A Flawed Model

Earlierthis month the All-India Muslim Personal Law Board, at its eighteenth annualconvention at Bhopal, finally passed what it called its ‘model’ nikahnamahor Muslim marriage contract. Advocates of reform were, expectedly, sorelydisappointed that the document hardly met any of their demands. Prepared a teamof traditionalist maulvis headed byKhalid Saifullah Rahmani of Hyderabad, the ‘model’ nikahnamahdoes not concede any substantial ground to the reformists at all, and is clearlyloaded against Muslim women.

Tobe fair, the ‘model’ nikahnamahis not wholly without its merits. Thus, it contains a clause mentioning theamount of mehr paid by the husband tothe wife at the time of marriage or payable in future to her. However, neitherthe main text of the nikahnamah northe accompanying notes advises the appropriate amount of mehrthat ought to be paid, simply suggesting that it be fixed in terms of gold orsilver. Detailed guidelines attached to the nikahnamahcondemn dowry, call for marriages to be conducted with minimum expense, andexhort the spouses to ‘respect each others feelings’ and ‘relate to eachother harmoniously’. At the same time, the nikahnamahdoes not make any significant concession to advocates of gender justice. Thenote attached to the document appeals to Muslims to refrain, ‘as far aspossible’, from triple talaq in onesitting, but it does not call for a ban on the practice as such. Likewise, the nikahnamahalso allows for a polygamous marriage.

Thedocument attached to the nikahnamahexplains what the Board envisages as an ideal Muslim marriage. The husband isportrayed as the main decision-maker, and the wife is seen as dependent on andsubordinate to him. The husband should undertake, the document says, to providefor his wife and treat her justly. At the same time, the document lays down thevarious obligations of the wife towards the husband.  Thewife ‘must obey her husband in permissible matters’, it states, while itdoes not apply the same rule to the husband. The wife’s mobility is also madeentirely dependent on the wish of the husband. The document insists that thewife must seek the permission of her husband if she wants to go out of the home.Even to visit her parents and her mehramrelatives, relatives whom she is forbidden by Islamic law to marry, she mustseek his consent, and it is up to the husband to decide if the wife actuallyneeds to undertake such a visit.  

Thenikahnamah’s stern patriarchal biasis also evident in its provision for divorce. The note accompanying the nikahnamahplaces the initiative for the divorce in the hands of the husband, while itappears to see the wife as primarily responsible for forcing her husband todivorce her. Thus, it says, ‘If, God forbid, differences arise between husbandand wife, and the husband is dissatisfied with his wife’s behaviour, he mustfirst make her understand, instil the fear of God in her, and, remaining withinthe limits of the shariah, must adoptappropriate measures’. No mention is made here of the possibility of the wifebeing dissatisfied with the husband’s behaviour and of this being adequategrounds 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 manto beat his wife if she is disobedient to him, which the framers of the nikahnamahpossibly include under the rubric of ‘appropriate measures’. If aftersuch measures undertaken by the husband towards his recalcitrant wife, thedocument continues, the situation does not improve, a respected elder from thefamily or community should be approached to decide on the matter. If even thisdoes not solve the dispute, the couple should approach a ‘certified’ Islamicscholar in a shariah court or darul qaza, whose verdict they should accept.

Theagreement to approach a dar ul qazato terminate their marriage is repeated in the iqrarnamahor ‘note of agreement’, which the spouses are required to sign. Thisseemingly innocuous clause is actually a means to encourage Muslims to resolvetheir marital disputes through parallel courts manned by traditionalist ‘ulama,rather than through the state courts, which the ‘ulamalook upon with considerable suspicion and distaste even though the latter applyMuslim Personal Law in such matters. In fact, in numerous writings andstatements, Board leaders have repeatedly insisted that Muslims must refrainfrom taking their family disputes to state courts, seeing the courts as engagedin what they see as a ‘conspiracy’ against Islam by providing what thetraditionalist ‘ulama regard as ‘unacceptable’ interpretations of MuslimPersonal Law, some of which provide Muslim women considerably more benefits thanwhat the ‘ulama are willing toconcede. The inclusion of the clause that obliges the partners to a marriage toapproach a dar ul qaza, instead of astate court, in case of marital problems would undoubtedly work against theinterests of the wife, given the extremely patriarchal understanding of Muslimlaw that the traditionalist ‘ulamaof the dar ul qazas uphold in thename of the shariah.

Thepatriarchal bias of the ‘model’ nikahnamahis equally apparent in precisely what it does not include, in addition to whatit does. Thus, it makes no mention of the possibility, that the shariahgrants her, of a wife writing into the nikahnamahvarious conditions to the marriage, such as working outside the home, continuingher education or even being paid for household tasks, although several Muslimwomen activists have demanded this.  Italso remains silent on the method of deferred divorce or tafweez-etalaq, which, again, the shariahprovides for, according to which at the time of marriage the husband agrees thatthe wife can dissolve the marriage if he fails to fulfil certain specifiedconditions. 

In fact, the Board explicitly concedes that the tafweez-etalaq clause has been deliberately excluded from its ‘model’ nikahnamahdespite the demand from many Muslim women for its inclusion, while at the sametime 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 nikahnamahcommittee, sought to explain this as a pragmatic choice. He claimed that,considering the difficulty of arranging for a husband for a woman, including thetafweez-e talaq clause might actuallymake a woman’s marriage even more problematic. Mentioning in the nikahnamahthe possibility of divorce in the context of tafweez-etalaq at the time of marriage itself would, he claimed, ‘be intolerableand unacceptable to people’. To talk of such things at the time ofmarriage’, he went on, ‘might disturb the harmonious environment’ andcause ‘mutual mistrust’. Rahmani’s argument was clearly dubious,considering the fact that the iqrarnamahattached to the nikahnamah doesmention the possibility of marital discord, including divorce.

Rahmaniput forward a similar argument in justifying the Board’s decision not tomention in the nikahnamah what herecognised as the Qur’anic provision that allows a man to marry more than onewife only if he can ensure justice towards all his spouses. Rahmani’s speciousexcuse for not including this point was that it was the right of the man, andnot the qazi or the man’s wives, todecide if he could do justice to his multiple spouses. To add the ‘justice’clause in the nikahnamah, Rahmaniclaimed in the Board’s defence, might also give the government an excuse tointerfere in Muslim Personal Law and might also provoke the state courts to putforward what he called ‘wrong and unacceptable interpretations’ of the shariah.It thus appears on this and on the tafweez-etalaq issue the Board was guided by the defence of male privilege ratherthan by a concern for a consistent application of shariahrules.

TheBoard’s much-touted ‘model’ nikhanamahis thus, as many Muslim women activists would argue, hardly a model to befollowed, and nor is it particularly novel or innovative in any substantial way.Needless to say, it reflects a sternly patriarchal understanding of Muslimjurisprudence, and a consistent refusal to even listen to the demands and voicesof progressive Muslim groups. Sayyed Muhammad Rabe Hasani Nadvi, the Presidentof the Board, made this point amply clear in his address to the Bhopalconvention when he declared that God had made men and women equal in terms ofrespect but had given males a ‘senior status’ and had assigned women therole of ‘juniors’. Little wonder, then, that growing numbers of IndianMuslim activists simply refuse to accord the Board the status of sole spokesmanfor the community that it claims for itself, and, instead, are seeking tointerpret 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 andInter-Religious Dialogue and Liberation Theology: Interviews with Indian Theologians and Activists