وعلى اله و اصحابه اجمعين
Answer:
Allah Almighty has granted the right of divorce to the husband, and this right is established for a man through the contract of marriage (nikah). In the situation under discussion, the type of divorce mentioned is referred to in Islamic law as Tafwīḍ al-Ṭalāq, which means transferring the authority of divorce from oneself to another person.
A‘lā Ḥaḍrat Imām Aḥmad Razā Khān Barelvi (رحمہ اللہ) states that Tafwīḍ al-Ṭalāq has four forms:
- After the marriage, the husband grants the wife the authority to divorce.
- At the time of marriage, it is stipulated that the woman will have the right of divorce, and the offer (ijāb) is made by the woman or her representative, and the man accepts it.
- At the time of marriage, it is stipulated that the woman will have the right of divorce, and the offer (ijāb) is made by the man, and the woman accepts it.
- Before the marriage, the man grants the woman the right of divorce.
In the first two forms, the woman acquires the right of divorce and may divorce herself. However, in the third and fourth forms, the woman does not acquire any such right.
(Fatāwā Riḍawiyyah, Volume 12, Kitāb al-Ṭalāq, Bāb Tafwīḍ al-Ṭalāq)
In the present case, the right of divorce was decided before the marriage, whereas the man becomes the owner of the right of divorce only after the marriage. Therefore, how can he transfer ownership of a right that he does not yet possess? Consequently, no divorce has occurred, and their marriage remains valid and intact.
The husband’s claim that the agreement is enforceable is incorrect.
And Allah Almighty knows best.
Answered by the Hafiz-e-Millat team
Verified by Maulana Nazim Qadri
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