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Sunday, Sep 26, 2021
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A Flawed Model

Advocates of reform are sorely disappointed by the AIMPLB's much touted 'model' Nikahnama that hardly meets any of their long-standing demands.

A Flawed Model
A Flawed Model
outlookindia.com
-0001-11-30T00:00:00+05:53

Earlier this month the All-India Muslim Personal Law Board, at its eighteenth annual convention at Bhopal, finally passed what it called its ‘model’ nikahnamah or Muslim marriage contract. Advocates of reform were, expectedly, sorely disappointed that the document hardly met any of their demands. Prepared a team of traditionalist maulvis headed by Khalid Saifullah Rahmani of Hyderabad , the ‘model’ nikahnamah does not concede any substantial ground to the reformists at all, and is clearly loaded against Muslim women.

To be fair, the ‘model’ nikahnamah is not wholly without its merits. Thus, it contains a clause mentioning the amount of mehr paid by the husband to the wife at the time of marriage or payable in future to her. However, neither the main text of the nikahnamah nor the accompanying notes advises the appropriate amount of mehr that ought to be paid, simply suggesting that it be fixed in terms of gold or silver. Detailed guidelines attached to the nikahnamah condemn dowry, call for marriages to be conducted with minimum expense, and exhort the spouses to ‘respect each others feelings’ and ‘relate to each other harmoniously’. At the same time, the nikahnamah does not make any significant concession to advocates of gender justice. The note attached to the document appeals to Muslims to refrain, ‘as far as possible’, from triple talaq in one sitting, but it does not call for a ban on the practice as such. Likewise, the nikahnamah also allows for a polygamous marriage.

The document attached to the nikahnamah explains what the Board envisages as an ideal Muslim marriage. The husband is portrayed as the main decision-maker, and the wife is seen as dependent on and subordinate to him. The husband should undertake, the document says, to provide for his wife and treat her justly. At the same time, the document lays down the various obligations of the wife towards the husband.  The wife ‘must obey her husband in permissible matters’, it states, while it does not apply the same rule to the husband. The wife’s mobility is also made entirely dependent on the wish of the husband. The document insists that the wife must seek the permission of her husband if she wants to go out of the home. Even to visit her parents and her mehram relatives, relatives whom she is forbidden by Islamic law to marry, she must seek his consent, and it is up to the husband to decide if the wife actually needs to undertake such a visit.  

The nikahnamah’s stern patriarchal bias is also evident in its provision for divorce. The note accompanying the nikahnamah places the initiative for the divorce in the hands of the husband, while it appears to see the wife as primarily responsible for forcing her husband to divorce her. Thus, it says, ‘If, God forbid, differences arise between husband and wife, and the husband is dissatisfied with his wife’s behaviour, he must first make her understand, instil the fear of God in her, and, remaining within the limits of the shariah, must adopt appropriate measures’. No mention is made here of the possibility of the wife being dissatisfied with the husband’s behaviour and of this being adequate grounds for divorce. The man’s right to ‘adopt appropriate measures’ while ‘remaining within the limits of the shariah’ is probably deliberately kept vague, for classical Muslim law allows for a man to beat his wife if she is disobedient to him, which the framers of the nikahnamah possibly include under the rubric of ‘appropriate measures’. If after such measures undertaken by the husband towards his recalcitrant wife, the document continues, the situation does not improve, a respected elder from the family or community should be approached to decide on the matter. If even this does not solve the dispute, the couple should approach a ‘certified’ Islamic scholar in a shariah court or dar ul qaza, whose verdict they should accept.

The agreement to approach a dar ul qaza to terminate their marriage is repeated in the iqrarnamah or ‘note of agreement’, which the spouses are required to sign. This seemingly innocuous clause is actually a means to encourage Muslims to resolve their marital disputes through parallel courts manned by traditionalist ‘ulama, rather than through the state courts, which the ‘ulama look upon with considerable suspicion and distaste even though the latter apply Muslim Personal Law in such matters. In fact, in numerous writings and statements, Board leaders have repeatedly insisted that Muslims must refrain from taking their family disputes to state courts, seeing the courts as engaged in what they see as a ‘conspiracy’ against Islam by providing what the traditionalist ‘ulama regard as ‘unacceptable’ interpretations of Muslim Personal Law, some of which provide Muslim women considerably more benefits than what the ‘ulama are willing to concede. The inclusion of the clause that obliges the partners to a marriage to approach a dar ul qaza, instead of a state court, in case of marital problems would undoubtedly work against the interests of the wife, given the extremely patriarchal understanding of Muslim law that the traditionalist ‘ulama of the dar ul qazas uphold in the name of the shariah.

The patriarchal bias of the ‘model’ nikahnamah is equally apparent in precisely what it does not include, in addition to what it does. Thus, it makes no mention of the possibility, that the shariah grants her, of a wife writing into the nikahnamah various conditions to the marriage, such as working outside the home, continuing her education or even being paid for household tasks, although several Muslim women activists have demanded this.  It also remains silent on the method of deferred divorce or tafweez-e talaq, which, again, the shariah provides for, according to which at the time of marriage the husband agrees that the wife can dissolve the marriage if he fails to fulfil certain specified conditions. 

In fact, the Board explicitly concedes that the tafweez-e talaq clause has been deliberately excluded from its ‘model’ nikahnamah despite the demand from many Muslim women for its inclusion, while at the same time it acknowledges that such a clause is fully in accordance with the shariah. In his explanatory note appended to the ‘model’ nikahnamah, Khalid Saifullah Rahmani, head of the Board’s nikahnamah committee, sought to explain this as a pragmatic choice. He claimed that, considering the difficulty of arranging for a husband for a woman, including the tafweez-e talaq clause might actually make a woman’s marriage even more problematic. Mentioning in the nikahnamah the possibility of divorce in the context of tafweez-e talaq at the time of marriage itself would, he claimed, ‘be intolerable and unacceptable to people’. To talk of such things at the time of marriage’, he went on, ‘might disturb the harmonious environment’ and cause ‘mutual mistrust’. Rahmani’s argument was clearly dubious, considering the fact that the iqrarnamah attached to the nikahnamah does mention the possibility of marital discord, including divorce.

Rahmani put forward a similar argument in justifying the Board’s decision not to mention in the nikahnamah what he recognised as the Qur’anic provision that allows a man to marry more than one wife only if he can ensure justice towards all his spouses. Rahmani’s specious excuse for not including this point was that it was the right of the man, and not the qazi or the man’s wives, to decide if he could do justice to his multiple spouses. To add the ‘justice’ clause in the nikahnamah, Rahmani claimed in the Board’s defence, might also give the government an excuse to interfere in Muslim Personal Law and might also provoke the state courts to put forward what he called ‘wrong and unacceptable interpretations’ of the shariah. It thus appears on this and on the tafweez-e talaq issue the Board was guided by the defence of male privilege rather than by a concern for a consistent application of shariah rules.

The Board’s much-touted ‘model’ nikhanamah is thus, as many Muslim women activists would argue, hardly a model to be followed, and nor is it particularly novel or innovative in any substantial way. Needless to say, it reflects a sternly patriarchal understanding of Muslim jurisprudence, and a consistent refusal to even listen to the demands and voices of progressive Muslim groups. Sayyed Muhammad Rabe Hasani Nadvi, the President of the Board, made this point amply clear in his address to the Bhopal convention when he declared that God had made men and women equal in terms of respect but had given males a ‘senior status’ and had assigned women the role of ‘juniors’. Little wonder, then, that growing numbers of Indian Muslim activists simply refuse to accord the Board the status of sole spokesman for the community that it claims for itself, and, instead, are seeking to interpret Islam on their own in their struggle for gender justice.


Yoginder Sikand is the author of Sacred Spaces: Exploring Traditions of Shared Faith in India and Inter-Religious Dialogue and Liberation Theology: Interviews with Indian Theologians and Activists

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