Tolerable Cruelty

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Changes in Muslim model marriage contract may, at last, be seeping in

YOGINDER SIKAND

Illustration: Uzma Mohsin

ATTEMPTS TO address provisions in the Muslim Personal Law that impact harshly on women have inevitably been met with stiff resistance from the ulema or Islamic clerics. This time around, however, when the All India Personal Law Board meets in a week’s time, reforms, including those in the controversial talaq law, will be on the agenda. The Sunni dominated board has announced that an open session will be held to accommodate and understand the views of the community. Stealing a march on the Sunni Board is however the little-known All India Shia Personal Law Board (AISPLB). Set up by a group of Shia Muslim clerics five years ago, the Board recently came out with a model marriage contract or nikahnama. This initiative will potentially impact India’s 20 million Shia Muslims and protect the rights of Shia Muslim women — albeit indirectly.

Divided into two broad sections, the nikahnama outlines the rights and obligations of the bride and the groom, and requires the assent of both. In an obvious move to protect the rights of the wife, the groom promises not to force her ‘to do anything in violation of the shariah’ or cause her ‘embarrassment in society’. Additionally, the groom has to promise never to demand gifts or money from the wife or her family after marriage. And if the woman wants to work anywhere and improve the economic situation of the family, the groom shall not stop her from doing so.

Radical as this is, it is on the tricky issue of divorce, a subject of endless controversy in discussions about Muslim Personal Law, that the model nikahnama offers the woman substantial rights. Thus, for instance, if the husband disappears for two consecutive years and fails to provide for his wife, she has the right to delegated divorce. She has the same right if the husband uses physical force against her or mentally tortures her. She also has the right to ask her husband for separate living arrangements if any of his relatives ‘excessively’ troubles her.

The nikahnama does not deny the husband’s prerogative to arbitrary divorce that the existing Muslim Personal Law allows, but makes it more difficult for the husband by calling for the setting up of an arbitration committee, comprising five members each from the groom and bride’s side, who would be the first point of approach if either of the spouses seeks a divorce. If the committee’s reconciliation efforts fail, only then are the couple given the sanction to divorce.

If the husband disappears for two consecutive years, the wife has the right to delegate divorce

Significantly, the nikahnama guarantees the divorced wife the right to maintenance from her former husband if she has no means of maintaining herself and providing for her necessities until she acquires a means of livelihood. Unlike the Sunni ulema, the Shia nikahnama does not limit the maintenance period to three menstrual cycles. In effect, this clause echoes the controversial Supreme Court judgement in the controversial Shah Bano case in the 1980s, which sought to put Muslim women on par with other Indian women by granting them the same maintenance rights, and which was shot down by the Rajiv Gandhi government in an attempt to appease the ulemas.

The nikahnama also requires the groom to declare his monthly income, educational qualifications, and whether he has any other wife and children. If any of these details are later proven wrong, the wife has the right to ask for divorce. Without a doubt, the AISPLB’S new nikahnama breaks new ground as it addresses some of the glaring shortcomings of India’s Muslim Personal Law. It isn’t complete and does not provide for all the demands of the Muslim women. But a bold attempt nonetheless from the ulema otherwise seen as a bastion of conservatism and patriarchy.

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