Freedom, by contract

Nikahnamas let Muslim women frame their marriage and divorce conditions.

Written by Subhashini Ali | Published:June 10, 2017 12:00 am
muslim marriage, nikah, muslim nikah, nikahnama, triple talaq, three divorce, meher, muslim meher, what is meher, indian express news, indian express opinion Shireen Moosvi, who retired as head of the department of history at Aligarh Muslim University, published a paper of which three nikahnamahs from the 1700s formed a part.

Marriage between a Muslim man and woman is not a sacrament but a contract. This means that every Muslim woman has the right, given to her by her religion, to frame the conditions she wishes to make part of her marriage contract. Unfortunately, this fact is not part of the discussion on reforms in Muslim Personal Law.

Shireen Moosvi, who retired as head of the department of history at Aligarh Muslim University, published a paper of which three nikahnamahs from the 1700s formed a part. All pertained to the marriages of couples belonging to families from Surat, engaged in maritime trade. In addition to prescribing a generous amount as mehr, four conditions were to be agreed to by the groom: He will not marry again; he will never use physical violence to the extent of leaving any marks on his wife’s body; if he separates from his wife without making any provision for her, she will have the right to divorce him, retaining her rights over mehr and other valuables and property; if it is discovered that he has taken a concubine/slave girl, she will be entitled to take ownership of the woman in question, sell her and keep the proceeds.

Additionally, since the husband would be travelling overseas, an important condition is that if he does not return for a stated period, he will be assumed dead and she will be eligible to inherit his property, run the business and even for re-marriage.

These nikahnamas are proof that Muslim brides can ensure their rights at the time of marriage. It is unfortunate that in practice, they are being denied access to these when surely, the process of augmenting these rights should have been taken further, and, in most Muslim marriages, printed copies of nikahnamas sanctioned by “religious” authorities are used. The rights of the bride are conspicuously absent in these.

The AIMPLB (All India Muslim Personal Law Board) has now promised the Supreme Court that it will draft a Model Nikahnama which will restrict the practice of triple talaq. This is a promise the Board has often made in the past.

After the Shah Bano judgment, the All India Democratic Women’s Association (AIDWA) initiated a campaign for “Equal Rights and Equal Laws” for women of all communities and organised a signature campaign, demanding an end to unilateral divorce, polygamy and the practice of halala and for equal rights of guardianship and custody of children. Hundreds of thousands of signatures of Muslim men and women were collected and handed over to the AIMPLB.

In April 2001, the Board called a meeting to discuss Muslim womens’ issues and announced that it would prepare a Model Nikahnamah. In 2005, it circulated a draft that AIDWA critiqued on the following grounds (among others): The draft nikahnamah insists that dispute resolution should be done by a Sharia court, blocking any appeals to the courts of law, which is clearly a violation of the Constitution; the draft only requests the husband to “avoid talaq in one sitting”, denying any real protection to the wife; the right of women to ask for “khula”, which is a religious right, on the other hand, finds no mention in the draft; dowry, an un-Islamic practice, is not forbidden; child marriage is permitted if the parents consent; the horrific practice of halala is sanctioned by insisting that nikah between a woman and the man who divorced her is not permissible; polygamy, quite gratuitously, is declared permissible; the husband is permitted a “reasonable degree” of violence, and to deny his wife the right to visit her family.

Widespread criticism elicited minor changes and the well-deserved burial of the finalised Model Nikahnamah occurred when it was taken off the Board’s website several years ago.

Shia clerics too have published their own Model Nikahnamah, which is widely used. The section titled “Conditions by the Bride” includes the right to visit her family, the right to take up employment, the right to share in the upbringing of children and the conduct of domestic affairs, the right over her mehr and the right to demand a separate dwelling if the husband’s relatives trouble her. The husband and his family are forbidden from demanding cash, gifts or a marriage feast. The husband is enjoined to take care of the needs of the wife and children. If he disappears for two years, or stops providing for her, or if he uses physical violence endangering her life and limbs, he delegates the right to divorce to his wife.

Five arbitrators from each side are appointed to resolve disputes and attempt reconciliation. When this fails, a document has to be signed for a divorce to come into force. In this, the husband is enjoined upon to provide for his (ex) wife’s essential needs, until she acquires the means of livelihood.

Within the confines of Muslim Personal Law, therefore, there is great latitude for ensuring the rights of women as far as marriage, divorce, maintenance, etc., are concerned. These are unfortunately being denied by those who are determined to defend patriarchal norms, even at the cost of being true to the religion they claim to defend. This is something they have in common with their counterparts in all communities who, in the name of religion, deny the women of their communities their rights.

The writer is vice president of the All India Democratic Women’s Association (AIDWA)

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  1. M
    MyTake
    Jun 11, 2017 at 1:27 am
    Islamic world sees women meant only for tilting and the Indian ethos sees women as form of divine energy. The scripture say when Lord Brahma created males, first they were going here and there, living a life of no cohesion and fighting with each other all the time. After that Lird Brahma created women so they could bring conesion in life and find a place of their choice where they could live peacefully. There is a parrallel to current Muslim world and the time when Lord Brahma created only male only. This time by force women have been vanished from life, hence, Islam virtually being turned into a male only world doing the same when there were no faminine in existence! This is the undoing of the doing of creation!
    Reply
    1. M
      MyTake
      Jun 11, 2017 at 4:36 am
      Quran 2:223 [Wife as Tilth] Your wives are a tilth for you; so approach your wives when and how you like but take heed of your ultimate future; and fear God and know that you shall meet Him; and give good tidings to those who obey [Quran 2:223]
      Reply
    2. M
      MyTake
      Jun 11, 2017 at 1:15 am
      There is a sea of difference between the true and real Indian life and a contractual life. Its. Sea, sea, sea of difference! Even you can put the God to fill up that vacuum of difference, going by true Indian perception of life! It's a bad import from a defunct society that is engulfing the world with its non avoidable consequences as a follow up which will take all to the grave. While the time is right just wake up and come out of this burka of mind and save your progeny from self destructive spinning mode!
      Reply
      1. M
        MyTake
        Jun 11, 2017 at 1:08 am
        When "contract" is the driving force in life and when a man get four legal wives, obliviously women by default ends up with "quarter right" in the contract, by default!! No wonder the life long training to put the women under cover (burka - while the man getting four wives), comes handy to remind the women day in and day out, "you are under cover and under control and at best a factory to produce children only (Didn't Quran in one of its aura explicitly say, "women are here for you to tilt"?)!
        Reply
        1. M
          MyTake
          Jun 11, 2017 at 12:59 am
          Islam is an weapon to somewhat "legally and religiously" rob humanity of its real human value? Its the greatest Stockholm Syndrome ever to paralyze the humanity where some halfwits are also fal victims to it who are fai to clearly see the dividing line between humanity and fascism!
          Reply
          1. M
            MyTake
            Jun 11, 2017 at 12:51 am
            Contract in the name of the marriage makes humanity and human values of much lesser importance in human life! Humanity is a very big word and is as big as ones imagination is (and is as small as ones imagination, too). How can love exist in a "contract" you stupid women! What is the role of love, then? Have you asked that question, ever, to yourself! May be it is because of this perception of "contractual" bond/life that comes into play first in children's upbringing (eventually giving rise to countless suicide bombers then creating human-bomb citizens for nation building, words like love, humanity, compassion does not get much importance/mentioning in Islamic literature! Result of which is "contractual" lens/rights have transformed Islamic world into a living (should I say Allah will have no reason to maintain the He created, because His tribe is doing it very well, here on earth!) where kil , suicide bombing, beheading all goes in the name of religion, you stupid women
            Reply
            1. D
              David
              Jun 10, 2017 at 10:41 pm
              Muslims are backward. Whats so hard to figure. Example: Look at "all" the Muslim countries. Given a chance Muslims want to immigrate to the liberal West. But then fight for religious backward personal laws. Given a chance P a kistanis and Bangladeshis die to visit India. And millions stay back illegally. And then turn Wahabis and Jehadis. Stupid Hindus.
              Reply
              1. N
                Nabeel Kirmani
                Jun 10, 2017 at 7:59 pm
                A must read for all those who think Islam is misogynistic.
                Reply
                1. E
                  Employ Ment
                  Jun 10, 2017 at 4:27 pm
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