India: AIMPLB’s ‘model’ Nikahnamah - neither model nor novel

Yoginder Sikand
The so-called ‘model’ nikahnamah prepared by the All-India Muslim Personal Law Board and released at its recently-held meeting in Bhopal has, predictably, stirred up a hornet’s nest.
As women’s activists have argued, although the nikahnamah does make some positive suggestions to enhance Muslim women’s rights, it does not actually concede much ground, leaving enough loopholes for it to by manipulated by unscrupulous males.
The Board has been discussing the nikahnamah issue for several years now. From its 1999 Mumbai session till its meeting in Bhopal this year the question has been tirelessly debated as the Board has come under mounting criticism for its perceived reluctance to take the problems of Muslim women seriously. That it took several years for the Board, after much discussion and delay, to finally come out with what it calls a ‘model’ nikahnamah, is itself evidence of the lack of seriousness with which its bearded patriarchs view the question of women’s rights. This is also amply attested to in the nikahnamah itself, which, critics note, has not conceded Muslim women the whole gamut of rights that Islam is said to have given them. Furthermore, the Board is careful to point out that its ‘model’ nikahnamah is purely voluntary and, hence no one is under any obligation to accept it. The cover page of the document containing the nikahanamah explicitly mentions that it ‘is not compulsory’. That clarification is, course, is entirely superfluous, since in any case the Board, being a non-governmental organisation, has no legal authority to issue orders or documents binding on anyone, let alone on all Muslims in India, although there is no doubt that it aspires to such powers.

The Board’s ‘model’ nikahnamah is a short document, with six points listed at the beginning, followed by sections for signatures of the parties to the marriage and the witnesses to the ceremony. The six points lay down qualifications for the marriage in terms of the status of the spouses. Those who do not meet these qualifications are forbidden from marrying each other. Interestingly, and despite the demands of women’s groups that polygamy be banned or else restricted, this section of the nikahnamah allows for a man to marry more than one wife. Point three of the original draft of the nikahnamah also explicitly allows for child marriage. It reads : ‘If the would-be spouses or one of them is a minor, the marriage cannot be sealed without the permission of his/her guardian’. Presumably because the authors of the nikahnamah were later informed that child marriages are illegal in India, at least in theory, they later deleted this provision by simply drawing a line over it out in pen so that it still remains visible. While the nikhanamah 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, neither the main text of the nikahnamah nor the accompanying notes advises the appropriate amount of mehr that ought to be paid, simply advising that it be fixed in terms of gold or silver.

The nikahnamah is accompanied by a document providing moral guidelines to the spouses, which both of them undertake to obey. Interestingly, it condemns the custom of demanding dowry by the husband or his family as un-Islamic and as a ‘great sin’. It insists that the marriage be conducted in a simple way, with minimum expense. It evokes the Qur’an to stress that the spouses are ‘garments of each other’, which means, it says, that they should ‘respect each others’ feelings’, ‘tolerate, to the extent possible, their weaknesses’ and ‘relate to each other harmoniously’.

The document then proceeds to elaborate on the rights and duties of the spouses, which are defined in distinctly gendered terms. The obligations of a husband towards his wife, it lays down, include ‘providing her food, clothing, housing and medical treatment according to her standard’, ‘protecting her respect and honour’, ‘not sending her to her natal family against her will’, and ‘behaving in a just way with her and abstaining from all forms of injustice’. In addition to these generally acceptable principles there are others that are clearly loaded against women, reflecting the patriarchal bias ingrained in the tradition of medieval Muslim jurisprudence. It lays down that the wife ‘must obey her husband in permissible matters’, while it does not apply the same principle to the husband. The same holds true in the case of another dictum that insists that the wife must seek the permission of her husband if she wants to go out of the home. Thus, it lays down that the husband will ‘allow his wife to meet her parents and mehram relatives if need be’. No such condition is applied to the man by his wife. This also leaves ample scope for misuse by the husband. It can be interpreted as effectively forbidding women from meeting anyone other than their parents and mehram relatives, that is relatives whom they are forbidden by Islamic law from marrying, thus effectively confining their to their homes, being allowed to step out only on the whim of their husbands. By adding the clause ‘if need be’, with the ‘need’ being decided essentially by the husband, it gives the husband the right to harass or blackmail his wife by refusing to allow her to visit even her parents if he decides there is no compelling ‘need’ for her to do so. Another clause effectively allows the husband to divorce his wife simply by uttering the word ‘talaq’ thrice in one sitting, although this practice is said to be entirely against the Qur’an. Facing considerable opposition for its consistent refusal to ban this obnoxious practice the Board appears to make a concession to its critics by mentioning in the document that divorce should be considered only in an emergency and that ‘as far as possible the practice of giving three talaqs in one sitting must be abstained from’. In this way, it has sought to mollify its critics somewhat but, at the same time, remaining firm in its resolve not to outlaw triple talaq in one sitting.

The document accompanying the nikahnamah concludes with a note on marital conflict. Even here the patriarchal bias is evident, with the initiative or decision for the divorce resting entirely with the husband, and the blame or cause for the divorce being essentially associated with the woman. 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 and ambiguous, 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 document containing these details is followed by a short note, an iqrarnamah or ‘note of acceptance’, in which the spouses testify that they are both Muslims and agree to follow the rules of the shariah in their married lives. They promise to try their best to live together in harmony, and undertake that in case of a dispute between them they would approach a dar ul-qaza or shariah court, which they name, and agree to willingly accept its decision, whatever it may be. 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. It is also a means to strengthen the authority and powers of the ‘ulama. In numerous writings and statements, AIMPLB leaders have appealed to Muslims to resolve their family disputes among themselves, through shariah courts, this being, they insist, an ‘Islamic duty’. They have argued that non-Muslim judges are not capable of judging such disputes in accordance with the shariah. Their advocacy of shariah courts probably reflects their suspicion that state courts might interpret the shariah, in the form of Muslim Personal Law, in a manner that departs from traditional fiqh and grants more rights to women than the ‘ulama are prepared to concede. They have also claimed that state courts might deliberately seek to ‘misinterpret’ the shariah, which they see as part of an alleged ‘conspiracy’ to destroy Muslim identity and absorb the Muslims into the ‘ national mainstream’. At the same time they also point out that shariah courts might be a cheaper and faster mechanism for dispensing justice. In this sense, 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 is likely to work in favour of the husband, given the extremely patriarchal understanding of Muslim law that the traditionalist ‘ulama of the dar ul qazas champion.

In all, then, the nikahnamah hardly concedes anything to the growing demands of Muslim women activists for gender justice. It does not even acknowledge the merits of the gender-just understandings of Islam that these activists have begun articulating in recent years. It does not mention 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. Nor does it allow for the possibility of deferred divorce of 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 has explicitly conceded 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 an explanatory note appended to the ‘model’ nikahnamah, the convenor of the Board’s nikahnamah committee, Khalid Saifullah Rahmani, put forward the specious argument that this was done because, 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. Further, he added, ‘to mention [in the nikahnamah] the possibility of divorce’ in the context of tafweez-e talaq ‘at the time of marriage itself would be intolerable and unacceptable to people’. To talk of such things at the time of marriage’, he went on, ‘might disturb the harmonious environment [of the marriage] and lead to mutual mistrust’. Rahmani’s argument appears particularly dubious considering the fact that the iqrar namah attached to the nikahnamah does mention the possibility of marital discord, including divorce. To claim, as he did, that including the tafweez-e talaq clause in the nikahnamah would be ‘intolerable and unacceptable’ to people just because it refers to divorce, is, therefore, ridiculous.

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 argument 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. This obviously appears to suggest that 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 the full and 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. 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’. This, and numerous other statements and documents of the Board, reflect the fact that the luminaries on the Board show little consideration for the arguments put forward by an emerging generation of Indian Muslim feminists who insist on gender equality being intrinsic to the Qur’an and who argue that the patriarchal interpretations of Islam upheld by the Board and the majority of the male ‘ulama are not to be equated with Islam as such, which, like any other religion, can also be interpreted in women-friendly ways.

That the Board’s ‘model’ nikahnamah fails to incorporate many of the demands of Muslim women’s groups is thus hardly surprising. After all the committee appointed by the Board to draft the nikahnamah comprised male ‘ulama of the traditionalist variety who see the rules of medieval Muslim jurisprudence as normative and binding on all Muslims, and who stiffly oppose the efforts of Muslim reformists to reinterpret the Islamic scriptures in a progressive way. To expect the Board to have come up with a nikahnamah that would satisfy women’s demands, accept the entire range of women’s rights that Islam allows for and embrace the gender-just vision of Islam being articulated by Muslim women activists is thus completely unrealistic. Little wonder, then, that some Muslim women’s groups have publicly rejected the Board’s ‘model’ nikahnamah and have, instead, prepared their own marriage contracts that incorporate the rights that they see Islam as having bestowed women with but which are denied to them by the traditionalist ‘ulama and Muslim organisations such as the Board that claim to represent all the Muslims of India.