[It is rather remarkable that the article, reproduced below, does not
make even a fleeting mention of the ongoing nationwide rather
energetic campaign by the Bharatiya Muslim Mahila Andolan (BMMA) for
codification of Muslim personal law, and inter alia, concomitant
banning of polyginy, triple talaq and halala (see:
<http://bmmaindia.blogspot.in/2014/06/bmma-releases-its-draft-of-codified.html>
and <http://bmmaindia.blogspot.in/2014_06_01_archive.html>).
The initiative for a "model nikahnama", in contrast, has for quite a
while remained rather dormant, without any sign of early revival.
The key demands by the BMMA:
· Age of marriage for girls to be minimum 18 and minimum
21 for boys
· Total ban on oral, unilateral and triple divorce
· No to polygamous marriage
· Well-laid out Quran-based procedure, Talaak-e-Ahsan for
a husband to divorce the wife and vice-versa
· Minimum mehr or dower in consonance with the groom's annual income
· Compulsory registration of marriages
· Maintenance support for wife and children during
marriage, separation and divorce
· Rules for custody of children in the event of divorce
based on the principle that mother and father are natural guardians of
the child
· Responsibilities of the Qazis and Arbitrators have also
been laid down]
http://kafila.org/2014/11/17/debating-muslim-law-after-shah-bano-the-model-nikahnama-initiative-suneeta-acharya/
Debating Muslim Law after Shah Bano - the Model Nikahnama Initiative:
Suneetha Achyuta
November 17, 2014
Guest Post by SUNEETHA ACHYUTA, continuing the discussion on Uniform
Civil Code on Kafila.
In popular imagination Muslim women's unequal position in marriage is
symbolized by cases such as Shah Bano or Imrana. It is understood this
is the result of the religion-based Muslim personal law and the rigid
control of women by the community in general and ulema in particular.
Not many are aware that the same religion-based marriage law also
offers tools for changing Muslim women's position in marriage. In the
last ten years, an ordinary document that every Muslim couple signs at
the time of marriage - nikahnama or marriage contract - has assumed
such a role. It has been innovatively used to initiate discussions and
push for changes in the community's thinking about the Muslim women's
position in marriage. In these efforts, a large number of "religious"
and "non-religious" Muslim groups got into a conversation and set off
a consensus-building process on the issue of a Muslim woman's
"entitlements".
This discussion assumes importance in the context of the ongoing
debate on UCC. The debate on the UCC entered a new phase when,
unhappy with the removal of Muslim women from the ambit of S 125 Crpc
that guarantees all divorced women a minimum maintenance and the
promulgation of a separate provision for divorced Muslim women called
Muslim Women's Maintenance Act 1986, many women's groups renewed their
demand for a UCC in 1990. Such a Code, it was hoped, would bring
marital equality to women of all religions. When the Bharatiya Janata
Party hijacked this demand to castigate Muslim men, (as if Hindu men
were free of misogynist and patriarchal behaviour), such a hope was
irretrievably lost. In the post-Babri Masjid demolition period, when
there were pogroms against the Muslim communities, such a law would
have found it impossible to garner support from the Muslims,
especially if it were made by the BJP dominated Parliament. As anyone
familiar with law knows, a consensus is important for law-making so
that it is accepted and followed. But the changed situation of
unparalleled parliamentary dominance of BJP brings newer challenges to
all those working on issues of gender justice in all communities.
Muslim women were caught in this unenviable position since the 1990s -
of having to address their own situation - under-age marriages,
non-payment of mehr, arbitrary talaq, cruelty in marriage, maintenance
after talaq, multiple marriages of men, resistance to women's
employment etc. while taking care that the Muslim men are not vilified
further. What did they do? In 1995, a group of Muslim women in Mumbai,
led by Uzma Naheed, chose the most important but most taken for
granted document in Muslim marriage and decided to propose changes in
it - a new model nikahanama. Nikahnama being a valid legal document,
such changes would have far-reaching consequences.
What is a nikahnama? It is a simple document that contains guidelines
instructing the couple about the spirit in which they should conduct
themselves in marriage, details of gifts exchanged and personal
details as well as obligations of the couple, under the Shariat. Uzma
Naheed et al expanded the guidelines and introduced a little-known
Islamic practice of - additional conditions in the Shariat
obligations. Their model nikahnama stipulated that the husband should
not inflict physical harm nor wrongfully confine the wife nor indulge
in any other inhuman behavior; leave the wife in her natal home for
extended period of time, use abusive language in instances of marital
tiff, should not accept dowry and should not utter triple talaq or
talaq in isolation. In case of differences the couple should try to
resolve them through arbitrators. The new conditions were - that the
husband would need the permission of wife to contract a second
marriage; that in case of talaq or second marriage, mehr (the gift
that husband gives to the wife at the time of marriage, connoting her
worth to him) be doubled; that the mehr would not be 'forgiven' by the
wife; that the wife's due share in husband's property be ensured as
well as her right to reside in matrimonial home in case of divorce.
This was submitted to the All India Muslim Personal Law Board which
was a body of ulema of different firqa - Sunni, Shia, Barelwi,
Deobandi etc. If it got the approval of the Board, then, Muslims of
all persuasions can emulate it.
The AIMPLB, in turn, sent it for discussion to several madrassas in
the country seeking their opinions on the validity of the nikahnama.
54 ulema - students and teachers (of Imarat-e-Sharia of Bihar,
Islamic Fiqha Academy, Delhi, Imarat Sharia Phulwari, Dar ul Ulloom,
Hyderabad, Dar ul Ullom Sabeel-us-Salaam, Hyderabad) included -
submitted their opinions which were then compiled in the form of a
book - Ishtirat Fin Nikah that was published by Islamic Fiqh Academy,
New Delhi. Many of the ulema expressed their unhappiness about the
state of Muslim marriage - the wrong practices of triple talaq, of
Muslim women giving up mehr, and their general state of disempowerment
in the current times.
Is a conditional nikahnama the right way to correct all these ills?
This was the question that they deliberated upon. Traditions of
interpretation drawn from all schools of fiqha - Hanafi, Hanbali,
Shafai and Maliki were used to discuss its validity. Standing out from
among the varied opinions were those of senior and reformist ulema
such as Moulana Saifulla Rahmani and Moulana Mujahidul Islam Qasmi.
They argued that existing Hanafi tradition, most followed in the
subcontinent, should be supplemented by the other traditions such as
Maliki or Hanbali when there is a need. Approving the idea of a
conditional nikahnama, they suggested some minor changes in 1997.
Unfortunately, the Board, mired in its sectarian quarrels, delayed
the release of the approved document till 2005. Its approved nikahnama
deleted the mandatory clauses regarding triple talaq; replaced them
with a simple caution against it and retained clauses regarding mehr
in kind, prohibition on dowry and against violence. But it introduced
something new: a conservative code of conduct for women such as they
should not step out without the permission of the husband etc.
Disagreeing with the Board on the tone, tenor and the content of the
nikahnama, two new Boards, the Muslim Women's Personal Law Board and
Shia Personal Law Board were formed and framed two new nikahnama,
which were released in 2006 and 2008 respectively. The Shia Board's
nikahnama was introduced after its approval from Ayatollah Sistaini of
Iran. Claiming to stress the well-being of women, it incorporated the
provision of khula (women initiated divorce), strictures against
preventing the wife's progress in education and employment, and
provision of alimony to the divorced wife too, the last on the ground
of "humanitarianism."
The Women's Board's nikahnama (in Hindi and Urdu) takes the pedagogic
intent of the nikahnama quite seriously and includes an elaborated
code of conduct for the couple: that the Qazi should be well-versed in
Shariat, explain the nikahnama to them, that marriage should not be
forced, that the marriage of under-age men and women should be avoided
as they lack the knowledge about rights and obligations in marriage,
that the pardoning of mehr should be done willingly by women and not
by deception or wrong interpretation of Quran. It also lays out in
detail a modern husband's proper conduct, including ways in which he
could help with housework. It stipulates proper procedures of giving
and avoiding talaq and khula.
All the Boards, while releasing the nikahnama, asserted that it was
agreed upon by the members, that it would safeguard the interests of
Muslim women, and that it was not obligatory but voluntary on the
community. The differences in the positions come through in the code
of conduct and conditions sections. Except the Muslim Personal Law
Board's nikahnama, the rest clearly stipulate against the triple talaq
and spell out the desirable way of talaq. Nearly all of them encourage
Muslim men and women to resolve their disputes through arbitrators and
Darul Qaza.
At this juncture, we can pause and ask if any of these is implemented
and if so, to what extent. An individual woman's ability to get her
own conditions into the nikahnama or get what is written, existing
research indicates, depends on the social milieu, community ethos and
especially on the history of any re-form movement in that area.
Organizations such as Bharatiya Muslim Mahila Andolan that have come
up to defend Muslim women's rights in the last decade have used their
own gender-just nikahnama in hundreds of marriages that they conduct.
Young Bohra Muslim men in Gujarat have adopted the nikahnama approved
by the Muslim Personal Law Board in their marriages.
Occupying a socio-legal terrain, which distinguishes it from the
largely state-directed initiatives of reforming Muslim Personal Law,
it has also prevented the consolidation of conservative Muslim opinion
against the state, resumed the (contested) conversation among
"religious" and "secular" domains on marriage practices, and even
enabled a continuation of a discussion on "secular" feminists'
concerns such as dowry and destitution of married women due to
desertion. Islamic and secular idioms got inextricably mixed up,
whereby dowry got re-framed as un-Islamic (rather than illegal) and
mehr as the "right" of Muslim women!
The real significance of the nikahnama debate, as such, lies
elsewhere: in the space that Muslim women have carved for themselves
through this initiative and its role in resuming the traffic between
"religious" and "secular" spaces on issues of gender after Shah Bano.
By initiating the nikahnama debate on the grounds of sharia, Muslim
women have been able to enter the male-dominant terrain of the
"religious community" and disrupt the stereotype of Muslim women as
victims of community patriarchy. In pushing the "Islamic" tradition
for reform and succeeding to an extent, they have disrupted the
prevailing secular narrative of the unchanging and regressive Islamic
tradition. Nikahnama has the possibility for extensive reach not only
to popularise correct practices and strictures against bad practices
but also to draw the community (especially elders in the form of
arbitrators, the darul qaza) into such an exercise.
Suneetha Achyuta is at Anveshi Research Centre for Women's Studies, Hyderabad
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