Abstract
Delegation of divorce and its revocation is an important issue in the discipline of Muslim family law, which especially highlighted by Muslim scholars in Pakistan after the legislation of Muslim Family Law Ordinance 1961 in this regard. Actually, the legality of the issue in the classical Muslim jurisprudence is not questionable due to its institution by the legal texts of the Holy Quran and Sunnah. But the Muslim scholars distinguish between pre- and post-contract delegation of right of divorce to the wife. As for as concerned the Pakistani Muslim family Law ordinance 1961, which legalized that right to divorce may be delegated to wife at all. We have tried to study in this article the real status of the issue in the light of Quran and Sunnah and opinions of the early Muslim Jurists in this regard. This study is based on the comparison between the practically applied law in Pakistan and legitimate position of the said case in Islamic Law.
Highlights
The delegation of power of divorce is one of the prominent type of divorce instituted by Islamic law, while its legality in Islamic law has proved to be an exception to the general rules of divorce, because, according to the Islam divorce is the right of husband
As for as in the Pakistani family law, it is permissible to delegate the right of divorce to the wife at all without distinguishing between above-mentioned situations, i.e. before and after the contract, the Pakistani law does not discuss the case in which a husband delegates this right after the marriage contract
This research has been divided into three sections: 1: The concept of divorce, mandate and legitimacy 2: Delegation of Divorce right before and after the contract 3: Delegation of Divorce right in Pakistani law Section 1: 1: The concept of divorce, mandate and legitimacy I: The concept of divorce and delegation: As a term of the Islamic jurisprudence, Muslim jurists defined it from different characteristics, as the author of Al-āiKẖtīār stated that: 1“ ”إِ َزالَةُ النِ َكاحِ الَّ ِذي ُه َو قَ ْيدٌ َم ْعنًىthis is to end the marriage contract which binds the couple together, and other Jurists defined it
Summary
The delegation of power of divorce is one of the prominent type of divorce instituted by Islamic law, while its legality in Islamic law has proved to be an exception to the general rules of divorce, because, according to the Islam divorce is the right of husband. As for as in the Pakistani family law, it is permissible to delegate the right of divorce to the wife at all without distinguishing between above-mentioned situations, i.e. before and after the contract, the Pakistani law does not discuss the case in which a husband delegates this right after the marriage contract Likewise, another important aspect of the issue is revocation of delegation,. What is the opinion of fuqaha’a, because, we note in the laws of many Muslim and non-Muslim countries that the right to divorce may be delegated to the wife at the time of the contract This issue need to be clarified, and its Islamic ruling should be illuminated in the light of the Qur'an, Sunnah and the opinions of jurists. The delegation of this right to another individual or authority depends on the knowledge, because, the authorization of wife to divorce herself includes the sense of transferring the ownership to her, because, in the case of her carrying out of the power, she is functioning for herself without the husband." Its mean that al-tafwīḍ is technically in the field of Islamic Law is passing on right of divorce to wife or any other with consent
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