Delegated Divorce (Talaq-e-Tafweez) and Declaratory Divorce (Talaq-e-Bayaan)

Today's lecture, I'm going to clarify two things: one is talaq-e-tafweez (delegated divorce) and the other is talaq-e-bayaan (declaratory divorce). Let me tell you what the issues are: obtaining divorce on the basis of khula, issuance of a divorce certificate, absence of a divorce deed, khula through a special power of attorney, reuniting after khula, these are the topics I'll explain to you today, both from a legal and a Shariah perspective. What is talaq-e-tafweez? Talaq-e-tafweez is where the husband delegates his own right to his wife, that if I don't divorce you, you can take a divorce yourself. What's the doctrine behind this? It's a check on a man whose behaviour toward his wife is abusive. A person who isn't maintaining his wife in the manner required, who is negligent in marital matters. Such a person whose whereabouts are unknown, who cannot or does not maintain his wife. A person who has been missing for a long time and whose whereabouts are completely unknown, Shariah has provided talaq-e-tafweez for such situations. Talaq-e-tafweez can be delegated to the wife, and also to a third person. It could be the wife's guardian, or with mutual concern, the difficulties ordinary people face are just because they don't know what these matters actually are. Khula is one example of talaq-e-tafweez, that a woman can obtain khula through the court. There's a misconception about khula, that after khula the woman and man can reunite as husband and wife. Courts have said in very clear words that khula means one divorce, equivalent to one talaq, this is called talaq-e-bayaan. After that, if reconciliation happens between husband and wife, they can reunite, they can live again as husband and wife, but only after fulfilling one condition, that condition being that they must have a fresh nikah. This has been written in detail by the superior judiciary in countless judgments, for your knowledge let me give you the references too, so that if you're from any city and your lawyers aren't aware of this, or the lawyers you've hired aren't experts in this, for your convenience and for the convenience of my fellow lawyers, I'm telling you about three judgments where this whole concept has been discussed in detail. 2011 CLC page 660, Quetta High Court, 2011 CLC page 1211, Quetta High Court, PLD 2010 Karachi page 131, MLD 2000 page 447 (province level). These are the judgments where this whole matter has been discussed in great detail, and there's also a Federal Shariat Court judgment, 2013 MLD page 1117, Federal Shariat Court. If you read these judgments, you'll understand the concept of khula. I received a call from a person who said, I am abroad, and my wife filed for khula and wrote my address incorrectly too, didn't even disclose that I am abroad and took khula. She had already received the full dower amount from me. The court said she should return fifty percent of the dower, that fifty percent wasn't returned, I want to challenge this khula. Well, keep one thing firmly in mind: giving or not giving the dower is not an obstacle to khula. Once khula is declared and the judge decrees the suit, you cannot challenge the khula on this basis. Unfortunately, the law simply doesn't allow it. Yes, you can challenge the fact that this wife took the full dower, I haven't gotten the half back yet, that half dower should be recovered for me now, you can challenge to that extent. Some situations arise where, because of how the family system works in Pakistan, sometimes the wife doesn't have the nikahnama, doesn't possess the nikahnama, whether she's the mother of two children, one child, three children, or any children, or not. Let me tell you, if the nikahnama doesn't exist, there's no need to worry, but because courts don't decide mechanically here, courts need some evidence, whether in the form of oral testimony or documentary evidence, whether oral testimony or documentary, paper evidence. The court needs to have a clear mind, whoever I'm about to grant relief to or deny relief to, my mind should be clear. Judicial wisdom should have a positive outlook. Now if you don't have the nikahnama, what's needed is that you present witnesses to confirm it. If a lady doesn't have the nikahnama and wants khula, there's no problem in this. Her brother, her sister, her mother, her father, they can go to court saying, sir, yes, our daughter's marriage, our sister's marriage, our niece's marriage, took place with this man on such-and-such date. This marriage produced these children, or no children were born from this marriage, these are the matters, when they, as witnesses, tell the court, yes, this marriage took place, the court accepts this, and the court will not throw you out of court saying you don't even have a nikahnama, so how can I pass a khula decree? One matter came up where the wife or lady is in purdah, or is outside the country, or for some reason cannot come to court. Now she wants khula, how can she get it? The law is quite clear on this too, that she can also obtain khula through a special power of attorney, but along with that special power of attorney, trustworthy, reliable witnesses must also appear, only then. The court keeps in mind that no one should commit fraud on the court and ruin someone's life. Keeping this in mind, divorce happens through a special power of attorney, and the khula suit gets decreed, but for this too you need trustworthy witnesses. Now regarding talaq-e-tafweez, more or less all schools of thought differ slightly among themselves but are on the same page, with one exception, no school agrees with this at all: the Jafari school (Shia jurisprudence). The concept of talaq-e-tafweez does not exist in this school of jurisprudence. Now the wife took khula, after taking khula she doesn't marry anyone else, but if, after the khula decree, they reconcile between themselves, they can live as husband and wife again, but for this they must have a fresh nikah, they will do the fresh nikah, and after doing so, they can live together as husband and wife in a lawful manner. I hope I have given you a note on these points and you've understood it.