By Yoginder Sikand, NewAgeIslam.com
Numerous studies have shown that, contrary to what the male, particularly mullah, Muslim ‘leaders’ insist, many Indian Muslim women are deeply dissatisfied with the system Muslim Personal Law as it exists in India today. Keenly aware that many of its provisions clearly discriminate against them, some of these women vocally insist that these provisions also unambiguously contravene the shariah as they understand it. These women, as represented, for instance, by a number of increasingly vocal Muslim women’s groups, demand suitable reforms in the regime of Muslim Personal Law. Most of them envisage such reforms within the broad ambit of a gender-just understanding of the shariah. Yet, fearful of virulent opposition from male Muslim leaders, particularly from sternly patriarchal clerics, and anxious to retain their hold over their Muslim vote-banks, various political parties, including those that style themselves as ‘secular’ and ‘progressive’, continue to turn a deaf ear to the demands of such women. As a result, much-needed reforms in the existing system of Muslim Personal Law, even if within the framework of the shariah broadly understood, have been indefinitely put off.
That, however, has not stopped Muslim women’s groups from using strategies other than pressing for legal reform for addressing or circumventing the blatantly anti-women provisions of the existing regime of Muslim Personal Law. One such strategy they have deployed is by formulating legally-binding ‘model’ marriage contracts or nikah namahs that contain a range of provisions which, in contrast to the provisions of the existing Muslim Personal Law, guarantee equality and justice within the marriage and a fair deal for the woman in case of divorce. One such marriage contract has recently been prepared by the Bharatiya Muslim Mahila Andolan (BMMA), a network representing several thousand Muslim women activists all across India. Printed as a booklet in three languages—Hindi, Urdu and English—it is meant for mass circulation, and is freely distributed. So far, several dozen marriages have been solemnised on the basis of this document.
The document consists of two sections: the nikah namah or marriage contract proper, and the iqrar namah wherein the spouses express their consent or agreement to certain clauses. The nikah namah clearly specifies that it is a legal document and that it is subject to the ‘exclusive jurisdiction’ of the secular courts. In this way, it rules out any adjudicative role for the private shariah courts or dar ul-qazas run by the patriarchal clerics, where women are more likely than not to be denied justice. In a clause that clearly intends to obviate any unnecessary hardship to the wife at the hands of a husband who might wish to harass her, it specifies that the court whose exclusive jurisdiction the contract is subject to must be located in or near the place where the bride ordinarily resides.
The BMMA’s nikah namah differs from Muslim marriage contracts widely used across India in other ways. Many of the popularly-used nikah namahs do not require the groom to specify his existing marital status, including mention of whether or not he is already married to someone else. Numerous cases have been reported of Muslim men entering into a second marriage without informing their new wives of their already being married, thus deceiving them into a polygamous marriage against their will and without their prior knowledge. The BMMA’s nikah namah effectively guards against this possibility by demanding that the groom (as well as the bride) clearly specify their marital status just prior to the marriage: single, widower/widow, married or divorced.
Generally-used Indian Muslim marriage contracts do require the groom to specify the mahr or dower that he provides the bride, this being a necessary and indispensable aspect of a Muslim marriage. Here the BMMA’s marriage contract departs from some generally-used nikah namahs by providing for a separate section wherein the groom has to specify the amount and the different forms in which he undertakes to pay the mahr, whether in cash, gold, silver, fixed deposits, land, demand draft or cheque and so on. Further, unlike many widely used nikah-namahs, it requires that the spouses provide details of whatever articles they and their respective natal families have received from the other party. Recording such details is crucial, particularly in the event of a divorce.
Generally-used nikah namahs do not record many personal details of the spouses. This absence of important details can, as is routinely the case, be misused by errant husbands to abandon their wives or to claim, in the event of a divorce, that they are unable to provide their divorced wives with a decent maintenance. To ward off these possibilities, the BMMA’s nikah namah requires the groom to specify his present occupation, the address of his place of work, his monthly income, and the particulars of the property he owns. He is also required to furnish a document that proves his current employment status and his address.
Muslim spouses are allowed by the shariah to insert clauses into their marriage contract to protect their interests, provided these do not contravene shariah rules. The iqrar namah prepared by the BMMA, which is appended to its nikah namah, inserts some such clauses that aim to ensure justice and equality between the spouses and certain basic rights for the wife in case of divorce.
The first such clause relates to the mahr. In many Muslim families, brides are persuaded by their husbands or their relatives to waive off the mahr they are owed if it is promised in the form of mahr-e muwajjal or ‘deferred mahr’. In this way, they lose what can be an important source of economic support in case of divorce. The iqrar namah addresses this issue by obligating the groom to promise that neither he nor his relatives nor anyone else shall apply any sort of pressure on the bride to forgo the mahr or to decrease the amount promised to her. Further, the groom agrees that in the event of his death, his relatives would have to pay the deferred mahr to the groom.
The second such protective clause relates to divorce. Muslim Personal Law, as it exists in India, provides an unfettered right of extra-judicial and unilateral divorce to the husband, who need not provide any grounds for divorce to his hapless wife. The BMMA’s iqrar namah ensures that the husband is deprived of this right by making him agree that neither spouse has the right to terminate the marriage unilaterally. Further, he also agrees that under no circumstance will he resort to triple talaq in one sitting. ‘The right to divorce’, the iqrar namah requires the spouses to legally and formally agree, ‘is shared equally by both the bride and the groom’. This, the iqrar namah adds, is ‘in keeping with the spirit of justice in Islam,’ although here it does not deconstruct and critique the patriarchal traditionalists’ arguments to the contrary.
In the event of serious marital conflict, the iqrar namah obliges the would-be spouses to appoint a representative each from their respective families who would constitute an arbitration council along with what it somewhat vaguely describes as ‘NGO representatives and other individuals having knowledge and integrity’. The marriage, it lays down, cannot be dissolved while the arbitration process is going on and until it is finally over. In the event of divorce, it specifies, the husband is obliged to pay the wife the deferred mahr, if any, all gifts received by her at the time of marriage and subsequently, and an equal share of all property acquired during the subsistence of the marriage. Deviating from the prescriptions of traditional Muslim jurisprudence or fiqh, the iqrar namah obliges the spouses to agree that if the marriage ends in divorce, the former wife will have the right to reside in the marital home and that she will also receive a ‘reasonable and fair’ provision for future sustenance. This, the iqrar namah explains, shall ‘be the equivalent to maintenance for a period of ten years, according to the standard of life which she is accustomed to during her marriage.’ Strikingly, neither theiqrar-namah nor the notes attached to it explain the shariah-backed arguments, if any, for these two provisions. Given that they clearly depart from Muslim Personal Law, as it exists in India, and that, therefore, many Muslims might wish to know the shariah-based justifications for these provisions, it is unfortunate that the document ignores this aspect altogether.
In yet another departure from traditional Muslim jurisprudence that allows the marriage of minors, the iqrar namah requires that the bride be at least 18 years of age and the groom at least 21. Further departing from conventional fiqh, the husband agrees that he shall not be entitled to, and nor shall he enter into, a second marriage as long as this marriage lasts. The iqrar namah adduces what it regards as Quranic support for this restriction, adding that, ‘monogamy is the stated ideal in the Quran’. The iqrar namah also allows for the spouses to add any more clauses to the marriage contract provided these do not violate the provisions, not, significantly enough, of the shariah, as conventionally understood, but, rather, of the nikah namah itself.
The BMMA’s nikah namah and iqrar namah are made legal and binding, requiring both the spouses to sign on them. These documents, appended together, are followed by two pages containing various Quranic verses that stress love and concern between the spouses and their mutuality and equality, the obligation of an arbitrator in the event of marital conflict that might lead to divorce, reasonable maintenance for a divorced woman and so on. Based on such verses, the BMMA envisions gender justcie and equality between spouses, as reflected in its marriage contract. What is missing, however (and perhaps somewhat conveniently), are other verses of the Quran as well as statements attributed to the Prophet Muhammad that patriarchal clerics routinely interpret as sanctioning women’s subordination and male privilege. Creatively engaging with these, as numerous Islamic feminist scholars have done, by providing alternate interpretations that challenge those of the defenders of male supremacy would perhaps have helped make the BMMA’s marriage-contract more popular and acceptable. Be that as it may, it is certainly a major step forward in the struggle for Muslim women’s rights.
Legally-enforceable ‘model’ nikah namahs like the BMMA’s cannot, of course, be a substitute for the formal reform of Muslim Personal Law by the state, but, given the reluctance of the state to engage in any such reform, it is certainly an important means to seek to promote Muslim women’s rights in the face of the continued existence of the present regime of Muslim Personal Law.