Sunday, March 30, 2008

Debate over Nikahnama among Muslims

Women’s charter


A third nikahnama, from the All India Muslim Women's Personal Law Board, sparks another controversy in the Muslim community.


Shaista Amber, chairperson of the All India Muslim Women’s Personal Law Board, at her office in Lucknow

THE debate over nikahnama (marriage contract) is once again engaging large sections of the Muslim community following the release of a “Shariat Nikahnama” by the Lucknow-based All India Muslim Women’s Personal Law Board (AIMWPLB) on March 16. This is the third nikahnama to be presented before the community in three years. The All India Muslim Personal Law Board (AIMPLB) released a model nikahnama on May 1, 2005. This was followed by a Shia Nikahnama framed by the All India Muslim Shia Law Board (AIMSLB) on November 27, 2006. All three presentations were apparently motivated by the realisation that Muslim marriage laws needed to be interpreted properly, adapting them to the changing situations faced by the community.

The fact that three different nikahnamas have come up in a matter of three years is evidence that there are significant differences in terms of what is considered to be a “proper interpretation” of Muslim marriage laws. Not surprisingly, each Board has claimed its interpretation to be the “right one” and dismissed the other interpretations as “irrelevant”. Various sections of the Muslim community have taken sides with these Boards, at times providing intensity to the debate on the nikahnamas and their guiding principles, the Shariat. A common feature in all the discussions on the subject has been the assessment that certain provisions of Muslim marriage laws have been construed as being discriminatory to women. All the three Boards naturally claim that their nikahnamas have tried to address this aspect.

In 2005, there was widespread criticism, especially from women’s rights groups, against the model nikahnama. The women’s organisations rejected it as inadequate and said that the AIMPLB had failed to address the issue of discrimination against women comprehensively and shown a lack of willingness for radical reforms. Large sections of the Shia community complained that their special socio-religious characteristics had been ignored by the Sunni-dominated AIMPLB. Social observers see the framing of the subsequent nikahnamas as an attempt to concretise the points of criticism made against the model nikahnama.

The latest nikahnama, scripted by women scholars and which is applicable to both Sunnis and Shias, has sought to improve upon the 2005 document. It has a 17-point Hidayatnama (guidelines for marriage under the Shariat law for the bride and groom) and an eight-point section on the process of talaq (divorce). It has not only recognised the right of women to seek khula (a process of divorce) and separation but also stipulates financial settlement in order to protect the financial security of the woman and her children.

Another significant advancement is that it advises registration of all marriages. In keeping with the times, the new nikahnama prohibits the proclamation of triple talaq through SMS (short messaging service), e-mail, phone and videoconferencing. It also stipulates that talaq will be valid only if it goes through a mandatory period of three months to give the couple ample time to reconsider the issue.

The nikahnama says that the woman must approach a Darul Kaza (a Shariat court) for seeking divorce under khula. In the case of talaq, all gifts received during the wedding and afterwards will be the property of the bride. In the absence of a divorce, any woman can go for separation if the husband is missing for four years, has an illicit relationship with another woman, or has refused to disclose human immunodeficiency virus (HIV) status before or after marriage. Besides, issues such as not providing food, clothes and other essentials will be counted as grounds for separation. In the case of separation, the woman has the right to mehr (the bride money paid by the groom at the time of marriage). It has also been stipulated that three forms should be filled in during nikah – one each for the marriage bureau, the bride and groom and the quazi.

In an unprecedented initiative, the AIMWPLB has scripted its Shariat Nikahnama in both Hindi and Urdu. Shaista Amber, chairperson of the AIMWPLB, told Frontline that the bilingual publication of the nikahnama was done solely with the purpose of propagating the nikahnamanikahnama was to implement the provisions of the Quran that ensure protection of women and promotion of women’s rights in letter and spirit. “The Quran is not merely a religious text, it is a Constitution for the social and moral life of the believers of Islam. Unfortunately, many leaders of the clergy as well as the champions of social, political and religious institutions of the community seem to have forgotten that.” among vast sections of people. She added that the basic thrust of the new

Shaista Amber said the new document was devised with the fear of Allah and not the Mullah. It carries extensive quotes of ayats (verses) from the Quran. She maintained that this was necessary to blunt the opposition of sectarian maulvis, who would have tried to attack the nikahnama in the name of Islam.

However, the AIMPLB is of the firm view that the new nikahnama is redundant. Board member Zafaryab Jilani told Frontline that the whole nikahnama was an exercise in semantics, and that it could not become the medium to create law. According to him, the new nikahnama seems to have been promulgated under that mistaken impression, especially the portion where it advises registration of marriages.

“Law is the creation of the state and bodies such as the AIMPLB have a full understanding of that,” Jilani said. He pointed out that the Board’s condemnation of triple talaq was stronger than that of the AIMWPLB. “The model nikahnama has said in clear terms that it is a crime, whereas the new nikahnama only states that it is unacceptable. On the dowry question too, the Shariat Nikahnama only says that dowry should not be made compulsory. This is certainly a feeble argument,” Jilani pointed out.

Begum Naseem Iqtedar Ali, the sole woman to find a place on the executive committee of the AIMPLB, is of the view that the new nikahnama merely detracts attention from the core issues affecting the Muslim community, such as deprivation, hunger, lack of education and shortage of jobs in government and other institutions.

“This is the time to focus on such issues. The Justice Rajinder Sachar Committee Report on the status of Muslims has clearly pointed towards this need. But here we have some publicity-seeking people raking up the issue of nikahnama as though it is the biggest malady facing the community,” she said.

Shaista Amber countered Begum Naseem Ali’s comments by pointing out that along with the socio-economic problems highlighted by the AIMPLB leader, the torture through and within the system of marriage undergone by Muslim women was also a matter of concern.


Shaista Amber releasing the Shariat Nikahnama at a press conference in Lucknow on March 16

Sunni cleric Maulana Khalid Rasheed Firangi Mahali’s objection to the new nikahnama is on a different plane. According to him, the inclusion of the suggestion to prohibit SMS and e-mail talaq is only gimmickry.

Several leaders of the Shia Board pointed out that the new document made no advancement on the Shia Nikahnama and hence it was not required for the Shia community. They pointed out that the norms devised by the Shia Board were liberal and that it had accepted khula in 2006 itself.

It had also said that the bridegroom would have to give an assurance that he would not harass the woman after marriage or subject her to any kind of ill-treatment. The Shia Nikahnama had said that failure on these counts would be ground enough for the wife to seek legal separation.

Financial compensation was also covered in the Shia Nikahnama because it had stipulated a separate undertaking from the bridegroom, through which he had to guarantee a monthly maintenance amount to the woman even after divorce and until such time she was able to gain her own source of livelihood.

The Shia leader Maulana Kalbe Jawwad, while agreeing with these points, doubted the legal sanctity of the Shariat Nikahnama.

However, Islamic law expert and member of the Law Commission of India Tahir Mahmood said that there was nothing objectionable from the Islamic point of view in the new nikahnama. Professor Mahmood is of the view that the prohibition of talaq communicated by phone, e-mail or SMS and the wife’s right to khula conform to the Shariat in letter and spirit. He added that “even if somebody finds it at variance with the traditional law, parties to a Muslim marriage indubitably have full contractual freedom under Islamic law and can stipulate, at the time of marriage, conditions of their choice not violating any mandatory provision of Shariat. The new nikahnama does not contravene any such provision and is fully valid under the legal rule of contracting parties’ freedom of stipulation.”

He also pointed out that “the provisions of the new nikahnama are in full accord with the codes of Muslim law now in force in major Muslim countries and also with the interpretation of talaq law given by the Supreme Court of India”.

Evidently, there is no dearth of debate on the nikahnama, especially in the context of the AIMWPLB initiative. The majority of neutral observers are of the view that the new nikahnama does advance the cause of the “oppressed” Muslim woman more than the previous ones.

If nothing else, it has once again brought to focus Muslim marriage laws and their usage as instruments of gender oppression. However, an initiative like this will have real and lasting impact only if the AIMWPLB and its allies are able to propagate among the people the issues raised and the legal clauses inherent in the nikahnama. That requires resources of different kinds and it is doubtful whether the AIMWPLB has them in sufficient quantity and quality.

Travelling through some Muslim-dominated pockets of Lucknow, Frontline discovered that generally Muslim women are not aware of the new nikahnama or its clauses although a large number of men have taken note of the debate in the media. Clearly, the AIMWPLB has a long way to go and at the moment all that is tangible is the ripples created by its nikahnama as well as Shaista Amber’s enthusiastic assertion that she would move heaven and earth to spread the message of the “liberating document”


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