A third nikahnama, from the All India
Muslim Women’s Personal Law Board, sparks another controversy in the
Muslim community.
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 nikahnama among
vast sections of people. She added that the basic thrust of the new
nikahnama 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.”
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.
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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