Talaq-e-Tafweez

WHAT IS TALAQ-E-TAFWEEZ?

Talaq e tafweez - A husband may delegate his power to give Talaq to any third party or even to his wife. This delegation is called tafweez. An agreement made either before or after the marriage providing that the wife is at liberty to divorce herself from her husband under certain specified conditions (e.g. husband taking a second wife), is valid, provided that such power is not absolute and unconditional and that the conditions are reasonable and are not opposed to public policy.

In Mohd Khan vs Mst Shahmali AIR 1972, there was a pre-nuptial agreement in which the defendant agreed to live in plaintiff's parental house after marriage and if he left the house, he would pay a certain sum to the plaintiff, the default of which the condition would act as divorce. It was held that the condition was not unconscionable or opposed to public policy.
Note that a wife does not divorce her husband but gets herself divorced from the husband.Ameer Ali gives three kinds of tafweez - (This is given in Aqil Ahmed's book. I have no idea what is the difference between the three).Ikhtiar - giving her authority to Talaq herself.Amr-bayed - leaving the matter in her own hands.Mashiat - giving her the option to do what she likes.
This does not deprive the husband from his right to give Talaq.Talaq e taliq - It means contingent divorce. Under the Hanafi law, pronouncement of divorce may take effect immediately or at some future time or event. 

(a) Muslim Family Laws Ordinance (VIII of 1961)---

---Ss. 7 & 8---Talaq-e-Tafweez---Scope---Kinds---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---Tafweez was of three kinds; Ikhtiar; Amr-ba-yed and  Mashiat---Wife could not sue to enforce the authority to have been given to her but she could  sue  after  she  had  given  effect  to  it  to  make  the  husband liable  for  her  dower  or  to  restrain  from  seeking  conjugal relations.

            PLD  1995  Lah.  187;  1999  YLR  2399  and  PLD  2011  Lah. 265  rel.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), Ss.7 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Talaq-e-Tafweez---Scope---Suit for recovery of maintenance allowance and dower---Contention of the wife was that due to cruel and humiliating attitude of the husband she was compelled to exercise her right of delegation of divorce---Validity---Wife was entitled to exercise her right of Talaq-e-Tafweez and to be separated from her husband---Same could not be termed as Khula---Talaq once pronounced would be effective after expiry of 90 days---Nikah Nama with all its contents had been admitted by the husband---Right of divorce had been delegated to the wife by the husband---No condition or contingency existed in the Nikah Nama---Wife had exercised delegated power of divorce and had repudiated herself through notice  duly served upon the husband and copy of which was sent to Union Council in view of Ss.7 & 8 of Muslim Family Laws Ordinance, 1961 stating therein that by virtue of Talaq-Tafweez it was not possible for her to live with the husband as wife---Notice was exhibited without any objection on the part of husband---Once a person pronounced divorce, the power so delegated became irrevocable and such would operate as Talaq of the wife by the husband---Dissolution of marriage in the present case could not be considered as divorce by khula---Husband admitted that the dower was rightly fixed but failed to prove the payment of the same---Both Courts, in  circumstances,  had  rightly  decreed  the  amount  of  dower  in favour of wife---Constitutional petition was dismissed.

(2013 C L C 1625)