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Published in the 16-31 May 2005 print edition of MG; send me the print edition

ISLAMIC PERSPECTIVES

Nikahnama : a problem or solution - i

By Uzma Naheed 
Member of AIMPLB 

The Milli Gazette Online

  • Famous Egyptian Islamic scholar Shaikh Muhammad Al-Ghazali said, “The truth is that as regards women, Muslims have become misguided. Wrong customs and traditions have crept into their society. Many hadiths have gained currency among them which are either completely concocted or more or less untrustworthy, with the result that women have been rendered ignorant and have no knowledge about their religion as well as the world. Education of woman is considered a sin, her entry in mosque is prohibited. She is neither interested in the community’s problems and activities nor she has any role in the building of the present and future.”

  • A famous speaker was saying in a sorrowful way, “How good and auspicious were those days when a woman stepped out of her home on three occasions only, ie from the womb of her mother to the world, from her parents’ house to her husband’s house, and from her husband’s house to the grave.” Dr Yusuf Al Qaradawi said commenting on this: “May God not bring those days back and may history be spared to see again those unfortunate days which might have been prevalent in the age of ignorance but not in the age of Islam. Those may very well be called the victory of cruel customs but not the moderate path of Islam.”

  • Maulana Ashraf Ali Thanwi was a great scholar and a learned person of his times who could foresee the future. When such problems started cropping up, he authored a Nikahnama for which he secured the support of the ulama of all the four schools of thought. That Nikahnama may be seen even today in his book Al Hilatun Najizah. The support for Muslim woman is the support for both sexes. The instructions of the Prophet (pbuh) can be carried out by helping the oppressed and by doing them justice. Similarly the oppressors can be helped by preventing them from indulging in oppression and injustice. 

  • The Egyptian religious scholar Abdul Haleem Abu Shuqqa writes in his famous book Woman During the Period of Prophethood, “Woman is half of the society and according to some, a paralysed part of it. Today she is producing neither a race of mujahids nor she is trying for the progress and development of the Muslim Umma by taking part in social and political activities. Hence a woman cannot be independent unless the man is also independent and the independence of both man and woman can be achieved by following the clear commands and instructions of Allah. In addition to this, God has gifted woman with such feelings and emotions that if she is given correct guidance she can develop greater interest in religion.”

  • Imam Yahya, a Palestinian who teaches in Georgetown University, says that “I have come across approximately 150 books on woman’s hijab but so far I have failed to come across any comprehensive book on her rights.”

  • Allama Iqbal, while addressing a woman’s conference held in Madras in 1928, had said, “A woman should not be married unless and until it is decided clearly as to what will be her rights in her future (married) life”.

These are views and writings which Muslim sympathisers of woman have written about the centuries-old exploitation of women. All of them were in search of the betterment of society through the betterment and welfare of woman. 

Today the family problems of women have made their condition pitiable so much so that like the times of ignorance even today it has become a crime to be a girl. Divorce is like a sword always hanging on her head which can be used any time and on minor grounds (like not knowing how to cook food, some tiff with her mother-in-law and the like). After the husband’s pronouncement of ‘talaq’, she is compelled to move from door to door. New ways of pronouncing talaq have emerged such as through SMS, registered post, fax or email etc. As far as women’s rights are concerned, she is not told about the permitted kinds of mahr (dower) nor she is familiar with the sections and articles of Marriage Act. She is not even told about the amount of her dower.

An objection raised about delegation of divorce rights to woman (tafwiz-e talaq) is that by very nature a woman is emotional and therefore it is most likely that she will take a wrong decision. I do not know under which hadith or Qur’anic injunction people say this. How a woman, who is not only weak but also takes all the responsibilities of children in case of talaq, and is not self dependant, can take such an extreme step simply due to emotion? If viewed dispassionately, all foul cases of divorce reflect the emotional mentality of men, though many of them repent at leisure. 

Another important thing is that man has an alternative outlet of a second marriage whereas no man marries a divorced woman who is a mother of children. Therefore, a woman cannot use this right even under emotion. Under extreme circumstances, however, when a woman finds herself helpless from all sides she can separate from her husband using ‘Talaq-e Baayen’.

In this country, Muslims have neither executive power to enforce Shari’at commands nor they have any judicial system whereby verdicts may be pronounced in accordance with Shari’at. Here males are so unmindful of Shari’at principles that they pronounce talaq through telephone, email or fax without even caring to pay their mahr and without having any intention to meet maintenance expenses during the period of iddat even when the divorced woman is completely helpless to meet her as well as her children’s expenses. Under these circumstance it would not be correct to claim that bringing about reform in society or to create awakening about religious education will solve the problem. History is witness to the fact that even during the golden age of Islam, legal punishments were pronounced and carried out, restrictions were imposed and sinners were punished. Today when we have no system for the enforcement of the Shariat laws, we will have to adopt practical measures to prevent the culprits and to protect the victims in line with Shari’at commands and instructions. Such steps will be commendable, especially when the victims belong to the weaker sex. It becomes all the more important when Qur’an also commands the protection of such persons and a special instruction in this context is given in the last farewell speech of the Prophet (pbuh).

In order to solve family problems, there appears to be no other way except that at the time of the girl’s nikah some conditions should be laid down in which some safeguards be provided for her. Being oblivious of all these conditions, media’s role has been very unhelpful. There is no denying the fact that innumerable women are victims of injustices because we are quite oblivious of their difficulties. The problem is not whether divorce becomes valid by three pronouncements of talaq in one sitting. Followers of all schools of thought agree that three talaqs in one sitting is a highly detestable act which Allah does not like at all. If ulama in their speeches and sermons regularly emphasise that this is a great sin, it can bear some good result. Moreover, if the Personal Law Board asks the Imams to bring home this point to the people in Friday sermons, then also it will bear some fruit but the difficulty is that it is considered only a dispute or a controversy created by the media and that is why it is being ignored. 

One argument advanced against Nikahnama is that it will not solve all the family problems. No doubt, it is true that no law is complete in all respects to solve all family problems as can be seen from the fact that there are legal and religious laws which cover almost all aspects of life but even then crimes and sins are committed. Just as laws can be amended in order to make them more effective, in the same way solutions to different problem can be found in religious laws which are within the framework of Shari’at. This approach has not been objected to in the past.

One of the disadvantages of ignoring these problems is that legal courts try to find solutions to many problems by interpreting the Qur’anic commands and instructions in their own way. Naturally, when we ourselves will not find solutions to problems in the light of Shari’at, the courts will decide cases according to national laws or use their own interpretation of Qur’an and Shari’a. During the past two years, four such cases have been decided in different High Courts in which Qura’nic commands and Shari’at codes have not been correctly interpreted. There was also no reaction from Muslims on these judgements which created the impression that our ulama and jurists have endorsed the verdicts of legal courts which were, truly speaking against the spirit of Shari’at but we are not competent enough to raise our objections because we ourselves have failed to find an acceptable solution to these family problems.
  (To be continued)

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