India's new marriage contract

By Fatima J. Price-Khan

Each religious group in India has the constitutional right to be governed by theocratic personal law in matters concerning family. This has been so since the British colonial era. In addition to common law, religious personal laws were codified to deal with the legal matters of India’s extremely diverse population, though for most religious communities, personal law has undergone a lot of change over time. Historically, the British drafted personal law by consulting scholars from each religious group. Today, the body that sets such legislation for Muslims is the All India Muslim Personal Law Board (AIMPLB), which was established in 1972. The AIMPLB, a traditionalist ulema-oriented group, claims to interpret Islamic personal law in terms of what is mandated by their understanding of Shariat law. Taking the stance that they represent the diverse Muslim population in India regardless of region, sect, gender, or socioeconomic status, the AIMPLB has approved a final draft of what will become a state approved standardized nikahnama, or marriage contract. The new nikahnama has been finalized after four years in the making, and will inform legal decisions with regard to marriage, marital disputes, and divorce, so its contents are of great importance.

AIMPLB initiated the drafting of the nikahnama with the intention of reducing what board members claim is a growing divorce rate among Indian Muslims. South Asia, its ulema having developed its own distinct understanding of Hanafi based family law doctrines, has been one of the only places in the Muslim world where a husband’s utterance of talaq thrice meant that the couple was irrevocably divorced.

There are well known anecdotes and publicized cases about how this understanding of divorce has caused gross abuses of women. For instance, a woman has no right to say whether or not she wishes to remain married, so by using a finite triple talaq, men have unilateral power over a divorce. Also, there have been many cases of women living for years and years with husbands who frequently triple talaq them during arguments, and since a triple talaq is legally and culturally understood to be irrevocable even when uttered in anger or under intoxication, these women suffer mental torment because they perceive themselves to be living in zina, but don’t leave their husbands because of the stigma of being a divorcee. In addition, there have been cases where men have uttered a triple talaq, and without a legal requirement to register the divorce in court, couples have separated with the understanding that a divorce has taken place. However, due to private disputes, some unscrupulous ex-husbands have taken advantage of un-witnessed, unregistered triple talaqs to spite former wives with accusations of adultery once they remarry. In Pakistan and Bangladesh, family ordinance laws have enforced the legal requirement to register a talaq for the past few decades, though abuses still take place due to loopholes in the procedure. Indian Muslim personal law has varied from region to region, and many couples don’t bother to register a divorce legally since their communities understand it to have taken place because of the perceived validity of triple talaq.

Mandated court intervention and registration was not formerly required in many places in India, and is one of the clauses in the AIMPLB’s new nikahnama, so they laud themselves with the claim that their nikahnama will be a great protection for women. Upon closer examination, it is clear that the nearly all male, patriarchal and traditionalist ulema-oriented AIMPLB has really done nothing for the advancement of the protection of women’s rights with its new nikahnama with regards to divorce, as well as other matters. On the contrary, the contract is yet another tool that can easily be used to abuse Muslim women.

Rather than deem triple talaq as illegal, the AIMPLB contract has simply adopted wording which discourages its use as a last resort. Court and community arbitration and intervention is also required for a divorce to take place. This sounds good on paper, but on the ground, it can only be assumed that this will lead to abuses. In other countries that require legal arbitration before a divorce is permitted, men are often supported by patriarchal, misogynistic courts and are allowed to divorce their wives with little or no evidence of ill conduct. Often, a woman’s presence isn’t even necessary in court for the divorce to be accepted. Women seeking divorce in cases when the husband does not want a divorce often have to spend years and years of going back and forth to court while their wishes are denied. In India, since many Muslims rely on patriarchal local community courts (jamaat), it is easy to see how with the new nikahnama, women could be vulnerable to being trapped in unhappy and even abusive marriages when they want a divorce but their husbands don’t.

One glaring problem with the new nikahnama’s stance on divorce is the absence of a clause allowing the woman the right to divorce her husband. Not even the option of a khul divorce, in which a woman achieves a divorce by appealing to court and then repaying her mehr, is included in the contract. Even in neighboring Pakistan, with its extremely misogynistic legal system, women have the option to check a “husband gives wife permission to have the right of divorce” clause in the standard marriage contract. So, the AIMPLB still leaves Indian men with the unilateral power to divorce their wives.

In addition to divorce issues, the standardized nikahnama is riddled with other problems. For example, the new contract requires the presence of parents or guardians during its signing. This helps women (and sometimes men) very little in a place where, due to sociocultural reasons, they are often denied the right to marry a marriage partner of choice. It also potentially opens the door to forced marriages.

The AIMPLB takes a step in the right direction with the new nikahnama’s clause against Hindu style dowry (jahez/dahej: female’s family pays male and male’s family in cash and gifts), which is a notorious means of exploitation and leads to atrocities like dowry deaths even in Muslim communities in South Asia. However, though clauses that hurt women such as the one on divorce are easy to enforce, in reality the dowry clause is difficult to enforce because of social pressures at the time a marriage is taking place. This can be seen by the fact that Indian secular law names dowry exploitation as a punishable act, but dowry exploitation and dowry death is still a substantial problem in the Indian community at large.

Polygamy is permitted by the new contract in some contexts, but once again, how can male-biased courts be sure that a polygamist is treating his wives justly and equally? In our modern context (in India and globally), there is little or no necessity for polygamy. It should either be outlawed or strictly limited. Why does the AIMPLB not take the opportunity to disallow polygamy with all of its potential abuses in the new nikahnama?

The AIMPLB has legally codified men’s and women’s roles within its nikahnama, once again reiterating its patriarchal world view. Women are “owner of household,” and “responsible for looking after domestic affairs” and children, while men are “responsible to earn money and run the family.” In addition, there is a list of instructions for women including provisions that they cannot leave the home without their husbands’ permission, and must “safeguard their modesty.” Note that no such stipulations are issued to husbands.

There are other questionable details in the nikahnama, including loopholes in requirements of payment of the mehr (Islamically required wedding gift from groom to bride), and questions about iddat, the waiting period after a woman is divorced or widowed during which she cannot remarry just in case she is pregnant or the divorced couple reconciles.

Disturbingly, the AIMPLB is interested in propagating what it calls a “Shariat Awakening.” The board’s patriarchal, male dominated understanding of Allah’s divine law, which they deem to be the true Shariat, will inform all aspects of Indian Muslim personal law if they have their way.

Formerly, the AIMPLB had representation from Shia as well as Sunni members, but due to the drafting of the nikahnama, a separate Shia group has broken away because they have not been given equal representation on the Sunni majority board. The issue of the nikahnama has embodied the sidelining of the board’s Shia voice because Shias don’t interpret family laws in the same way as Hanafi Sunnis, and they obviously wouldn’t want to be bound by the clauses in the standardized marriage contract.

The AIMPLB’s authoritative new nikahnama has also sparked the recent formation of the 35 member All India Muslim Women’s Personal Law Board due to the fact that the AIMPLB was completely overlooking women’s rights during the process of drafting the contract. The Muslim Women’s Board made numerous complaints to the AIMPLB about clauses that can be used to the detriment of women, such as a clause permitting child marriage. A senior AIMPLB member is officially quoted as calling the formation of the women’s board “a joke” which they “strongly condemn.” Incidentally, in the finalized draft of the nikahnama, the child marriage clause has been removed.

At present, the new nikahnama has yet to be released in full for public scrutiny despite the criticism it has been receiving. The AIMPLB is giving assurances that they “are fully aware of the social problems of Muslims, especially women.” A highly dubious statement, indeed.

Fatima J. Price-Khan works in education and applied linguistics. She is also an activist and is involved in several development projects. She is currently living in the Middle East with her husband. Originally from Texas, Fatima accepted Islam in her late teens.

Bibliography and Webography:

Women Living Under Muslim Laws, Raj Press, New Delhi. (2003)

AIDWA Submits Memo to Muslim Personal Law Board, Retrieved May 9, 2005, from The All India Democratic Women’s Association

All India Muslim Board Unveils Uniform Marriage Code, Retrieved May 9, 2005, from Islam Online

India’s Muslims Face Up to Rifts, Mukherjee, S., Retrieved May 9, 2005, from BBC News

India: The Board of No Shame, Retrieved May 9, 2005, from Women Living Under Muslim Laws