Islamic Marriage Without Reciting From The Holy Quran Is Still Valid In Muslim Law
By Taslima Yasmin
January 19,
2021
A recent
decision of the High Court Division (HCD) declaring that women cannot act as Nikah/marriage
registrars in Muslim marriages was subjected to considerable scrutiny. There
was a writ petition challenging the validity of a decision of the law ministry
cancelling a panel of selected Nikah registrars (or commonly known as "Qazi")
for Dinajpur's Phulbari municipality. The reason shown for cancellation was
that all three selected candidates were women and "in the present
realities of Bangladesh, women could not be appointed as Nikah
registrars". One of the selected panellists had filed the petition, which
was eventually rejected by the HCD.
It is to be
noted that unlike other religions, a Muslim marriage is not considered as a
religious sacrament but is in the nature of a civil contract (as reflected in
the majority of Islamic legal texts). Hence, Islamic law simply requires offer
and acceptance between legally capable parties in the presence of two competent
witnesses. However, in Bangladesh we follow certain religious and cultural
ceremonies to solemnise a marriage—for example, reciting from the holy Quran as
well as following some other social rituals. Although such rituals are commonly
practiced, marriage without such rituals is still valid in Muslim law.
Similarly,
registration is not a requirement prescribed by Muslim law for contracting a
valid marriage. It was the Bengal Muhammadan Marriages and Divorces
Registration Act, 1876 that first provided for voluntary registration of Muslim
marriages and divorces in the Indian subcontinent. The law created public
offices of marriage registers simply to record Muslim marriages and divorces in
government prescribed register books. It required parties to apply for
registration within one month of the marriage and divorce being effected,
clearly indicating thereby that a valid marriage had already taken place
without registration.
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Also Read:
Bangladesh: Ayesha
Siddiqua Denied License For Marriage Registrar For Being A Woman
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During the
Pakistan period, the issue of registration of Muslim marriages was again
brought to light when the Muslim Family Law Ordinance 1961 (MFLO) was enacted.
The MFLO was a result of the recommendations made by the Commission on Marriage
and Family Laws that was formed in 1956. The purpose of the Commission and the
law was to protect and enhance the rights of Muslim women. Although some
facilities for voluntary registration were present under the 1876 Act, the MFLO
in section 5 provided for compulsory registration of marriages solemnised under
Muslim law and prescribed punishment for non-compliance. Compulsory
registration was recommended by the Commission as absence of any documentary
evidence of a marriage made proof of the marriage difficult, which eventually
caused hardships to Muslim married women in claiming rights to dower,
maintenance, inheritance, etc.
Later in
independent Bangladesh, a separate statute was brought in 1974 for registration
of Muslim marriages and divorces, which elaborated the existing provisions on
marriage registration. Hence, section 5 of the MFLO was repealed by the 1974
Act, while the rest of the provisions of the MFLO are still in force in Bangladesh.
Thus while "solemnisation" of a Muslim marriage is a matter or
religious rites and ceremonies, "registration" is purely a matter of
statutory law not being part of the religious prescriptions.
Photo: Ayesha Siddiqua
In Bangladesh a Muslim woman,
Ayesha Siddiqua has been fighting a legal battle for being a Marriage Registrar
since 2014.
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The HCD, in
rejecting the petition, had mainly relied on two grounds. Firstly, the task of
marriage registration had been considered a difficult and somewhat
impracticable job for women as it requires traveling in remote areas, often
"at night" and may also occasionally involve "crossing rivers
and canals through boats". Aside from the fact that across the country,
millions of women are successfully employed in jobs requiring equal or higher
mobility, it is perhaps only appropriate that the decision as to whether a
woman is ready to take up the challenges of the job of a Nikah registrar, is
left to her own choice without drawing assumptions for all women in general.
Secondly,
in justifying appointment of only men as Nikah registrars, the court
distinguished marriage registrars' role from other public offices holding that
"the primary role and duty of a nikah registrar is to solemnise the
marriage between Muslim couples". However, as discussed, solemnisation of
marriage was never deemed to be within the duty of the nikah registrars under
the 1974 Act. Because the law requires the registrars to hold an Alim
Certificate from a recognised madrassa, a common practice had developed that
the nikah registrars conduct the religious rituals of marriage ceremonies as
well. However, it is also not uncommon that a nikah registrar would send his
office assistants to solemnise a marriage, or that the parties had already
solemnised the marriage and came to the nikah registrar afterwards for
registration. In fact, the 1974 Act and its 2009 Rules had also clearly
indicated such possibilities by providing that when the marriage is solemnised
by the nikah registrar it will be registered at once, but when it is solemnised
by any other person, the parties have to register the marriage with the Nikah
registrar within a certain period from the date of solemnisation.
The HCD
also held the view that during menstruation, a woman is not allowed to enter a
mosque where apparently many of the marriages now take place. Menstruation as
such, was considered as a "physical disqualification" for women in
being appointed as Nikah registrars. However, since solemnisation of a marriage
is not a legal duty of the registrars and can be done through other persons, a
woman registrar can simply choose not to perform any religious rituals if she
finds it necessary and can get the marriage solemnised through a local mosque's
Imam or any of her office assistants during menstruation. Menstruation thus
cannot be a question to be relevantly asked when appointing a Nikah registrar
whose duty, even as the preamble of the 1974 Act depicts, is simply to
"register Muslim marriages and divorces".
Our
Constitution guarantees equality before the law and protects against
discrimination on the basis of gender. We believe that our apex court would
continue upholding those constitutional guarantees and guide our efforts in
ensuring equal status for women towards a more progressive path.
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Taslima Yasmin teaches at the Department of Law
of the University of Dhaka.
Original Headline: Can a woman register a
Muslim marriage?
Source: The Daily Star
URL: https://newageislam.com/islamic-society/islamic-marriage-without-reciting-holy/d/124099