By Flavia Agnes
Aug 29, 2018
The Law Commission of India is expected to bring out its much-awaited report on family law reforms before the end of this month before the expiry of its term. It is anyone’s guess whether it will come out with a draft uniform civil code (UCC) or merely suggest reforms within family laws of various religious communities. Its chairman, Justice B.S. Chauhan, has expressed doubts at various public meetings about the feasibility of enacting a uniform family law for a diverse and pluralistic society such as India. So it is interesting to see what the final recommendations of LCI will be, particularly regarding the Muslim Family Law Reform.
In the meanwhile, there is one issue, which Maneka Gandhi, minister for women and child development, has been grappling with — introduction of the provision of pre-nuptial agreement. However, she has met with a stumbling block from bureaucrats from her own department, who have prevailed upon her that to introduce this concept into Hindu law; legislators will have to accept that Hindu marriage is purely a contract and strip it of its sacramental traditions. This will never be accepted by our legislators, they claim, even after 60-odd years of the enactment of the Hindu Marriage Act. Hindu law continues to be viewed as sacramental despite the enactment, with Vivah home, Saptapadi and Kanyadaan (the brahminal rituals) forming its core essential ceremonies.
It is in this context the concept of a Nikahnama (marriage contract) under the Muslim law gains credence. The Muslim marriage, since its inception in the seventh century, is conceived as a civil contract between consenting parties. Hence, it also recognises the rights of parties to opt out of this contract. In fact, divorce or dissolution of marriage is the gift of Islamic law to the Western world, which is very seldom recognised as such. Since it is a civil contract, it provides the scope for conditions to be written into the contract. The economic safeguard to the bride in her marital home in the form of Mehr (a sum assured as a mark of respect and future security to the bride) is found in all printed forms of Nikahnama, which the Qazi solemnising the marriage brings along, to be signed by the parties and their witnesses. It is another matter that the Hindu custom of dowry has been adapted by Muslim communities and Mehr is reduced to a mere token rather than an economic safeguard. But there are communities, which stipulate Mehr in gold coins or valuables rather than the token amounts.
A question which has repeatedly been raised within Muslim social activists since the 1990s is whether it is possible to popularise the notion of a conditional Nikahnama (akin to the pre-nuptial agreement proposed by our minister) to safeguard women’s rights. When this debate was vibrant and there was pressure on the All India Muslim Personal Law Board (AIMPLB, or “the board”) to release a “model Nikahnama”, a tame version devoid of all protective clauses, was released by the board in 2005. It is not surprising that it was rejected by Muslim women’s groups who were engaged with the issue.
In response to the AIMPLB, the Shia Board in 2006 and the Women’s Board in 2008 released their own Nikahnamas. The common features in these model Nikahnamas are — introducing Talaq-E-Tawfitz (delegated right of divorce through which the wife can divorce herself), the right of Khula, protection from domestic violence and polygamy, and against the un-Islamic practice of dowry. The most important provision was the arbitration clause to settle dispute as per the Quranic provision, to counter the practice of arbitrary oral Talaq. Other clauses included custody of children, return of gifts and post-divorce lump-sum settlement.
In addition, several Muslim women’s groups drafted their own Nikahnamas. The one drafted by Uzma Naheed of Iqra Foundation was submitted to the then president of the board, Qazi Mujahid ul Islam Qasmi, who sought responses from Ulema of different persuasions. While the majority view was conservative, there was a strong minority view defending the progressive and pro-women conditions in the Nikahnama who argued that one should keep in mind the demand of our times. But finally, the board did not endorse this draft and Ms Naheed was left dejected.
Since marriage is viewed as a civil contract, there are instances of scholars, and intellectuals drafting Nikahnamas on their own accord, to protect the rights of women within their own family or social groups. Some of these are on stamp paper as private agreements between consenting adults.
In an incisive article published in Economic and Political Weekly in 2012 (October 27), A. Suneetha, a scholar based in Hyderabad, while documenting this process, commented that the debate over drafting a model Nikahnama occupies a socio-legal terrain which distinguishes it from the state directed reforms and this debate had the potential to bring transformation within the community. But since this article was published, the campaign to popularise a conditional Nikahnama did not move ahead. During the recent controversy over triple Talaq, the issue of a model Nikahnama as a viable alternative to protect the rights of Muslim women was hardly discussed in the media.
However, this right to stipulate conditions against arbitrary oral Talaq was mentioned by lawyers representing the AIMPLB as an antidote to triple Talaq. This led Chief Justice Jagdish Singh Khehar to ask a pointed question — whether responsible members of the board were willing to file an affidavit to this effect. The lawyers conceded and an affidavit was duly filed that the board would release a model Nikahnama to curtail arbitrary oral divorce. Since then, the issue has been dormant and no one has taken the board to task on this.
What is even more surprising is though many organisations had claimed that they had drafted a progressive and pro-women Nikahnama — the Shia Board, the Women’s Board, the Bharatiya Muslim Mahila Andolan, etc, none filed an affidavit to produce their own “ideal” draft before the bench hearing the triple Talaq issue. There was also no mention of how each had popularised their own versions to bring in social transformation alluded to by Suneetha in her essay in 2012. It seemed that the vibrant debate of the first decade of the 21st century had been buried. This silence by various sects and community-based organisations working for the rights of Muslim women provided a fertile ground for the government to introduce a bill to criminalise triple Talaq ostensibly to protect Muslim women.
So it appears that both the minister’s anxiety to introduce the concept of pre-nup agreement and the Muslim groups’ efforts to popularise conditional nikahnama, have remained at the level of theoretical discussions, and have not reached down to the ground to help ordinary women.
Most Muslim women are unaware of their right to stipulate conditions in their Nikahnama. Even if they are aware, they lack agency at the time of negotiating the marriage. It is also viewed as inauspicious to discuss the mode of Talaq at the time of Nikah. But since the right is Quranic, keeping women in the dark about their basic rights would amount to violating the Quranic stipulations. It almost amounts to accepting the Hindu notion of marriage as a sacrament. Only by working with Qazis at the local level who solemnise marriages and with Muslim girls of marriageable age to make them aware of their rights, can the aspiration of social transformation through a conditional Nikahnama be effected. Approval of the board is not mandatory, as editor of Milli Gazette Zafar ul Khan commented, since it is not a Fiqh (jurisprudential) body.
Flavia Agnes is a women’s rights lawyer