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Published in the 1-15 Nov 2004 print edition of MG; send me the print edition

ISSUES

Nikahnama is not an issue

By Zafarul-Islam Khan

The issue of Nikahnama, that is the marriage document, has been raised from time to time by social activists while the religious leadership has been reluctant to consider it due to differences among various Muslim schools of thought. 

Unlike Hinduism and Christianity, marriage in Islam is not for life come what may. Rather, it is a contract between two eligible persons, male and female, to live together in peace, harmony and love and to raise a family.1 It is Allah's injunction in the Qur'an (2:282) to Muslims to write down every contract and transaction; hence it is only natural and Islamic that the most important contract in one's life should be committed to paper and witnessed by two reliable persons. 

Barring important and rich families, the tradition of having a written contract of marriage is fairly new. It is only in recent decades that you have a written document for almost every marriage although this document is mostly issued by persons who do not enjoy any official authority. The same maulvi or qazi who used to perform the marriage rites now comes with a register he buys from bookshops. The register has a simple form in triplicate which the qazi fills and gives one copy each to the bride and the bridegroom and keeps one in the register for future reference. This is a very simple document which registers names of the bride and bridegroom, her wali (guardian), their addresses, names of two witnesses and the amount of mahr (dower) fixed and whether it is mu'ajjal or muwajjal, that is promptly paid at the time of marriage or deferred. The mahr belongs to the wife. Her father or husband cannot make use of it without her express permission.

These registers are printed by booksellers without any authority from the State, a mufti or even any darul uloom or the like. I am at a loss as to why the kind of forms that some activists demand are not printed and sold like the old registers? I am unable to understand why people ask the All India Muslim Personal Law Board to okay a certain format? The AIMPLB is not a fiqhi body as such. It was and remains an unofficial private forum to raise Muslim voice on Muslim personal laws especially in the context of the saffron and liberal-leftist demands to change it. 

Any format for marriage contract is alright if it does not contradict Islamic laws. Any condition put forward by the bride or the bridegroom is valid as long as it is within the laws of Islam. In any case the AIMPLB has announced that it will consider the proposed model nikahnamah in its next meeting at Kozhikode next December. It is not expected that the board will really come out with any revolutionary model to satisfy all. If at all, the approved text will be a watered down copy of the suggested models doing the rounds in the community for some time. 

The issue of Muslim marriage laws is not being debated in India alone. Indeed this is a hot issue in the Gulf countries, North Africa and places like Egypt and even Iraq at present.

The issue of Nikahnamah today is not whether it should be committed to writing or not. It is about the conditions the bride or the bridegroom may want to impose on the other at the time of marriage. Any condition, imposed and accepted by the other party, is valid and binding as long as it is not against Islamic laws and the spirit of the institution of marriage itself is not flouted, e.g., refusal to sleep with the husband or to bear children. 

There may be conditions about the standard of living the husband has to ensure for his wife, her right to divorce him if he takes another wife, insistence to live in a separate house, right to work, right to help her parents out of her own income, right to continue studies, right to divorce her husband (talaq al-tafwid), right to custody of children in case of divorce, and so on and so forth. But she cannot stipulate that she will not share with him a roof or that he has to cut off relations with his parents. Likewise, the husband can stipulate in the nikahnamah that the wife will not take up a job, will not demand a separate residence, will not demand to keep her relatives with her in her husband's residence, will not go very often, for instance every month, to her parental home. If the would-be wife accepts these conditions, she will remain bound by them unless the husband later absolves her of them.

There are some other practical problems with Nikahnamahs. A nikah or marraige of a virgin cannot be conducted without the consent of her father or legal guardian (wali), if the father is dead, like parental grandfather, uncle, son of uncle and so on. A recent Moroccan family law passed last year (2003) considers wali as the agent of the woman who is bound by her wishes.2
However, a divorcee or widow can contract the marriage herself. The two witnesses have to physically ascertain from the bride if she agreed to the marriage proposal. The bridegroom too has to verbally say in front of the witnesses that he accepts the marriage. 

The marriage has to be an open ceremony because openness and declaration of the marriage is a basic requirement for its validity. Only to write down the contract or to utter words which do not clearly mean acceptance of the marriage are not sufficient because an open declaration and clarity are necessary.3

Of course in both the cases two just witnesses will be required. The recent Moroccan family law has said that an educated and mature (rasheedah) can contract the marriage without needing the consent of her wali.4

Nikah over the phone and Internet too is an issue today. The society has more or less accepted this form although this was not envisaged in the early procedures of marriage as the physical presence of the bride and bridegroom and their oral consent at the time were thought to be necessary.

Though marriage in Islam is a contract, it is understood that it is permanent. Continuation of marriage is the rule, divorce and separation are exceptions. Therefore, if the contract says that the marriage is for a certain stipulated time, it is invalid. There are some exceptions though. Shi'as believe in temporary marriage (Mut'ah) while some Gulf shaikhs have allowed temporary marriage which is contracted in secret. It is called zawaj al-misyar. Both are term-contracts which though frowned upon, do exist and are used by people who find themselves in foreign lands and seek to satisfy their sexual desires within a semblance of an Islamic marriage contract. But such a marriage is against the spirit of Islam.5

Laying down "conditions" is now in vogue in the Gulf where brides put down all kinds of conditions on their would-be husbands. These include stipulations like the husband has to employ a full-time maid servant, holding of the marriage ceremony in a certain place like a five-star hotel, costly presents to all her relatives, provision of a driver and an expensive car like BMW, that he must take her on holidays outside the country once or twice a year, to register a house in her name and so on. According to the Arab custom, even the father makes his own impossible demands on the would-be husband which may be for cash, land, expensive car or the like. Mahr in Gulf countries now may reach astronomical figures like a million or two riyals in order to force the husband never think of divorce or violation of conditions. The same pattern is creeping in the Indian Muslim society where mahr in astronomical figures is not uncommon now and the intention is only to bind the husband. Earlier the insistence used to be on "mahr-e Fatimi" which is the mahr the Prophet (pbuh) accepted for his daughter and it comes down to a few hundred rupees these days when calculated in silver.

A survey by the Saudi newspaper, Alwatan, two years ago found that instead of strengthening a marriage, these conditions quite often lead to failure of marriages and a high level of incidence of divorce in the Saudi society.6 Husbands sometimes use these conditions to harass their wives who had insisted on too many conditions. For example, a girl insisted that her would-be husband will not stop her from working as a teacher. But after the completion of her studies she failed to get a teacher's job and her husband refused to allow her to take up any other job. Al-Watan survey quotes one such wife, Muna Al-Ghamidi, "Having gone through this personally, I feel sorry for having exaggerated the conditions. Love was soon gone and stubbornness set in on both sides which destroyed our relationship and we competed with each other to see if the conditions are being met. It became more like the life of a policeman and a thief and ended in divorce." The conditions did not do any good to me, she said. This should open the eyes of activists who want to bind husbands with a lot of conditions thinking that these will lead to a strong and successful marriage. 

(Paper presented in the National Meeting on “A dialogue on socio-economic and legal issues of Muslim women” held at Jamia Hamdard on 13 October 2004)

Footnotes

  1. According Shaikh Muhammad Al-Salih ibn Al-Uthaimin, marriage in Shari;ah is "a contract between a man and a woman to enjoy each other, raise a good family and a sound society." 
    http://www.al-eman.com/Islamlib/viewchp.asp ?BID=371&CID=1

  2. http://www.womengateway.com/ar/default. asp?action=article&id=1519

  3. http://www.islampedia.com/MIE2/MainInter/ default.htm

  4. According to Dr Ahmad ibn Abd al-Rahman Al-Kubaisi, professor of Umm al-Qura University in Makkah, some ulama have allowed a mature women to contract her marriage without the consent of her wali. This is based on an interpretation of the Quran (2:232) where Allah has forbidden adl, that is to stop a womn from marrying someone who holds good credentials but is disliked by her wali.
    http://www.islamtoday.net/questions/show_question_content.cfm?id=7290
    Professor Abu Bakr Salih has quoted this on the authority of Abu Bakr Jabir Al-Jazairi (Minhaj al-Muslim, ed 5, 1983, Batna, p. 4310 and others like Shaikh Yusuf Al-Qaradawi:
    http://www.elislah.dz/arabi/elwallifizawaj.htm

  5. Saudi Shaikh Khalid ibn Abdillah Al-Muslih says in a fatwa that Zawaj al-Misyar is valid but "detested" (makruh) because it is kept secret.
    http://www.almosleh.com/publish/article_452.shtml

  6. http://www.alwatan.com.sa/daily/2002-07-15/affair.htm «

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