#672: At-Tawfīd
QUESTION:
(2) Conditions attached with the right of divorce for the wife:
Many times certain conditions are stipulated in a way that if the husband fails to fulfil them, the wife will have the right to divorce herself. This (giving the wife the right to divorce herself), is known as Tafweed in the Fiqh terminology
There are three situations here:
a) If the Tafweed took place after the spouses had entered into wedlock, then this, without doubt, can be done. However, the husband here will be free to accept such conditions, as he is already in the marriage.
When the husband gives this right of divorce to the wife, she will only have this right in the session (majlis) that she is in. If she did not exercise her right, then this right will go in vain.
However, if the husband granted this right for a specific period (e.g. 5 years) or permanently, then she will have this right accordingly.
b) The second situation is when Tafweed takes place at the time of contracting the marriage, meaning the wife stipulates the conditions, and demands the right to divorce herself in the case of non-fulfilment.
This is also permissible and valid, provided one condition is met, which is that the offer of marriage is initiated by the woman coupled with the demand for Tafweed, and the man accepts this. If the opposite takes place, it will be void. (See: Ibn Abidin, Radd al-Muhatr, 2/285 & al-Bahr al-Ra’iq, 3/318).
In the above case, if the woman initiated the marriage agreement and asked for the right to divorce herself if certain conditions were not fulfilled, then she will be entitled to this right, and whenever she divorces herself (if the conditions are not fulfilled by the husband) it will be valid.
c) The third situation of Tafweed is when it takes place before the actual contract of marriage has taken place. In other words, the woman stipulates certain conditions to be fulfilled if they are to get married, and if the conditions are not fulfilled, she has the right to divorce herself.
This is also permissible, but subject to one condition that the husband attributes the Tafweed to the marriage. Meaning he says: “If I marry you, and fail to fulfil such and such condition, then you have the right to issue one irrevocable divorce upon yourself.” (Radd al-Muhtar, 2/681, Bab al-Ta’liq)
In this case, if they do enter into wedlock, and the husband fails to fulfil the conditions, the wife will have the right to divorce herself.
It should be remarked here that although the power to give a divorce belongs primarily to the husband, he may delegate this power to his wife, with or without the conditions. Once this power is delegated, it can not be revoked, unless the wife hands it back to him.
Please what can you about the correctness of this👆🏼right up?
ANSWER
Alhamdulillāh.
The term Tafwīd is used by our Ulamā to refer to the option that a man gives to his wife of either remaining his or to consider herself divorced. It is established when the husband says to his wife for instance I leave the matter of your divorce to you and it’s likes. It’s permissibility is agreed upon by the Ulamā.
The majority of the Fuqahā hold that the Tafwīd right given to the wife expires once one or both of them leave the sitting where the husband granted her that right. This position is upheld by the Hanafī, Mālikī and Shāfi’ī Imams. The Hanbalī position upholds that this right can still be exercised after departing from the sitting in which the right is given. This position is wrong and what is standard is what the Majority upheld.
Again, the Ulamā have agreed that the Tafwīd is only applicable to the first and second divorces and not the third divorce. Likewise, a woman given Tafwīd may only exercise it on one divorce.
While the Tafwīd is applicable, the husband may render it void by retracting his statement or declaring it void.
What we have mentioned is what the Ulamā have agreed upon and which is established by the Light of Ilm.
As for the right to divorce, it is the exclusive right of the Man and none other. The man may give that right temporarily to the wife as is the case of Tafwīd in accordance with the restrictions we have referred to.
Intercession is only made by the Muslim Authority in the person of the Amir, the Qādī or the Imām in places where the husband oppresses the woman or denies her any of her rights. This is known as Khul’ah and it is done with it’s restrictions that are known.
The seeming impression in this article that right to divorce is vested on the wife is wrong and ill. This impression is either arrived at due to error in translation from Arabic (that is if the text was in Arabic and it was Translated) or inability to comprehend the texts or both, and Allāh knows best.
As regards the wife stipulating at the time of marriage that she holds the right to divorce, this has been upheld as permissible by some scholars and impermissible by others. Though we have upheld that stipulating conditions by the wife during or before marriage to be sound in our response to Question 488 on Al-Misyār, this particular condition returns to a tearing apart of the Wilāyah of the man and it enjoys a very minority position among our Ulamā. It is therefore weak and incorrect.
On At-Tafwīd in regards to marriage, the Imām and Faqīh Ibn Qudāmah Al-Maqdisī has discussed at length in Al-Mughnī with what suffices and Allāh knows best.
That said, know, o beloved one, that Knowledge Seeking remains very obligatory upon every Muslim who aims to see good in the Ākhirah. There is no weakening in this resolve. Yarhamukumullah!
Bārakallāhu Fīkum
Jazākumullāhu Khayran
2nd Rabi’ul Awwal 1440H
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