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Published in the 1-15 June 2005 print edition of MG; send me the print edition

ISLAMIC PERSPECTIVES

Nikahnama: a problem or solution - ii

By Uzma Naheed, Member of AIMPLB 

The Milli Gazette Online

fter the great objections raised over Shah Bano case, Parliament had thought it fit to interpret Islamic laws in accordance with Qur’anic injunctions. But during the last two years four verdicts were pronounced which went against Shari’at yet no one raised any dissenting voice. Recently, Mumbai High Court in a verdict said that triple talaq pronounced outside the court will not be treated as valid. In this connection it can be said that irrespective of a court’s verdict, Muslims will accept the verdict which is in accordance with Shari’at only. This was true in Shah Bano case also because the Supreme Court had given its verdict in favour of Shah Bano but the same was not acceptable to Muslims. They accepted the verdict which was in line with Shariat commands. In other words, there was no need for such a hue and cry. 

Unfortunately, for the past decade or so we are entangled in the problem whether a Nikahnama can be prepared or not, with the obvious result that in cases where courts do not get any guidance from ulama or Islamic scholars, they pronounce judgment according to their own understanding or interpretation of the Qur’an. Many of such verdicts show that such an interpretation of the Qur’an by the judges has already started but many of us are not aware of it. Some of such cases are as follows: 

1. About three years ago the Supreme Court passed an order for nan-o-nafqah (maintenance allowance) for life to a divorcee. Three years passed for filing an appeal for reconsideration but ulama or Personal Law Board did not file any appeal in this connection. 

2 . In Assam, in Zeenat Bibi case (1993) the court refused to accept a divorce by post. The Gauwahati Bench, in its verdict on an appeal, said that a Muslim male cannot pronounce one-sided divorce unless efforts were made for reconciliation.

3. In 1998 Madras High Court passed an order in Mumtaz Begum case that a husband cannot divorce after falsely accusing his wife. Moreover, since the husband did not make any effort for reconciliation through intermediaries, the divorce is invalid.

4. In 1998, Delhi High Court said in its order in Shabbiran Bi case that Muslim males are very often under the wrong impression that by pronouncing triple talaq they can desert their wives.

Since there was no objection from any side on this judgment, this court might have come to the conclusion that its verdict was not only correct but Muslims too accepted it. Obviously Shari’at did not mean this. Moreover, it was also unfair that the Muslim male, even after divorce, should be made responsible for giving his divorced wife maintenance allowance for life. It is a pity that in spite of Shari’at’s solution, much time was unnecessarily wasted on Nikahnama because of which men themselves put other men in trouble. 

Obtaining Khula’ also is an extremely difficult problem. Women feel shy in telling men many things which pertain to their family and private lives. Even during the days of Prophet (pbuh) women used to convey their problems to him through his wives. Because of the customs and traditions prevalent in the Hindu society, divorced women in our Muslim society also lose their honourable and respectable position and have to face serious problems. In order to solve this problem if women are also given the right of divorce under certain circumstances, their position can be safeguarded. For example, if a man treats his wife very cruelly, beats her or is a drunkard and does not pay attention to her daily and essential requirements and if all attempts at improving the man through others’ intervention fail, she may be given the right to pronounce divorce on herself. Alternatively, the Muslim Personal Law Board can assign the Imams of big mosques belonging to different sects in the country to settle Khula’ cases with the help of prominent women of the locality every week so that women whose request for Khula’ is justified should be helped by nullyfying their marriage.

Fifteen years ago when, motivated by Maulana Ashraf Ali Thanwi’s book, Heelatun Naajiza, we had prepared a Nikahnama and after discussing it with many ulama, some amendments were incorporated into it. At that time late Maulana Qazi Mujahidul Islam Qasmi had forwarded that Nikahnama draft to ulama throughout the country. After obtaining their views on that draft, a final text was compiled and published by Fiqh Academy in the form of a book under the title Ishtirat Fin Nikah. Some ulama openly said that conditions laid down in the Nikahnama are permissible.

Mehr (dower) is a right which Islam has given to women but its payment is generally considered unnecessary. Wives are very often coaxed to exempt their husbands from its payment because therein lies their spiritual and material well-being, as they are told. Under these circumstances, it is necessary that at the time of Nikah both men and women, i.e., husbands and wives, are made to understand Mehr’s importance and necessity with the due emphasis that this is not an unnecessary ritual but it is the wife’s right which should be given to her. It can be given not only in cash but even in kind such as ornaments, gold, silver, shares, immovable properties etc as is proven by Hadith that at the time of Hadrat Fatima’s marriage the Prophet (pbuh) asked Hadrat Ali what assets he had. He said that all that he had was a small water-skin, an armour and a mat. The Prophet asked him to sell the armour which brought him 400 dirhams. Fatima’s mehr was fixed at 500 dirhams. In the early ages of Islam the salary of the Khalifa used to be 300 dirhams. From this point of view, an amount of 500 dirhams will be considered a fairly good amount. According to Yusuf Sholapuri 500 dirhams of those days will be equivalent to today’s Rs 94000. 

Similarly, at the time of Hadrat Zainab’s marriage, her mehr was settled at four tolas of gold, 18 tolas of silver, one animal of burden, one full pair of women’s clothing, 25 seers of atta and 5 seers of wheat which the Prophet himself had paid. Leaving aside the animal, if the value of other items is assessed, it will be roughly Rs 68,000. The status of an animal of burden in those days was like a car these days. Therefore, the value or price of such an animal can very well be understood. Contrary to all this, in our society now-a-days mehr, in the name of mehr-e Fatemi, is settled at Rs 500 and even at Rs 10 in certain cases!

In case of divorce, bringing up children is also a problem which needs serious attention. The responsibility of minor children is that of the man which he normally does not fulfill. A mother, under the compulsion of motherly affection, somehow or the other brings up the children though it is an extremely difficult job for her under the circumstances. Very often such women have to do household chores in others’ houses to earn a living and bring up children whereas the man takes a second wife and becomes free from bringing up his children born by the first wife. As a matter of fact, children should be kept under the care of their mother though the responsibility for meeting their expenses should be of their father. Since our society suffers from many defects, after divorce a woman is deprived of mehr, property and even children. 

Unfortunately all these injustices are perpetrated in the name of Islam. It was because of these reasons that the necessity of a Nikahnama was felt so that rights of women as granted by Islam could be safeguarded. For second marriage we have made it compulsory for a man in this nikahnama to obtain the permission of his first wife or at least to inform her so that the first wife could rightfully demand suitable maintenance allowance, accommodation etc for her as well as expenses for bringing up children, their education etc because justice and fair play demands this.

It is a fact that we habitually adopt double standards. Very often we oppose objectionable things, and rightly also, as long as we ourselves are not involved in these things or we ourselves become victims of those things. It must be remembered that when a fire breaks out, it does not burn things selectively. Similarly, if there are vices or evil practices in a society, not only some selected people but everybody is affected. 

Those who oppose the Nikahnama have only two alternatives. Either they should offer suitable solutions of such problems in view of the peculiar circumstances of our society or be prepared to be answerable to God Almighty on the Day of Judgment if they support the prevailing injustices and vices in our society or at least knowingly ignore them. (Translated from Urdu) 
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See also: Nikahnama : a problem or solution - i  

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