The Telegraph
Since 1st March, 1999
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Knot without conditions
Winds of change: Muslim women are performing nikahs, as Planning Commission member Sayeda Hamid (centre) recently did in Lucknow, and also insisting on pre-nuptial agreements

When Safura Sheikh, 27, announced that she wanted a few clauses inserted into her nikahnama (marriage contract), her elders gaped incredulously at her. They could not believe that a well brought up Muslim girl like her could want something so unthinkable as a specially tailored pre-nuptial agreement. Her parents tried to get her to change her mind, but Sheikh was adamant. Finally, a lawyer was summoned and both the bride’s and the groom’s families sat together to thrash out the terms of the clauses she wanted put in.

Says Sheikh, “I just wanted to safeguard my rights under Islamic law. I added a clause according to which my husband would have to divorce me and compensate me properly if he ever chose to re-marry. Another clause, Talaaq-i-Tasweej, ensures that I would be able to seek divorce if he failed to take good care of me or ill treated me. And in the event of a divorce, I would get the child’s custody.”

Sheikh, who got married last year, is not alone. Muslim girls are slowly waking up to the idea that they have the option to put in extra clauses in their nikahnama to ensure their future safety.

Niloofar Akhtar, an advocate at a family court in Mumbai, who is also an advisor to the All India Muslim Personal Law Board (AIMPLB), claims that she drafts at least six such nikahnamas a year. Of these, at least four get implemented. Most of these nikahnamas incorporate clauses similar to the ones that Sheikh had insisted upon. “However,” adds Akhtar, “Most people keep quiet about it because they would not like to publicise what is seen in many quarters as behaviour that does not befit good Muslim girls.”

Experts in Muslim personal law — the law that governs all Muslim marriage and divorce in India — say that the rights being included in these nikahnamas are already provided to the wife under Shariat (Islamic law). But in practice, husbands often tend to deny their wives such rights as the right to meher (dower given to the bride by the husband) or the right to seek divorce. “Incorporating such clauses can make these rights socially and legally acceptable. So it’s best to have documents that can be produced to rebut denial, violation and transgression,” says Amjad Ali Sardar, a lawyer at the Calcutta High Court.

Adds Akhtar, “If the woman has the right to divorce and the custody of her children is already given to her in writing in the nikahnama, it becomes a lot easier for her to exercise these rights, if needed. Otherwise, she will get drawn into a protracted legal battle if the husband does not wish to grant her a divorce.”

Incidentally, under Shariat, non-payment of the dower is also a valid ground for divorce. Four years ago, Feroza Patel from Mumbai actually walked out of her marriage because her husband failed to fulfil the terms of her pre-nuptial agreement. She had included a clause in her nikahnama that stipulated that if her husband failed to gift her a decent flat as her deferred meher within six months of marriage, she would have the right to divorce him. The husband defaulted on his promise and Feroza Patel filed for a divorce and ended her marriage.

Though the concept of pre-nuptial agreements is slowly gaining ground among Indian Muslim women, the practice has always been in existence, say experts. Akhtar, who has been working to spread awareness of the rights of Muslim women, says, “If one goes through historical documents one sees that many Muslim queens used to tailor their nikahnamas to their specific needs.”

Kathryn M. Coughlin, president, Global Research Group, Inc., Massachusetts, US, who has been doing research on the Islamic world, says, “We know from extant court records and fatwa collections that well-informed and educated women routinely inserted conditions in their marriage contracts to preserve their rights.” According to her, in the early Islamic period, Ibn Hanbal (founder of the Hanbali school of jurisprudence) held that any conditions agreed upon as part of the marriage contact were valid, as long as the conditions themselves were not unlawful.

In fact, there is more than one narration in the Bukhari Sharif (one of the most important books of Islamic law) indicating that the nikahnamas of all the daughters of the Prophet Mohammad stipulated that their husbands would not take a second wife during their lifetime. But over time, prevailing social conditions and the diktat of the clergy eroded these rights of women.

Naturally, opinion is divided on whether or not today’s Muslim women are doing the right thing by reclaiming these rights. Says Professor Nadeem Hasnain of Lucknow University, “It speaks volumes about women’s empowerment. I would like to put it this way — it’s nice to see Muslim women re-asserting the rights given to them by Prophet Mohammad’s Islam, which had been snatched away by the clergy or Talibaani Islam.”

However, Maulana Khalid Rashid, general secretary of the Islamic Centre of India, Lucknow, maintains that such a trend would not be healthy for society at large. “Marriage is a union of two lives. If a girl enters a relationship with such pre-conceived notions, the chances of the marriage being a success would definitely decrease.”

Counters Akhtar, “A nikahnama is nothing but a contract between two individuals. So why can’t a girl introduce clauses to protect her rights as per Shariat?”

Interestingly, even the All India Muslim Personal Law Board is taking a liberal view on this. Says Maulana Syed Nizamuddin, general secretary of AIMPLB, “Such conditions are not there in the model nikahnama drafted by AIMPLB. But if a couple wants to add some terms that do not violate the spirit of Islamic marriage they can do so.”

Many Muslim women are, of course, enthused by the idea of incorporating clauses in their nikahnama to protect themselves from being ill-treated by the husband or from the fear of the husband taking another wife — something that is allowed under Islam. Ruhi Hussain, 45, a homemaker, says, “I didn’t even read my nikahnama properly before signing it. But now that I know that certain clauses can be inserted to protect one’s rights, I will ensure that my daughter includes these conditions in her nikahnama.”

Echoes Summiya Sarwar, a 23-year-old media professional, “Why not exercise our rights when they are there? I think it’s best to take away the sting before getting stung. I am very sure that I will draft a pre-nuptial agreement before I say ‘qabool hai’.”

Clearly, for many Muslim women, the times they are a-changin’.

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