Nikahnama is an important step in the right direction
By Syed Shahabuddin
Milli Gazette Online
Some say it is the key to the kingdom of marital bliss. Some rubbish it as an act of deception, an exercise in illusion, to hoodwink the nation and the Muslim women. The Left which neither appreciates the sensitivities of a religious community nor understands the dynamics of social reform in a religious society living in a hostile environment condemns it as too little, too late. The Hindu Right sees it as a move to reinforce the trend towards a parallel judicial system, a milestone on the separatist road leading to another Partition and a step towards the restoration of Muslim rule over India which, in its view, is the ultimate goal of the Muslim Indians. The mainstream parties take it in their stride and, lost as they are in their own game which makes a mockery of the parliamentary system, fail to take notice. The Muslim community, as usual, is divided. The urban elite lambast the Ulema for their ever-growing tentacles over the Muslim masses. The Muslim masses, like their Hindu brethren eke out their miserable existence, live their lives, as well as they can, within their limited means and take birth, marriage, separation and succession as they come and are largely indifferent.
The model Nikahnama, finally endorsed by the All India Muslim Personal Law Board at its 18th Session in Bhopal (29 April - 1 May, 2005) is not a manifesto for change, far less revolutionary change; it is not a broom which will sweep away the cobwebs accumulated over the centuries; it is not a mantra which will restore the rights of the Muslim woman under the Shariat and under the Constitution and bestow upon her the dignity she deserves, control over her body and her life, provide her with equal care and nutrition as a child, an opportunity for education and for gainful employment, to have an income and hold property, enable her to decide when and whom to marry and how many children to bear, grant her immunity against arbitrary and instantaneous divorce or against the threat of bigamy or even polygamy.
To answer all these questions, one has to understand what the Nikahnama is and what it is not and why it has taken so long for the All India Muslim Personal Law Board to formulate it as it is.
The Nikahnama, in keeping with the Quranic injunction to put an agreement into writing, is primarily a record of ‘Nikah’, roughly translated as solemn ‘agreement’ between a man and a woman to marry each other, with consent pronounced in response to questions from a religious functionary called the Nikahkhwan or even a man of piety in the neighbourhood or in either family, in the presence of two witnesses, one for each party. The essentials of a Nikah, the ‘Mehr’ as agreed to and the modalities of its payment, apart from the names and signatures of the parties, the Nikahkhwan and the witnesses are all to be recorded in the Nikahnama. It is debatable whether the Nikahnama is a justiciable legal agreement but it can be notarized and become admissible in evidence in case of legal dispute. In any case it has religious, moral and social force and binds the husband and the wife to well-defined rights and duties and responsibilities towards each other and their progeny and their properties.
Over the years, the Mehr has been often reduced to a symbolic token. Not paid at the time of Nikah as it should be before or immediately after the consummation of marriage, the payment is deferred to suit the convenience of the husband. Over the years the value of the Mehr, if fixed in rupees goes down, as the amount is never revised. Sometimes, it is never paid at all and the husband asks for remision and the wife grants it when either is on death bed!
One progressive feature of the Nikahnama is that it adopts the principle of indexation so that the real value of the Mehr remains unchanged and lays down the modality of payment and this protects the wife. It suggests that Mehr should preferably be defined in terms of gold or silver or real estate whose real value will not depreciate. The importance lies in that in the case of divorce, the Mehr has to be paid immediately, if it has remained unpaid; to provide support for the ex-wife. Also under the Shariat, the ex-husband cannot take back any gift to the wife, in cash or kind, during marriage, as statutorily laid down in Muslim Women (Protection of Rights on Divorce) Act, 1986.
The divorcee, apart from receiving maintenance, is entitled to keep her savings e.g. from earnings, from gainful employment or trade or investment or household budget.
The model Nikahnama includes a Hedayatnama, for the guidance of the husband and the wife for a peaceful and fruitful family life. This takes cognizance of the situations that often obtain in Muslim families.
A substantial omission in the model Nikahnama is its total silence on the question of polygamy. Bigamy could not have prohibited under all circumstances as it is permissible under the Shariat subject to certain conditions. But it could have been regulated, e.g. made contingent on the occurrence of a specific situation e.g. infertility of the wife, and conditional on the economic capacity of the husband to take care of more than one wives and perhaps also the concurrence of the first wife. Even though the incidence of polygamy among the Muslim Indians is more or less the same as the rest of the people, a clear stand would have taken the wind out of the sails of constant and totally false anti-Muslim propaganda that the Muslims practise polygamy to achieve a higher rate of population growth and thus outnumber the Hindus in not too distant a future!
The model Nikahnama recognizes the right of adult Muslim male and female to contract a Nikah on their own but in the case of minors it prescribes the presence of and endorsement by the guardians. This does not mean that the Nikahnama encourages or endorses child marriage. In fact, the incidence of child marriage, which is rampant in the country, is very low in the Muslim community just as infanticide or dowry burning is.
The more substantial criticism of the model Nikahnama arises from the fact that it does not invalidate Triple Talaq, also called the Talaq-e-bidat, the pronouncement of three Talaqs in one sitting or at one time, in the presence or absence of the wife. The entire project of model Nikahnama arose from the need to regulate and if possible to eliminate Triple Talaq which is not only arbitrary, distressing and cruel but has, more than anything else, brought a bad name to the community and created the impression as if it was the normal mode of separation of Muslim couples. The fact is that statistically it is a rare occurrence. No figures are available but one can safely state on the basis of ground surveys at various levels that not more than 10% of Muslim marriages end in divorce, whatever the mode, and Triple Talaq does not constitute more than 10% of all the divorces. Yet, even if the incidence is very low, the social vice needs to be eliminated altogether.
In view of the persistent difference of opinion among the various sects or schools of Fiq’h which comprise the Muslim community in India, the Board could not reach a consensus, even on going back to the mode clearly enunciated in the Holy Quran - 2 Talaqs separated by a month, utilized for reconciliation, followed by another month of grace for further reconciliatory efforts, at whose expiry divorce becomes absolute and irrevocable. The inability of the Board to reach the consensus on this social evil which amounts to a sin shows that given the nature of Muslim society in India, a reformulation of the Muslim Law for the modern times, a Codification, based on the reinterpretation of the Holy Quran and the authentic Traditions of the Holy Prophet is not immediately feasible, unless the Muslim theologians and jurists from various schools of Fiq’h intensively interact and reach a consensus.
However, the model Nikahnama, if widely publicized may persuade and pressurize husbands not to resort to Triple Talaq but to make every effort, with the advice of family elders and the religious leaders and the local Shar’i Panchayat or Dar-ul Quza, to save the marriage from irretrievable breakdown. Thus the progress towards Codification of Muslim Law in India, taking into account the experience of major Muslim countries like Indonesia, Bangladesh, Pakistan, Iran, Egypt, Iraq, Morocco, which appears to be a far cry today, may gather momentum, since Muslim husbands may learn not to exercise their right of divorce arbitrarily, unilaterally and even whimsically. It may be added that, even today, many Hanafi couples try to find a way out of the distressing situation created by a Triple Talaq by obtaining a fatwa for resumption of marital relations on the plea that the husband had no intention to pronounce an irrevocable Talaq and that he had done so, unthinkingly and in a fit of anger. Recently, the Supreme Court has refused to recognize a Talaq unless pronounced in a manner in accordance with the Holy Quran. This creates an anomaly; the highest court of the secular state standing by the Quran on a matter in which the religious establishment allows otherwise!
The model Nikahnama is not an innovation; it is an attempt to standardize the hundreds of Nikahnamas, prevalent in various States, districts and towns and sometimes more than one in the same town, for decades. The document is flexible and the couple may add further clauses in the Nikahnama, falling within the Shariat, if they so wish. For example, clauses relating to ‘Khula’ or about continuing education and eventual employment of the wife and her control of her earned income may be added. A couple may even add a clause on Talaq-e-Tafweez under which the husband transfers to the wife his right of divorce under Muslim Law or the husband is obliged to grant ‘Khula’ to the wife on demand in certain circumstances. Thus the model Nikahnama opens new avenues for social change.
The impact of the model Nikahnama will therefore depend on the level of awareness in the community, particularly among the Muslim women. This awareness will grow with education and economic independence of women. Its pace will vary with the social situation, prevalent in various areas of Muslim concentration or found in various Muslim sub-communities. Even today the Muslim intelligentsia, even those who are not practising Muslims, like to have their Nikah performed by a religious functionary for social reasons i.e. the recognition of the legitimacy of their off-spring. One hopes that they will apply their mind to evolve more comprehensive Nikahnamas which can then set the standard. Thus the model Nikahnama is not the last word. In its historic context Islam stands for stability of family life and looks upon Talaq as an instrument for the liberation of woman, not of her persecution, by a brute husband who neither cares for her nor allows her freedom.
Social situation varies from country to country. Divorce is not a social problem in many Muslim countries. Sometimes marriage is. Because Islam makes the husband responsible for the maintenance of the family and the marital home and no woman agrees to marry a man unless after he has set up a home and has regular income to maintain the family.
Divorce or widowhood is a stigma in the Indian society, a carry over of the Hindu ideas of pollution which has percolated into Muslim community. Remarriage of a divorcee or a widow is not a problem in the Arab world. Muslim women of marriageable age remarry soon after the Iddat. So divorce per se does not loom large as a social problem as in India. So no Nikahnama, not even Codification of Muslim Law can change the social situation without changing the mindset which may be achieved over a period of time through intensive campaign for social reform in Masjids and outside, through print and electronic media which should, as one of its planks, encourage the unmarried Muslim males to follow the Sunna of the Holy Prophet and marry widows and divorcees. But this needs a long haul.
So where do the Muslim Indians go from here? The standardization of the Nikahnama is no doubt a step forward on a long journey, towards a society in which man and woman stand on their own feet, enter into Nikah by free choice and have a happy and peaceful marital life in accordance with Islamic norms. The battle has to be fought on many fronts. As stated above, Nikahnama has nothing more than evidentiary value, it is not a legally enforceable agreement; the present version is not sacrosanct, it can be improved upon, with growing consensus within the framework of the Holy Quran and the Traditions of the Holy Prophet and in keeping with changing social and economic conditions. It has the potential to evolve in the fullness of time into a Family Code for Muslim Indians. But in the meantime, all Muslim girls should receive education like Muslim boys, Muslim women should receive higher education on par with men, they should have opportunities for gainful employment. They would then be entering marriage on terms of equality but conceding, as Islam demands of them for the sake of family peace and stability, a decisive position to the husband in family affairs, since he bears the economic burden.
The All India Muslim Personal Law Board has lit a candle on the path of emancipation of woman and thus contributed to the utilization of the untapped resource of the community, 50% of its population, for its progress and development.
The Board is not a legislature, it enjoys no coercive powers to impose its decisions. The Board has nothing but moral force which arises from the acceptance, by the community, of the Ulema, as a class, as persons who can guide them on how to live within the bounds of the Shariat and maintain their religious identity as guaranteed both by the Constitution and International Law.
The Board is a body of religious scholars of all sects and social workers from entire political spectrum, it has not been elected by the Muslim community but over 33 years of its existence it has achieved the high credibility and standing it commands today. Its composition may be gradually modified to have due representation of all sects, denominations, regions and professions. The recent attempts to set up parallel Boards which have been highlighted by the media do not amount to a split, as not a single member of the Board has left it. But the situation underscores the need for the Board to widen its base and to become a truly nationwide forum for evolution of Muslim Family Law in accordance with the Shariat. It cannot afford to be blind and deaf to what is happening. It must listen to the voices outside and while placing itself firmly on the foundation of the Shariat, cater to the changing situation of the Muslim society in India in this dynamic age.«
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