Question:
A husband granted his wife authority to divorce in the following manner……
I (Husband) being married to (wife) do hereby vest the power of Talaaq in her hands, for her to excercise whenever she has arrived at a decision that she does not want to continue with this Nikaah.
I (wife) have hereby exercised the power of pronouncing a Talaaq as granted to me above, by my husband.
I do so willingly and accelt that it is effective with immediate effect once I sign below.
The question is she has not signed the paper but sent the following text message to her husband.
Congratulations
You are a free man. We are no longer married. Alhamdullilah
Finally you have what you wanted.
She is a second wife with her own house, so after this she asked the husband to return the keys he has to her house. And later text him asking where she must drop off his belongings.
When asked by the husband about her intention at the time of the text, she is simply saying, but that’s what you wanted.
Then she says, she has not signed the paper.
1) Does the text message and actions of the wife require her to express her intention?
2) Does it matter that the paper granting the authority to the wife has the word Talaaq written on it?
Answer:
1). The words and actions of the wife in the queried scenario do not constitute Talaaq even though they may be apparently indicating and pointing towards Talaaq. She has been given the authority to divorce herself whenever she wishes to do so in the recorded statement. However, she hasn’t at any stage mentioned that she has formally divorced herself by acting upon the authority handed over to her.
Under the subject of ‘Tafweedh-e-Talaaq’ the jurists provide a scenario which is as follows; a husband tells his wife, “Choose yourself.” He intends by his statement that you have the choice of divorcing yourself, and she in response states, “I have chosen” then it will not constitute Talaaq, even though it was uttered in response to the husband’s choice afforded to her. This is because there is a level of ambiguity in her response whereas the matter should be absolutely clear and free from any form of doubt. It was necessary for the wife to have stated (in this scenario), “I have chosen myself” for the Talaaq to be effective, or else there exists a possibility of interpreting the statement as, ‘I meant by my statement that I choose my husband.’
لان قوله اختاري مبهم , وقولها اخترت مبهم ايضا , والمبهم لا يصلح تفسيرا للمبهم
(حاشيه 1 المختصر القدوري ص612)
In the queried scenario, the wife hasn’t signed the stipulated document thereby freeing herself correctly from the marital bond, nor has she stated at any point and time explicitly that she has divorced herself by exercising the authority handed over to her. Due to the ambiguity in her statements and actions, she will be required to follow the correct procedure of exercising the right of issuing Talaaq handed over to her, either by signing the document or verbally stating that she is now divorcing herself acting upon the authority of issuing divorce handed over to her.
2). It doesn’t really matter as the divorce is dependent on a signature in the document. It is only on signing the document that Talaaq becomes effective.
Checked and Approved By:
Mufti Muhammed Saeed Motara Saheb D.B.