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Published in the 16-30 June 2005 print edition of MG; send me the print edition

ISLAMIC PERSPECTIVES

Model Nikahnama meets the needs of our time

By Muhammad Abdul Haq Ansari

The Milli Gazette Online 

The All India Muslim Personal Law Board has approved a model Nikahnama for Muslims in its 18th conference held at Bhopal. Though many points contained in the approved Nikahnama were already prevalent in Muslim society, yet there was no consistent or model Nikahnama before this one. Hence by doing so the Board has done an important job for Muslims which should not only be appreciated but accepted also. Though this is a kind of pledge or promise, it must be accepted as no pressure has been exerted to accept it. 

One important point of this Nikahnama is to lay emphasis on bringing about uniformity in the marriage procedures. Uniformity has been explained to mean things which are common among different sects and schools of jurisprudence. For example, among Shias, Sunnis, Ahl-e Hadith, Bohras and other sects, fundamental principles of Islam are common. The Board has tried to project these things in this Nikahnama which lay emphasis on issues which are commonly accepted by all these sects. It does not deal with minor parts which differ in various sects and schools. For these, Muslims should follow what their sects and schools prescribe. 

In Islam marriage is a contract between husband and wife, which is a joint process. According to Shari’at, marriage should be performed in an open and celebratory manner. It should not be a secret affair. Presence of parents or guardians is necessary because it is they who bring up their children and do everything for their physical and mental growth. Hence it is not proper if they do not participate in such functions. Marriage is held openly so as to give it publicity and an air of celebration and this means that it should not be a secret or totally private affair as happens in the West.

As regards the payment of mahr at the time of Nikah, Islam prefers that it should be paid at the time of marriage itself. If it is not possible to pay the entire amount, at least a part must be paid at that time and the rest can be paid later. This practice in Islamic Fiqh is termed as Mahr Mu’ajjal and Mahr Ghair Mu’ajjal. Payment in terms of gold and silver is directed because the value of currency fluctuates. More often, the value of gold and silver rather increases under the present system which is advantageous for ladies. It should be made a habit which in addition to being useful for ladies, will also be a strong guarantee for their good future.

Shari’at has ordained dower to be given in accordance with man’s financial position. Hence this should be followed. If its quantity is fixed, some people can take advantage because of their personal gain which will lead to unfair results. For example, some rich person as well as a poor employee or a petty trader can fall in this category. There may be difficulties for both categories of people. The rich may be worried about their daughters whereas in case of the poor employee or the petty trader the other party will be worried. Islam does not allow forced marriages. Such things should be avoided. When a girl becomes major, parents are not in a position to order her. They can of course advise her. Once a girl came to Prophet (pbuh) and said that she has been married but she does not like it because she had been married against her wishes. The Prophet (SAW) allowed her to get separated. 

Marriage of an adult girl against her wishes or permission is not proper. Nikah will take place but its continuance is not compulsory as seen clearly in the previous instance.

As far as amendment in Nikahnama is concerned, if any problem crops up for any group or party after its implementation, it can be considered. Effort has been made in this Nikahnama to unite all the different communities and sects and when there is unity, if any problem comes up later, some way out can be found out for further agreement.

Another important point is that in order to remove or solve differences and conflicts in conjugal life, emphasis has been laid on family elders and Darul Qaza (arbitration councils) to solve them. The objective of these efforts is that in case of family disputes, outsiders’ intervention should not be sought and disputes could be solved by mutual discussion and understanding. That is why efforts are being made to set up Darul Qazas in as many places as possible and it is being emphasised that now a practical shape should be given to it. The advantage of this system would be that it will involve less expenses and disputes can be settled quickly. As against this, if disputes are taken to courts, the matter will be hanging for a very long time and the parties have to face a lot of difficulties. Moreover, judges in such courts are not fully conversant with rules of Shari’ah and Islamic laws. Complaints in this respect are common, which cause many problems to contending parties. Huge expenses are involved in such cases which cause difficulties to the parties. Therefore, people should try to avoid going to such courts.

As far as family planning is concerned, if government frames rules to this effect and enforces it, that is a different thing. Otherwise husband and wife have their personal views and are at liberty to do whatever they like. Islam has not made it compulsory to go on producing children but care should be taken to see that no illegal or non-Sharai method such as abortion etc is resorted to. Husbands and wives should make an understanding that not many children should be produced and a small family should be maintained. This is not illegal under Islam.

Absence of compulsion or pressure in spite of a contract, aims to bring home the point that no legal problem is involved. Man’s activities are optional. Whatever a man has agreed to should be put into practice. If there are differences between husband and wife, what should be done to settle them? Both should be ordered to resolve their differences amicably or they should approach any authoritative and learned religious scholar to intervene in their differences and his verdict should be accepted. Or if there is a Darul Qaza, the matter should be referred to it. If the matter is referred to Darul Qaza, there will be much less expenses involved and the decision will be taken quickly too.. While delivering the judgement, the ruler, religious scholar or Darul Qaza should take into account the rights of husband and wife.

From Shari’at’s point of view, the parties should be adult or major for the nikah. There is no restriction on age. When marriage documents are given to government, age of the parties is also mentioned. The documents will be with the government but courts will not take any action unless someone approaches them. The court does not say that it will not accept these documents, though care should be taken to see that both husband and wife are adults and they may be adults from social as well as legal points of view. Secondly courts should be informed to the effect only that marriage has been performed.

The main objective of the Nikahnama is that women should be given their rights which Islam has given them but because of various reasons prevalent in Muslim society these are denied to them. (Translated from Urdu)

(Dr Ansari is the Ameer of Jama’at-e Islami Hind. This article is based on his conversation Munawwar Hasan Kamal had with him.)

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