By Rafia Zakaria
November 21, 2018
IT is a fact universally known that the Nikahnama, or marriage contract, is the most neglected aspect of the marriage to be. Due attention will be given to what everyone will wear, the colour and hue of the bride’s outfit, the value of her jewellery and the alacrity with which an appointment can be made with this or that make-up artist or photographer.
Then there are considerations of the venue, the guest list and, of course, the menu. In many cases, loans can be and are procured to finance the festivities. Relatives, even those no one has seen or heard from in decades, demand to be involved; neighbours show up expecting similar invitations.
In the midst of all these expensive festivities, most forget about the terms of the marriage itself, at least those terms that are, in most Muslim countries, written out in the marriage contract. In the arranged (and even non-arranged) marriage mores of South Asia, the discussions regarding the match have to be optimistic and geared towards imagining a marriage of infinite longevity. The whole point of all the vetting, the many family members involved, the protracted consideration of whether the families will get along, and whether the bride and groom will get along, is to ensure that dissolution never occurs. The words and emotions of the marriage-arranging moment are all pivoted on this one and central expectation, a silent code of sorts to which everyone on either side obediently adheres.
The assumption of everlasting marriages sadly does not translate into reality. As more and more Pakistani women have discovered, the standard form used as the Nikahnama in Pakistan rarely, if ever, contains stipulations concerning the wife’s right to divorce. Even the clauses the document does contain, such as those regarding payment of Mehr, get little attention, with most people stating nominal amounts or the assumed value of jewellery given to the bride as the Mehr payment.
The result is that divorce initiated by the husband does not often provide the wife with an adequate amount to begin a new life, let alone to clean up the detritus left by the old one. So terrifying is the spectre of even considering the possibility of divorce that rights duly owed to all Muslim women, Pakistanis among them, are given up, simply so that the dreaded‘d’ word never enters the discussion.
In recent years, as Pakistan has urbanised and more marriages take place between educated professionals, this disdain towards the value of the Nikahnama as a venue for ensuring women’s rights has become more apparent. Women, many of whom are equally educated and often more qualified than their husbands, have been alarmed to discover that their marriage contract does not provide them with the right to initiate divorce, or Khula, unless the husband ‘concedes’ this right. Already dealing with the vagaries of a broken relationship and its attendant emotional baggage, they find that they are not operating at an equal level in terms of their ability to obtain a divorce.
There may be hope on the horizon, however. In recent weeks, news has surfaced that the Council of Islamic Ideology (CII), the advisory body charged with ensuring that Pakistan’s law accords with Islamic teachings, is reviewing the Nikahnama form used by most Pakistanis to solemnise marriages. According to Qibla Ayaz, the current chairman of the CII, the new document will require the cleric performing the ceremony to inform the bride of her right to ask for the dissolution of the marriage. Once the right is conceded at the point of executing the Nikahnama, there will be no further need for permission in the future. Instead of having to navigate a complex and time-consuming legal process, a woman seeking a divorce would simply be able to, well, obtain a divorce.
The question, of course, is whether Pakistani women, brides and brides-to-be in particular, will avail the opportunity being provided to them. According to reports of what the council is considering, the effort is designed to prevent clerics from scratching out the clause concerning the wife’s right to divorce. However, to actually make the clause on the document a right available to women, they would have to ask for the right in the document. To do this, of course, neither the bride nor the family members crowding around her at the moment of signing could get by without considering the possibility of divorce in the future.
The introduction of new requirements that would eliminate the likelihood of women’s rights in a marriage and in its dissolution from being scratched away by a cleric at the behest of (usually male) family members is a very positive development that has the possibility of transforming the lives of millions of Pakistani women. Once the requirements are introduced, however, it will be up to women themselves to push for the right to be granted at the time of marriage. All Pakistani women, married or unmarried, have a role to play in this transformation. While the CII can perhaps ensure legal changes to the document, it cannot with similar ease eliminate the cultural taboos around discussions of divorce at the time of marriage.
Pakistani women can and must help change this status quo, inform and reform what is expected into what is just and necessary. Much is said about the rights Islam provides to women; the right to divorce is one of these rights, with the Nikahnama being a venue where equality in a relationship can be ensured. Once the CII speaks and issues the new regulations, it is up to the women to do the rest.
Rafia Zakaria is an attorney teaching constitutional law and political philosophy.