All India Democratic Women's Association

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MEMORANDUM ON MODEL NIKAHNAMA

30 January, 2005.

 
   
WE write this memorandum to you on behalf of the All India Democratic Women's Association representing 7.5 million women of all communities and regions. In particular AIDWA has a substantial membership among Muslim women and is deeply involved in many of the issues or specific concern to Muslim women in the economic, social and political spheres. We believe that there is discrimination against Muslim women by the state, reflected even in governmental statistics on employment, credit, education and so on. At the same time similar to women in their communities, Muslim women also suffer from the lack of substantial reform in personal law applicable to them. In this context our association has had several rounds of discussions with the Muslim Personal Law Board off1cials. You will also recall that our members had participated in the meeting called by the MPLB on Muslim women's issues in April 2001. On that occasion we had submitted a memorandum to you endorsed by almost the women present requesting you to initiate certain important reforms in Muslim Personal Laws. The then Chairman of the Board the (late) Qazi Mujahidul Islam Qasmi had given us a sympathetic hearing and assured the women present that the Board would prepare a model nikahnama to bring relief to Muslim women.
 
Unfortunately it has taken four long years for the draft to be prepared. We have studied the draft now prepared by the MPLB. We would like to express our deep disappointment with the contents of the draft. Since the draft is to be ratified in the General Body Meeting or the Board at a later date, we are taking this opportunity to bring to your notice certain infirmities in the draft which we hope will be rectified by you.
A marriage performed under the Muslim Personal Law which recognises marriage as a contract between two persons gives the Muslim woman certain rights not available to other women. She can draw up a nikahnama which guarantees her rights within the marriage. A model nikahnama must necessarily be framed in a way to safeguard the welfare and rights of the bride. It is then up to the groom to accept the conditions. Once the conditions of the nikahnama are accepted it is binding on both parties. Unfortunately the model nikahnama circulated by you does not at all protect the interests of the bride, nor does it give her the right to put her own conditions for the marriage. Most Muslim women in our country are not even aware of the fact that they have the right to frame the nikahnama and impose conditions on their husbands. This is a very important right that Muslim women have, which is, unfortunately, being withheld from them by keeping them in ignorance." The Muslim Personal Law Board must necessarily educate the community that the woman under personal law does have the right to frame conditions in the nikahnama. Unfortunately instead of making this right of Muslim women central to the concept of a model nikahnama, the MPLB draft is discriminatory against women: everything that is favourable to women has been included only as a pious opiece of advice, on the other hand, everything that militates against woman's rights has been described as Islamic injuctions.
At the outset we would like to express our strong disagreement with the directive in the draft in case of any unresolved dispute between the two parties, they should appeal to a Sharia court. This directive impinges on the rights of Muslim women to appeal to secular courts on issues of direct concern to them. Clearly this cannot be accepted. This also seems to be part of the longstanding demand of the MPLB for the establishment of Shari courts. Without going into the demerits of this demand we emphasise that it should not be included in the nikahnama. In case of an unresolved dispute either side has the right to go to court, as is the right of all Indian citizens.
At the outset we would like to express our strong disagreement with the directive in the draft in case of any unresolved dispute between the two parties, they should appeal to a Sharia court. This directive impinges on the rights of Muslim women to appeal to secular courts on issues of direct concern to them. Clearly this cannot be accepted. This also seems to be part of the longstanding demand of the MPLB for the establishment of Shari courts. Without going into the demerits of this demand we emphasise that it should not be included in the nikahnama. In case of an unresolved dispute either side has the right to go to court, as is the right of all Indian citizens.
One of the major issues before Muslim women is that of arbitrary triple talaq in one silting. This practice exists only in India. Everywhere else in the world including in Islamic States there are conditions for talaq. We had expected that the Board would have taken a clear and strong position against this retrograde practice. However the wording of the sentence "to avoid talaq in one sitting" or to "avoid talaq without compulsion" is far too vague and will not give any relief to women victims of this practice. We therefore request you to declare that arbitrary triple talaq is impermissible and is banned. This is essential to protect the rights of women.
We welcome your suggestion in the section on instructions to the bride and groom that cash, dowry and feast for baaraat should not be demanded by the groom or his parents. You have stated that it is against Shariah and is a great sin. Perhaps you could add that it is impermissible. Please also think of ways that those who demand dowry should be punished by the community.

We list some of the other points as below:

In the section: Instructions to the Maulvi performing the Nikah

1. It is stated in the MPLB draft that if the couple are both minors or if one of them is a minor, the guardian's/guardians' consent must be obtained. This is extremely unfortunate since it condones marriage of minors. The Child Marriages Restraint Act based on the protection of the rights of children must be the guiding point on this issue.

2. It is stated that the woman should not be the divorcee of the same man, even mitigating circumstances are not mentioned. This is giving sanction to the humiliating practice or 'halala'.

3. The draft states that Shariah has permitted second marriage or polygamy with the condition of all wives being given equal and just treatment. Instead of discouraging polygamy and putting it in the context when it was first permitted, the draft thus sanctions polygamy. How can the Maulvi know whether the second or polygamous marriage will not lead to discrimination against the first wife or that all wives will be given equal and just treatment?

4. In this section maulvis are asked not to permit certain types of marriages. However a marriage of a man with another woman even while his divorced wife is in iddat is between. This is extremely unjust to the divorced woman and should not be permitted.

In any case instructions to Maulvis cannot and should not form part of the nikahnama which is between the husband and wife. If found necessary the instructions to the maulvis can issued separately.

In the section: Instructions for the bride and bridegroom

We are glad that the MPLB has addressed the issue of violence. However the phrasing that "the wife should be treated justly" and that "violence should be avoided" is again far too vague. It could be interpreted to mean that violence is permissible but better avoided. There should be a categorical instruction against violence.

Shockingly the right of a wife to a divorce is not even mentioned. Even "khula" is omitted in the draft. It would have been better if you had included the right of Talaq Tafwid for the wife so that she could demand a divorce if the husband violated the conditions laid down by he e.g. fails to maintain her and their children, takes another wife etc. There must be a section on the rights of a wife including the right to divorce. A section on the rights of divorced women and children, their right to residence, to maintenance, education and inheritance rights of children should also be included.

In the sections: Rights of the husband and wife on each other

These sections have a series of instructions for the wife, i.e. she cannot visit anyone without her husband's permission; she must safeguard her modesty and look after the children. Even the visits of the wife to her own family are circumscribed by what is considered "necessary." The wife's freedom of movement is curtailed while there are no such restrictions on the husband's movements. These sections are heavily weighted against the wife and need to be rewritten entirely, One of the increasing problems is that of alcoholism and gambling among men. These should be specifically mentioned and disapproved.

It is mentioned that mehr should be paid at the time of the nikah in part or in full. If it is paid later then it should be paid in silver or gold. This again does not guarantee payment or mcher to the wife as it should but, in fact, provides a loophole for the husband. It should be made clear that it is incumbent for the husband to pay the full meher at the time of marriage.

Conclusion

These are a few of the objections and suggestions we have on the MPLB draft. We would like to point out that in the given situation of the various levels of discrimination that Muslim women face including being made the targets of communal forces, it is extremely important for the rights of Muslim women within the community to be strengthened, it is our belief based on experience that fundamentalists of all communities misuse religion and so-called religious sanction to protect their own sectarian and hidebound views which in fact have no religious sanction and in fact militate against the Constitution of India. The need for reform in Muslim Personal Law is apparent and much delayed. You are also aware that when there is little hope within the community for reform, individual Muslim women have been approaching various courts of law for redressal of their grievances. We believe that personal law reform that is initiated from within the community has a lasting effect. We hope that you will not delay the processes of justice to Muslim women any further. The framing of a model nikahnama provides you with the opportunity to send a strong message for personal law reform to the community. We hope you will consider our views based on the experience we have with working with Muslim women from all sections across the country and redraft the nikahnama accordingly.

The delegation included Anwara Mirza, Zarina Khursheed, Maimoona Mollah, Rehana Sayeed, Mariam Dhawale and P K Zainaba.