YoursTruly, by contract!
I got married in my mid twenties and at the peak of my career. Having attained a fair amount of independence and strong decision making skills, I personally managed all the details of my wedding, the preparations for which went on for about a year. From the clothes to the jewellery, reception venue to the card layout, even some post marriage financial details — all was under check, except for one: my nikahnama. It never occurred to me that the piece of paper I was due to sign on the day of my wedding, which would bring lasting changes to my life, begs consideration. At that time it was understandable as neither my mother nor probably any of my antecedents had the privilege of reading or having read to them their marriage contract. But after more than a decade into marriage, it amazes me how I could overlook this aspect. I have read each employment contract word to word before signing it, bank documents and even few belonging to property transactions in my name have been given at least a glance, then why not the contract entitling my life to a man?
The festivities before and after the actual wedding carry on for days. When the wedding does take place, in most cases the bride’s lawyer enters the room with a pre determined and pre written marriage contract, speaks aloud the name of her husband to be and the dower thrice, to which the bride murmurs yes, after which she is asked to sign the paper and the parents heave a sigh of relief — their daughter is married! What the daughter doesn’t know is that with the help of that paper she could have received whatever she expects after marriage, she could have determined conditions which would make a divorce settlement less bitter or less dragging, she could have even determined the right to divorce her husband instead of ‘asking’ for his permission!
What we know about the nikahnama and what we don’t?
The nikahnama is a binding contract and a fundamental element of an Islamic marriage. It is a legal evidence of marriage under the Muslim Family Laws Ordinance 1961 in Pakistan and describes the rights and obligations agreed upon by both parties (bride and groom). The nikahnama begins with basic profiling of the bride and the groom, asking their names, ages and addresses. An interesting clause to note here is a special question for the bride only, asking whether she is a virgin, divorcee or widow, the purpose of which remains unclear. In the case this being the woman’s second marriage, it is sometimes further asked whether she has any children from her previous marriage and how many.
“This is essentially to ensure the legitimacy of a woman’s children from her previous marriage,” says Abru Bukhari Sohail, a former civil lawyer. “When this is stated in the nikahnama, it becomes clear that the woman’s second husband has accepted and given legal status to her children from the previous relationship.” However, this additional question is not always added in the marriage contract and in that case it maybe asked to ensure whether the woman has completed her iddat or waiting period after the demise of her first husband or her divorce. “In any case, it does seem discriminatory that only the bride is asked this question,” Dr Khalid Zaheer, an eminent Muslim scholar points out. “Whatever the reason, it should be asked from both the bride and the groom.”
Then the very important clause of haq mehar –an obligatory gift given by the groom to his bride — appears. The haq mehar or dower can be in the form of cash, gold or property. This is usually discussed and decided between the parents of the bride and the groom, mostly over the phone and in a hush hush. What is normally not discussed is whether this payment will be prompt or deferred. What is also ignored is the girl, who is to receive that gift and her opinion on it. Her parents normally feel hesitant discussing the details of the clause, fearing that it may outrage the groom’s parents and a good proposal may be lost. Even the amount of the dower is not much debated due to the same fear and the girl’s family often have to contend to a very nominal amount of haq mehar as proposed by the other side.
Later come questions of much importance for the bride, but strangely, they are either struck out or left vacant. Section 17 of the nikahnama allows the girl to state any special conditions before the marriage. “She can demand that she should be resided separately from her in laws, she can discuss and mention the monetary allowance she expects to receive from her husband, she can even demand something as trifle as a refrigerator to be kept in her room! Anything she expects that she be provided to her after marriage can be stated there, once agreed by the husband,” explains Abru Bukhari Sohail. This, however, is never brought up to the girl.
Probably the most important clause in the nikahnama, i.e the right to a divorce for a woman delegated by the husband, is simply ignored. If granted, the wife can claim her dower as well as divorce without going to the court. But parents of the bride gawk at the thought of discussing their daughter’s right to divorce even before she is married. In any case, she already retains the right of khula, the dissolution of marriage by way of judicial divorce. Unfortunately, a khula denies her of the advantage of the haq mehar, placing them at a financial disadvantage. Even the right of divorce by a husband can be curtailed by laying down a special condition, but it is not discussed.
Why is the nikahnama not filled completely?
The Muslim Family Laws Ordinance in Pakistan was promulgated rather recently, in 1961 and the nikahnama was devised under this Ordinance. Then how and when did this trend of partial filling of the document start?
“There are a myriad of reasons for leaving it empty despite knowing about the section,” says Ayesha Alam Malik, Associate at AGHS Legal Aid Cell. “Lack of awareness as to how important it is, some deem it unlucky to ask for the right to divorce at the time when they’re getting married, sometimes their family elders do not agree. If the clauses are filled they would be very beneficial to both parties in the event of a dispute.”
“The bride’s family chooses the nikahkhwan or the cleric conducting the nikah and they are expected to fill it up with the cooperation of the groom’s family,” adds Dr Khalid Zaheer. “If the nikahnama is sensibly discussed and filled up, the treatment of the husband to be meted out to his wife can be determined. But this itself is not a guarantee of a good relation between the spouses. This relation can only be established after an understanding between the two. I am a strong proponent of some form of training or course for few days before the nikahnama is filled up, in which the bride and the groom should be separately or mutually explained, what are the rights and obligations of both towards each other. Marriage counselling is something desirable and Shariah will have no objection towards it,: expresses Dr Khalid.
“The nikahnama should be completely filled by a civil lawyer, not a cleric,” says Qari Masood, who has been teaching the Quran to young Muslims for 20 years and is now fighting a case in the court for her daughter to get khula from her husband.
“The nikahkhwan has no knowledge and no interest in the clauses of the nikahnama. He even deliberately delays the release of the document to receive extra charges, when it can easily be filled up at the time of the nikah and handed over,” he says. Ayesha Alam agrees with this approach. “People should engage the help of a legal representative in order to understand the clauses and their rights prior to the day of the nikah signing even if it is just to consult them. There are often issues with the haq meher and people leave it to the boys’ side to set how much it should be.”
Female qazis
While we debate over the rights granted to women under Muslim law in a marriage contract and their ignorance, an interesting development takes place in our neighbouring country. Jehanara Begum, a woman from Rajasthan and 15 other Muslim women have started working as the first female qazis – or Islamic judges – in India. They have taken part in a two year programme at the Darul Uloom Niswan, an institution in Mumbai that has begun to train Muslim women from all around the country.
The new batch of female qazis insist that they will follow the requirements of Muslim personal law in India that are often overlooked by the male qazis, those being to demand documents to show the groom’s qualifications, proof of income, asking for divorce certificates if they say they are divorced and death certificates if they say their wife has died. “Well there is no clear instruction in the Shariah that only men can assume the role of a qazi,” remarks Dr Khalid Zaheer, adding, “so we can safely assume that there is no prohibition for women taking over this role either.” In any case, we can probably do without female qazis, but what we cannot do without is having complete knowledge of our marital rights and taking the steps to ensure them, before embarking on a new journey in life.
