19 May 2017
On Tuesday, during a week of intense
judicial examination of the validity of triple Talaq, the NGO All India Muslim
Personal Law Board made a statement that left several Muslim women and women’s
rights activists rolling their eyes.
Marriage, the Board told the Supreme Court,
is essentially a contract according to Islam, and a Muslim woman can choose to
insert specific clauses and conditions in her Nikahnama (marriage contract) to
safeguard her own interests – including the rejection of instantaneous triple
Talaq that Muslim men can pronounce to divorce their wives.
Technically, this is all true. The Islamic
Nikah is the only religious marriage in India that sees marriage as a contract
between husband and wife rather than a holy sacrament. And in an ideal,
gender-sensitive Nikah, both the bride and the groom would have the right to
mutually negotiate the terms of their contractual union.
A Muslim woman could, in this ideal case,
ensure that her Nikahnama mentions a high Meher, the amount that a groom pays
the bride for her financial security in case of a divorce. She could also claim
the right to pronounce triple Talaq herself, or prohibit her husband from pronouncing
this form of instantaneous divorce.
But how often does this ideal situation
actually play out in the lives of Muslim women on the ground?
Almost never, say the women themselves. In
a patriarchal society where women barely have the right to choose their own
spouses, the bride and her family have little or no say in wedding-related
decisions. Nikahnamas are typically drawn up by Quazis or priests, many of them
affiliated to the Muslim Personal Law Board itself. And according to women’s
rights activists, the majority of Sunni Quazis have no inclination to make
brides aware of their right to negotiate the terms of marriage.
with No Say
“Most Muslim wives have no idea what is
written in their Nikahnama, forget having a say deciding the terms of the contract,”
said Noorjehan Safia Niaz, a co-founder of Bhartiya Muslim Mahila Andolan, one
of the organisations that has petitioned the Supreme Court against triple
Talaq. “In fact, in a survey we did of Muslim women, we found that 50% of wives
don’t even know where the Nikahnama is kept in their marital homes.”
This is evident in the case of Gausiya
Ahmed, a 28-year-old Unani doctor from the Maharashtrian town of Bhiwandi. When
Gausiya had an arranged marriage in 2014, neither she nor her family had a
chance to even read her Nikahnama before it was placed in her hands for a quick
signature on the wedding day.
“My parents and I were not involved in
anything. The Qazi wrote the Nikahnama and decided on a wedding date and Meher
amount with my husband’s family. I was simply told to sign the paper,” said
Gausiya, who claims she was never even given the bride’s copy of the wedding
contract. “This is how it has been with all my friends and relatives who got
married – the bride’s family are not in a position to have a say.”
After a year of suffering extreme domestic
violence at the hands of her in-laws, Gausiya received a written notice of
triple Talaq from her husband, for giving birth to a daughter instead of a son.
She has refused to accept the validity of the divorce, but the ordeal led to
her finally getting a copy of her Nikahnama. “It doesn’t say anything about
Talaq,” said Gausiya. “The Quazis are the ones who control weddings, and they
will never let the woman get any divorce rights in the Nikahnama. Because obviously,
which woman would agree to a marriage that allows the husband triple Talaq?”
to Mention Divorce’
Even if the bride is aware of her right to
negotiate aspects of the Nikahnama, societal pressures often make it impossible
for her to exercise this right.
“In our culture the bride’s family often
has a huge inferiority complex with respect to the groom’s family, so they
don’t feel comfortable asking for a large Meher amount in the contract,” said
Noorjehan Niaz. “And mentioning divorce in a Nikahnama is considered
On this matter, even the clerics seem to
agree. Maulana Mehmood Daryabadi, the general secretary of the All India Ulema
Council, admitted that including any kind of divorce clauses in a wedding
contract is viewed as a taboo, particularly by the bride’s family.
After all, said Daryabadi, “no one likes to
talk about death at the time of a wedding”. Death? Did he mean divorce? “Well,
it’s the same thing,” he said. “These are not things people like to bring up
during a happy occasion.” Most Nikahnamas, then, simply contain the names of
the bride, groom and witnesses, and mention the Meher amount.
On Wednesday, while hearing arguments for
and against triple Talaq, the Supreme Court asked the All India Muslim Personal
Law Board if it could issue a “modern and model Nikahnama” that provides wives
the right to decline triple Talaq.
The concept of a model Nikahnama of this
kind is not new, but examples of such progressive marriage contracts in India
are few and far between.
One example is the model Nikahnama issued
by the All India Muslim Women’s Personal Law Board, an organisation founded in
2005 as a counter to the All India Muslim Personal Law Board’s male-centric
world view. First published in 2008, this model Nikahnama includes several
clauses safeguarding a woman’s rights in marriage.
The Nikahnama rejects all forms of
unilateral, instantaneous triple Talaq, and specifically mentions that “Talaq”
uttered over the phone, internet, text messages or other media would be
invalid. It also does not recognise divorce pronounced in a fit of anger or
intoxication. To divorce their wives, the model Nikahnama allows for
non-instantaneous Islamic Talaq, uttered three times over a period of several
months, with a three-month gap between each utterance to allow both spouses to
rethink the divorce and revoke it if necessary. This Nikahnama specifically
provides for Khula, a practice that allows a woman to release herself from the
marriage by returning her Meher to the husband.
The success of the women’s board’s
Nikahnama has been limited so far. “We printed 1,000 copies of our model
Nikahnama in 2008, in Hindi and Urdu, and last year they all got used up,” said
Shaista Ambar, the founder-president of the All India Muslim Women’s Personal
Law Board. Ambar is now bringing out a new edition, with English included as a
language, to cater to a growing demand from emigrant Indians.
The All India Shia Personal Law Board
issued a similar model Nikahnama last year. And occasionally, there have been
rare cases of Muslim women using the Islamic provision of Talaq-e-Tafweez to secure divorce rights in their Nikahnamas. Under
Talaq-e-Tafweez, the husband
delegates the authority of pronouncing a divorce to his wife, under specific
conditions agreed upon in the contract.
For instance, in the case of Mohd Khan
versus Shahmali in 1971, the wife had stipulated in her prenuptial agreement
that her husband would live in her parents’ home after marriage. When he
didn’t, she sought a divorce that was upheld by the Jammu and Kashmir High
So far, however, the All India Muslim
Personal Law Board that claims to represent the majority of Indian Muslims has
not included provisions like Talaq-e-Tafweez
in any of the Nikahnamas it has issued over the years.
“In 25 years, we have spoken to so many
clerics about making Nikahnamas more modern, but they just don’t want it,” said
Hasina Khan, founder of Bebaak Collective, one of the women’s groups
petitioning against triple Talaq. “So even if in theory the Board says that the
bride and groom can make their own Nikahnama, in practice it is always the word
of the Qazi that controls marriages.”
AIMPLB has come up with yet another
misrepresentation of fact in its statement: "Nikahnama is essentially a contract according to
Islam, and a Muslim woman can choose to insert specific clauses and conditions
in her Nikahnama (marriage contract) to safeguard her own interests – including
the rejection of instantaneous triple Talaq that Muslim men can pronounce to
divorce their wives”
Unlike the secular
prenuptial contract of
this era, the Nikahnama does not contain any details of rights and
of the spouses. Nikahnama’s religious origin binds the couple to the code
of conduct - mutual love, care, mercy, compromise and understanding as encapsulated in the Qur’an without any ambiguity. Accordingly, historically, a Nikahnama contains a very short list of conditions that a
on the would be husband to legally prevent him from taking any undue
of her, typically, subjecting her to domestic violence, giving her
alimony if he terminates the marriage, allowing her to acquire education
pursue a professional career and a commitment to living in monogamy. As a
cannot insert a right expressly forbidden by the Qur'an such as
taking to polyandry (a second husband), a man cannot put the right of
instantaneous talaq as
that is prohibited in the Qur’an. Hence, no man will be required to put a
barring his wife from taking to polyandry and no woman will be required
a condition to bar her husband from giving her instant talaq. And no
many times or through whatever communication channel (email, telex, sms
etc) a man
pronounces triple talaq, it will be treated as invalid - ‘thoughtless
expressions’ for which God does not take
humans to task (2:225)
A woman does not have to
condition of instantaneous termination of marriage (khul) as the Qur’an
against payment of compensation (2:229). A Nikahnama
may, however, spell out,
in broad terms, the Qur’anic rights and duties of men and women that
may include khul but not instant divorce by the man - as the former is
allowed by the Qur'an and the latter forbidden. In fact, the right of a
woman to terminate her marriage by paying compensation is intrinsic in
Islamic marriage and cannot be revoked contractually and remains
standing even if not spelled out in the Nikahnama.
As for the issue of ‘talaq-e-Tafweez,’
a husband cannot impose any condition on a woman in a marriage contract that is
in violation of the Qur’anic code and therefore cannot incorporate any clause that will enable
to him to divorce her in any way other than as prescribed by the Qur’an.
Those who want to incorporate
conditions like a man’s right to instant divorce (Or express omission thereof)
or for example a woman’s right to take another husband (or its omission), or
any other condition that is in violation of the Qur’anic code (any kind of
sexual freedom of either partner, or unqualified obedience of a woman to her husband (or his parents) or either
partner having to snap all his/her parent-side filial ties etc. will do better by
taking recourse to a court marriage against prenuptial contract.