By Aarefa Johari
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.
Brides 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?”
‘Taboo 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 inauspicious.”
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.
A Model Nikahnama
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 Court.
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.”