Reluctant reform

Published : Jun 03, 2005 00:00 IST

The AIMPLB's model nikahnama fails to promise Muslim women equal rights in marriage and protection from the retrograde practice of triple talaq.


THE much-awaited model nikahnama of the All India Muslim Personal Law Board (AIMPLB), which was expected to give Muslim women more rights in marriage and protect them from the unfair practice of triple talaq (`divorce' said three times in one sitting), has turned out to be a disappointment. It was released in Bhopal on May 1, at the 18th general council meeting of the AIMPLB. The AIMPLB is a body of 400 members representing almost every sect of Islam in India. Essentially created to protect Shariat laws in the country, it has become an influential body with the power to lay down rules for the community.

Significantly, the model nikahnama does not take on the contentious issue of triple talaq. The AIMPLB was expected to take a tough stand on this chauvinistic practice, but instead put out a weak statement saying, "Triple talaq is avoidable." The nikahnama does not provide any safeguards against men leaving their wives without sufficient maintenance. It has completely ignored areas such as marriage of minors and polygamy. Although the model nikahnama does put together some guidelines, its greatest fault is that it makes none of these mandatory.

The model nikahnama is supposed to be a sort of standard marriage contract for the Muslim community. Since most nikahnamas prepared by local qazis or elders gave women a raw deal in cases where the marriage was called off, reformists and women's groups put pressure on the AIMPLB to design a uniform code for marriages in the community and, more important, abolish the practise of triple talaq. The issue was debated for almost a decade and the AIMPLB assured repeatedly that a model nikahnama would be passed. So, when its executive committee promised in December 2004 that it would reform the existing system, Muslim women across the country hoped that finally justice would come their way.

Unfortunately, not only is the model nikahnama completely inadequate, but it has proved that the AIMPLB does not have the courage to take a radically progressive step in favour of women. The model nikahnama is broadly split into three parts: The Nikahnama (marriage contract), the Hidayatnama (guidelines for marriage under Shariat law) and the Qarar (declaration to abide by Shariat law). It essentially provides specific guidelines for a couple on how they should behave in the event of a dispute between them and how the issue should be resolved within Shariat law. Emphasis is placed on using arbitrators and mediators to resolve a discord. Should that fail, the couple must approach the Darul Kaza (a Shariat court). Both parties are discouraged from approaching courts.

The model nikahnama says that the mehr (bride money given at the time of marriage) should be given in tangible assets. But it adds a rider that it would be all right if only half the amount is paid at the time of the marriage. The document denounces dowry. It does not permit a man to marry his wife's sisters or aunts. And should the man want to take a second wife, he ought to secure written consent from his first wife. However, none of this is enforceable. Under the Hidayatnama, the document puts out a set of chauvinistic guidelines for women, including the necessity of a wife to be "obedient" to her husband.

The nikahnama has a few progressive features. For instance, it attempts to put in place a strict method of mediation and arbitration if a couple chooses to divorce. It has fixed a time frame of four months for the arbitrators/mediators to arrive at a decision, thereby not allowing the case to drag on indefinitely. It requires written records of all marriages and their copies to be given to the bride and the groom. These could be proof should there be any dispute over facts. The document makes it mandatory for parents or guardians of couples to be present during the marriage, thereby preventing forced marriages.

OUTRAGED at the AIMPLB's lack of sensitivity and willingness for reform, women's organisations across the country have announced that they will not accept the model nikahnama and will formulate a new one. The All India Women's Muslim Personal Law Board has rejected the model nikahnama in toto. In Mumbai, several women's groups issued a joint statement criticising the nikahnama. The statement said: "The nikahnama released by the AIMPLB is one more proof of their misogyny and confirms the fact that they exist in a time warp with no notions of gender justice or women's equality." The organisations took objection to the following guidelines - that a wife should be "obedient" to her husband, that she required her husband's permission to step out of her marital home, that she should safeguard her "honour" and "respectability" when the "need" arises, and that she should be "allowed" to visit her parents and relatives.

Flavia Agnes, lawyer and founder of Majlis, a legal advocacy programme for women, pointed out that the nikahnama was not "legally binding. It is just a private agreement". "The courts provide enough legal recourse for Muslim divorce. It is a shame that this is not known at all among the majority of women in the community," she said. Muslim women were protected, under the Dissolution of the Muslim Marriage Act, 1939, and the Muslim Women (Protection of Rights on Divorce) Act, 1986, even before their Hindu and Christian counterparts. "There are several cases which have proved that Muslim women will get justice in a court," said Flavia Agnes.

"It is really unfortunate that the AIMPLB discourages people from taking legal recourse. If they endorsed the role of the courts, the issue of triple talaq would be tackled head on," said Flavia Agnes, who was part of a group of activists, academics and scholars in Mumbai that drafted a model nikahnama and presented it to the AIMPLB 10 years ago. Since then the group has been lobbying with the AIMPLB to draft a model nikahnama.

The Mumbai group's nikahnama emphasised the need for the Tawfeez-e-Talaq clause, which gave a woman the right to divorce her husband if he married again without her consent. It stipulated that if the husband violated the nikahnama or pronounced talaq three times in one sitting, he was liable to pay double the mehr. Obviously, this was unacceptable to the AIMPLB. According to Islamic scholar Uzma Naheed, the Tawfeez-e-Talaq right was given to Muslim women 100 years ago and the idea of doubling the mehr is found in the teachings of the Maliki school of jurisprudence (a school of religious law in Sunni Islam). Hence both clauses were very much within the framework of Shariat law and Islam. The group's demand for khoola (the right of a woman to ask for divorce) too was rejected. "It has taken the AIMPLB so long to get a model nikahnama ready. To institute such radical clauses would be asking for too much," said S.Q.R Ilyas, a member of the AIMPLB's executive committee.

Although the AIMPLB seems unwilling to take a hardline position on triple talaq, it addresses the controversial issue - something it had been shying away from for years. The nikahnama says talaq declared in one sitting will not be acknowledged. The document states: "In the event the bridegroom proceeds to divorce the bride, he shall not pronounce talaq thrice consecutively to his wife, and even if he does, it will not be valid and binding upon the bride. The bridegroom agrees that he will pronounce talaq once each at the interval of one month and the divorce will be considered to be valid only if he gives such notes as provided under the tenets of the Holy Koran and provisions of the Mohamedan law to the arbitrators/mediators or Darul Kaza."

"This method of ending a marriage is cruel, inhuman and is responsible for ruining the lives of several thousands of women," said Hasina Khan, an activist with Awaz-e-Niswan, an organisation working with Muslim women. "Women have been divorced on flimsy grounds as the food they made had too much salt in it. The AIMPLB did not consult organisations like us who work at the grass-roots level. If they had, they would have understood the need to stop this practice. What is most saddening is that this practice exists primarily in India. None of the Islamic countries has triple talaq. They in fact condemn it."

An AIMPLB committee member told Frontline that it could not in one blow abolish the triple talaq system. Besides, he said, the issue would get politicised and eventually block the process of reform. The AIMPLB believes the one-sitting declaration of triple talaq will eventually vanish by slowly working on making the community aware of its ills. In fact, it wants to declare a severe punishment for men who adopt the practice, the committee member said. Adding to the AIMPLB's problems are attempts by some sections of Muslims to opt out of it and create their own body. This, in turn, has made it difficult to announce any major decision.

Meanwhile, political groups such as the All India Democratic Women's Association (AIDWA) appreciated the AIMPLB initiative in starting the reform process and for taking a small step in the right direction. The AIMPLB has at least "started the process of discussions, change, codification and reform in Muslim Personal Laws", said an AIDWA statement.

But AIDWA added that the model nikahnama fell short of democratic demands made by reformists. It said it was unfortunate that the AIMPLB had not banned polygamy and not addressed the issue of child marriage.

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