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Freedom, by contract
Updated:Jun 10, 2017
 
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By  Subhashini Ali 
 
Marriage between a Muslim man and woman is not a sacrament but a contract. This means that every Muslim woman has the right, given to her by her religion, to frame the conditions she wishes to make part of her marriage contract. Unfortunately, this fact is not part of the discussion on reforms in Muslim Personal Law.
 
Shireen Moosvi, who retired as head of the department of history at Aligarh Muslim University, published a paper of which three nikahnamahs from the 1700s formed a part. All pertained to the marriages of couples belonging to families from Surat, engaged in maritime trade. In addition to prescribing a generous amount as mehr, four conditions were to be agreed to by the groom: He will not marry again; he will never use physical violence to the extent of leaving any marks on his wife’s body; if he separates from his wife without making any provision for her, she will have the right to divorce him, retaining her rights over mehr and other valuables and property; if it is discovered that he has taken a concubine/slave girl, she will be entitled to take ownership of the woman in question, sell her and keep the proceeds.
 
Additionally, since the husband would be travelling overseas, an important condition is that if he does not return for a stated period, he will be assumed dead and she will be eligible to inherit his property, run the business and even for re-marriage.
 
These nikahnamas are proof that Muslim brides can ensure their rights at the time of marriage. It is unfortunate that in practice, they are being denied access to these when surely, the process of augmenting these rights should have been taken further, and, in most Muslim marriages, printed copies of nikahnamas sanctioned by “religious” authorities are used. The rights of the bride are conspicuously absent in these.
 
The AIMPLB (All India Muslim Personal Law Board) has now promised the Supreme Court that it will draft a Model Nikahnama which will restrict the practice of triple talaq. This is a promise the Board has often made in the past.
 
After the Shah Bano judgment, the All India Democratic Women’s Association (AIDWA) initiated a campaign for “Equal Rights and Equal Laws” for women of all communities and organised a signature campaign, demanding an end to unilateral divorce, polygamy and the practice of halala and for equal rights of guardianship and custody of children. Hundreds of thousands of signatures of Muslim men and women were collected and handed over to the AIMPLB.
 
In April 2001, the Board called a meeting to discuss Muslim womens’ issues and announced that it would prepare a Model Nikahnamah. In 2005, it circulated a draft that AIDWA critiqued on the following grounds (among others): The draft nikahnamah insists that dispute resolution should be done by a Sharia court, blocking any appeals to the courts of law, which is clearly a violation of the Constitution; the draft only requests the husband to “avoid talaq in one sitting”, denying any real protection to the wife; the right of women to ask for “khula”, which is a religious right, on the other hand, finds no mention in the draft; dowry, an un-Islamic practice, is not forbidden; child marriage is permitted if the parents consent; the horrific practice of halala is sanctioned by insisting that nikah between a woman and the man who divorced her is not permissible; polygamy, quite gratuitously, is declared permissible; the husband is permitted a “reasonable degree” of violence, and to deny his wife the right to visit her family.
 
Widespread criticism elicited minor changes and the well-deserved burial of the finalised Model Nikahnamah occurred when it was taken off the Board’s website several years ago.
 
Shia clerics too have published their own Model Nikahnamah, which is widely used. The section titled “Conditions by the Bride” includes the right to visit her family, the right to take up employment, the right to share in the upbringing of children and the conduct of domestic affairs, the right over her mehr and the right to demand a separate dwelling if the husband’s relatives trouble her. The husband and his family are forbidden from demanding cash, gifts or a marriage feast. The husband is enjoined to take care of the needs of the wife and children. If he disappears for two years, or stops providing for her, or if he uses physical violence endangering her life and limbs, he delegates the right to divorce to his wife.
 
Five arbitrators from each side are appointed to resolve disputes and attempt reconciliation. When this fails, a document has to be signed for a divorce to come into force. In this, the husband is enjoined upon to provide for his (ex) wife’s essential needs, until she acquires the means of livelihood.
 
Within the confines of Muslim Personal Law, therefore, there is great latitude for ensuring the rights of women as far as marriage, divorce, maintenance, etc., are concerned. These are unfortunately being denied by those who are determined to defend patriarchal norms, even at the cost of being true to the religion they claim to defend. This is something they have in common with their counterparts in all communities who, in the name of religion, deny the women of their communities their rights.
 
 
 
 
 
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