Right of Divoce Given to Wife
Question:
1) In my marriage contract it is stated that my husband gives the authority to me to divorce.In discussing that i said 3 times talaq in a joke to my husband and after saying that i said so it takes place like this when one says it. I did not know at that time that a woman cannot divorce her husband. I got so worried that i have given talaq and kept asking my husband the next day that does it count what i said and that please tell me what had i said, it was mere inquiry and jest right. My husband on my request and seeing me so tensed said that you had said talaq talaq talaq and told me that no it doesnt count. My query is that my husband just repeated what i had said and that too to explain me what i had said and had no intention of talaq. So he mere repeating my words i.e 3 times talaq count as talaq?
2) If in a marriage contract it is stated that husband gives right of divorce to his wife then how many talaq can she give 1 2 or 3?
3) If wife wants to give up this right can she do that?
4) What is the Islamic law regarding a woman being able to give divorce? does it mean she can utter talaq just like a man can? if not then what does she has to say?
Answer:
1. Having the intention is the essential element of any contract, including marriage and divorce. The matter of divorce is a very sensitive and important matter and it is not advisable to joke about it, however saying ‘divorce’ as a joke does not count as divorce.(1)
Similarly saying the words of divorce with no intention of divorcing (e.g. quoting someone) does not count as divorce. We are talking about a legal contract not some magical words that will work no matter what. The conclusion is that no divorce has taken place in your marriage.
2. This is not a matter of Shari’ah because the Shari’ah has not given any directives with regard to the situation where the husband gives the right of divorce to the wife. This is the matter of Feqh and is based on personal opinions. My view is as follows:
The wife in principle does not have the right of (direct) divorce. When this right is given to her by the husband the wife is in fact acting as the Wakil (representative) of the husband to divorce herself. Therefore even in this situation it is really the husband that is giving the divorce. Therefore in my view the same pattern should be followed as to when the husband directly divorces his wife. Therefore all the specifications that are the essentials elements of divorce (time of divorce, making sure about the wife not being pregnant, etc.) also apply in this situation.
3. Yes the wife can give up her right, but since this is a contract she should announce that she gives up her right in front of witnesses and preferably this should be documented and signed by her.
4. Please read my first few lines in answering your 2nd question.
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Footnote:
1. I am aware of the Hadith that says there is no joke in the matters of marriage and divorce. To my understanding the prophet (pbuh) as the ruler of the society meant to stop people from misusing and spoiling the law and annoying others in the matters pertaining to divorce and marriage. This is specifically important in the situation where the husband practically bullies his wife by pretending that he is divorcing her and then later saying that he was only joking, or when the husband actually divorces her wife but later feels sorry and makes the excuse that he was only joking.
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Farhad Shafti
August 2013
1) In my marriage contract it is stated that my husband gives the authority to me to divorce.In discussing that i said 3 times talaq in a joke to my husband and after saying that i said so it takes place like this when one says it. I did not know at that time that a woman cannot divorce her husband. I got so worried that i have given talaq and kept asking my husband the next day that does it count what i said and that please tell me what had i said, it was mere inquiry and jest right. My husband on my request and seeing me so tensed said that you had said talaq talaq talaq and told me that no it doesnt count. My query is that my husband just repeated what i had said and that too to explain me what i had said and had no intention of talaq. So he mere repeating my words i.e 3 times talaq count as talaq?
2) If in a marriage contract it is stated that husband gives right of divorce to his wife then how many talaq can she give 1 2 or 3?
3) If wife wants to give up this right can she do that?
4) What is the Islamic law regarding a woman being able to give divorce? does it mean she can utter talaq just like a man can? if not then what does she has to say?
Answer:
1. Having the intention is the essential element of any contract, including marriage and divorce. The matter of divorce is a very sensitive and important matter and it is not advisable to joke about it, however saying ‘divorce’ as a joke does not count as divorce.(1)
Similarly saying the words of divorce with no intention of divorcing (e.g. quoting someone) does not count as divorce. We are talking about a legal contract not some magical words that will work no matter what. The conclusion is that no divorce has taken place in your marriage.
2. This is not a matter of Shari’ah because the Shari’ah has not given any directives with regard to the situation where the husband gives the right of divorce to the wife. This is the matter of Feqh and is based on personal opinions. My view is as follows:
The wife in principle does not have the right of (direct) divorce. When this right is given to her by the husband the wife is in fact acting as the Wakil (representative) of the husband to divorce herself. Therefore even in this situation it is really the husband that is giving the divorce. Therefore in my view the same pattern should be followed as to when the husband directly divorces his wife. Therefore all the specifications that are the essentials elements of divorce (time of divorce, making sure about the wife not being pregnant, etc.) also apply in this situation.
3. Yes the wife can give up her right, but since this is a contract she should announce that she gives up her right in front of witnesses and preferably this should be documented and signed by her.
4. Please read my first few lines in answering your 2nd question.
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Footnote:
1. I am aware of the Hadith that says there is no joke in the matters of marriage and divorce. To my understanding the prophet (pbuh) as the ruler of the society meant to stop people from misusing and spoiling the law and annoying others in the matters pertaining to divorce and marriage. This is specifically important in the situation where the husband practically bullies his wife by pretending that he is divorcing her and then later saying that he was only joking, or when the husband actually divorces her wife but later feels sorry and makes the excuse that he was only joking.
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Farhad Shafti
August 2013
