Right of divorce (Talaq-i-Tafweez)
The wife can pronounce divorce while exercised her right of divorce (Talaq e Tafwiz) delegated by her husband as per clause 18 of the Nikahnama under Pakistan Muslim Family Law Ordiananc’1961 otherwise she has to proceed a case in Family Court for “Dissolution of Marriage by way of Khula” because her husband not agree or refused for a mutual divorce.
Power to give divorce vested with the husband who might delegate the same to the wife or to a third person. Person to whom such power was delegated might then pronounce the divorce accordingly. Such divorce was known as “Talaq-e-Tafweez” Delegation of power called “Tafweez” by the husband to his wife, conferred on her the power to divorce herself. Under Section 7 & 8 of Muslim Family Laws Ordinance (VIII of 1961) 2013 C L C 1625.
The Chairman Council for Islamic Ideology (CII) Qibla Ayaz has once again reiterated that women will be granted the right to seek dissolution of marriage without going to court under the new marriage document being worked out by the council. However, he clarified that the inherent right to divorce would remain with the husband but the same would be surrendered to wife at the time of Nikah if both parties agree.
“The women can’t divorce husband under the Shariah Law but there is a provision under which the right of divorce (Talaq-e-Tafweez) is delegated to the wife unconditionally by the husband in the Nikah contract. In that case, women will have the right to dissolve a marriage which was obtained from the husband through Talaq-e-Tafweez which is provided for in the Shariah,” he said.
He said the provision of women having the right to dissolve marriage was part of old marriage document but the women would rarely get that right as Nikahkhawan would not inform them about their rights.
“Under the new proposal Nikhakhawan will be asked to explain entitlements and responsibilities to both bride and bridegroom,” he said.
According to Ayaz, there are three ways of divorce in Islam’s Fiqh. First is Khula under which woman goes to court to seek divorce. Second is calls Faskh Nikah, under which the marriage is automatically dissolved if certain conditions are not met by husband. Third is Talaq-e-Tafweez under which husband surrenders his right to divorce to his wife at the time of Nikah. He said for Khula the husband’s consent was necessary but under the dissolution provision consent would not be required as husbands would already surrender their right to their wives.
“The council is working on a Nikahnama and a Talaqnama (divorce document) whose language will be simple and easily intelligible,”
The statement added that the new document will include necessary clauses to strengthen family system in the light of teachings of the Holy Quran and Sunnah.
Also being considered are proposals to ensure details of national identity cards are entered in the Nikahnama and the “role of the Nikahkhwan is made effective and documentary”.
“The scholars will be taken in confidence on the draft for the Nikahnama and Talaqnama, which will be presented for formal approval in a meeting of the council,” Haq said.
The council, a constitutional body which recommends changes to Pakistani laws to make them Shariah-compliant. In his previous interview, Ayaz had said that the old marriage document drafted in 1960s did not have provisions according to the requirements of 21st century. He said provision for the bride to dissolve the marriage was present in the old document too but it was not elaborate and the brides were often given the document in which the provision was deleted by Nikahkhwans.
“They won’t be able to do that anymore and there would be legal consequences for that and the Nikahkhwan would not able to delete it without the consent of the bride-to-be,” Ayaz had told The News.