Indian Muslim women deserve congratulations for their new marriage code
Our experience with ulema is not very encouraging. I am certain that if someone were to go to the ulema, at least in Phulwari Sharif, Patna, of which I have some experience, and say I dreamt of having divorced my wife thrice in one go, they would say that he is now divorced and if he wants to live with his wife now he should hand over his wife to an aalim or someone else for the dastardly practice of halala. I know of a case where a woman had been divorced during pregnancy and though there is a provision in Islamic law that such a divorce should not take effect unless the husband were to feel the same way and repeat his pronouncement even after the birth of the child, the ulema pronounced divorce as legal as per their habit. The practice of ulema’s ruling in the case of Muslim family dispute is indeed quite ridiculous. Their fatwas could indeed be termed hilarious, if they were not so dangerous. In fact any one with a modicum of sense of humour who wants to have a good laugh can do nothing better than sit down with a voluminous book of fatwas pronounced by ulema on a variety of subjects, ranging from the ludicrous - whether one should put one’s left or right foot forward first while going to the loo – to the relevant disputes in family lives that can rebuild or destroy people’s lives.
I do not have a copy of the new or old nikahnama and cannot form a very well-informed opinion in the matter. But from the reports in the media, the new one looks quite formidable and commendable and need of the hour.
The following points have been made in media reports. I am citing them below to keep them on record:
Daring the ulema and orthodox Muslims, the All
Personal Law Board in its "Shariat Nikahnama" released on Sunday, March 16, 2008, has come up with a host of measures that ensures that Muslim women get their right. Not only does it recognise the right of women to seek divorce (khhula) and separation, it ensures financial settlement with an eye to the welfare of the woman and her children, advises registration of marriages and forbids forceful marriages.
The new code also rejects talaq through SMS, e-mail, phone and video conferencing. Talaq on provocation will not be considered either.
According to it, talaq to be valid should be spread over three months to give the couple ample time to reconsider the issue. "We are not scared of the mullah, but the Allah," said Shaista Amber, chairperson of the AIMWPLB. "The mullahs will never come to the rescue of destitute women. Why should the Muslim woman be scared to seek khhula when this right has been provided to her by the Allah?"
The new Nikahnama has a 17-point Hidayatnama (guidlines for marriage under the Shariat law for bride and groom) and an 8-point section on the process of talaq. The Hidayatnama declares that any forceful nikah is not acceptable. Forceful dowry has also been forbidden. Amber said the new "Shariat Nikahnama" was very different from the model Nikahnama of the All
"The model Nikahnama had not taken care of the women's rights as per the Koran. The new Nikahnama maintains the equilibrium," she said. While the model Nikahnama is in Urdu, Shariat Nikahnama is available both in Hindi and Urdu so it reaches more people. Ms. Amber said it had been prepared in Urdu and Hindi so that the common people could understand the “rights and responsibilities of the husband and wife.” She said it had “three forms of which one is for registration of the ‘nikah’ at the Registrar of Marriages. The other two are for the Qazi, who solemnises the marriage, and for the bride and the groom.”
"The woman has full authority to seek khhula under Shariat law, from her husband if the husband harasses her and her children," said Amber.
She claimed that the “Shariat nikahnama” was better in many ways as “its language is easy and it contains the rights of women.” “In the old ‘nikahnama,’ there is no provision for address verification; registration of marriages has not been made compulsory and the rights of women have not been clearly laid down. Besides, it is in Urdu and everyone cannot understand it properly,” Ms. Amber said.
The woman must approach the Darul Kaza (a Shariat court) for seeking divorce under khhula. In case of talaq, all gifts received during the marriage and afterwards will be the property of the bride. In absence of a divorce, the Nikahnama says any woman can go for separation if the husband is missing for four years, has an illicit relationship with another woman or refused to disclose HIV status before or after marriage. Besides, issues like not providing food, clothes and other essentials will also be counted as grounds for separation. In case of separation, the woman has the right to mehar.
To avoid controversy, the new Nikahnama also rules that three forms should be filled in during nikah - one each for the marriage bureau, the bride and groom and the quazi. Muslim women had criticised the model Nikahnama of the AIMPLB, released in 2005, saying it failed to address the contentious issue of "triple talaq".
Unveiling the new Muslim Marriage Act drafted by a 30-member executive body, AIMWPLB chairperson Shaista Amber told a news conference in
Senior AIMPLB member Maulana Khalid Rasheed Firangimahali termed the new nikahnama useless and irrelevant. He said “already there is a nikahnama issued by the AIMPLB, there is no room for another one.” He said the old one was as per the Koran and Shariat and was in practice. On the compulsory registration of the Muslim marriages, he told PTI that the Board had already made it clear that it would support this only when some conditions were fulfilled. “We have said marriages should not be held invalid in the absence of registration. Besides, the ulema solemnising the marriages could be given the powers of the registrar of marriages for the purpose of registration,” Maulana Firangimahali said.
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7:15 AM
Sultan Shahin
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When doing a research paper for McGill University I found following examples of the ludicrous reactions of the Indian Ulema to the question of triple talaq. The following representative examples are from Fatawa Dar al-Ulum Deoband , Volume IX , as quoted by Arun Shourie in the book, The World of Fatwas.
Case 31: A man was married at the age of nine. He lived with the women but in his swing for renunciation and solitude, he divorced her. The woman has no defect, nor is her honor in doubt. Is the man at faulty or not? How will his renunciation be affected by the divorce? What is the law regarding divorce through a letter and when one is in solitude, that is, without witnesses?
Fatwa: there is no fault even if the divorce has been declared without any reason, although it is not good to divorce without reason. It is said in Durr-ul-Mukhtar….and on this Shami has written… so let it be known that in the above mentioned case if the husband has become major and given divorce, his wife stands divorced. The giver of divorce has committed no fault. His renunciation will not be affected by it. Divorce can become effective through a letter as well. It becomes effective if declared in a state of solitude (i.e., without witnesses) provided no one except the husband knows it (p.50).
Case 30: A man quarreled with his wife and said, “I give you a hundred divorces.” Now the man says that he said so in a fit of anger, and had no such intention. Has the divorced become effective?
Fatwa: The Shariah does not take account of intention in divorce. Divorce becomes effective in spite of intention. It takes effect in case of anger as well. In fact it is obvious that in most cases anger is the cause of declaring divorce. The law givers have said so (p.49).
Case 174: Zaid said angrily to his wife, “one talaq, three talaqs, five talaqs.” Now he says he had lost his wits due to rage, and did not know what he was doing. What does the Shariah say in this case? Has the divorce taken place?
Fatwa: Zaid’s wife stands divorced. Divorce is generally declared due to anger. And the legalists have accepted divorce due to anger… Zaid cannot remarry her without the proper procedure (p.135-36).
Even though drinking is forbidden in Islamic Law, triple talaq affected in a drunken state is considered valid by the Indian Ulema.
Case 65: The qazi made Zaid marry when the latter was drunk. After two years, he gave three divorces before a gathering in a state of intoxication. After the intoxication was gone, he was very sorry, and did taubah (repent). Is it legitimate for the couple to get married again?
Fatwa: If a husband divorces his wife in a state of drunkenness, the divorce becomes effective…. So if the husband has divorced her thrice, he cannot marry her again except as provided by law (p.69).
Case 152: A man in a state of drunkenness addressed his wife by her name and divorced her thrice. But the man does not remember having done so. Only the woman says he said so to her, and there is no other witness. Does the divorce take place in this case?
Fatwa: Divorce declared in a state of drunkenness does become effective according to law. In the present case when she (the wife) confirms it and the man does not deny, the divorce has become effective. They cannot remain together unless they remarry according to law (p.123).
Case 50: I left my betrothed and married elsewhere. But in spite of this, my betrothed kept on waiting for me. Eventually, on people’s persuasion, marriage preparations were made. But at the last minute he (the betrothed’s father) insisted that I divorce the first wife. I was very sad and refused to do so. One day a Maulwi advised me to write the divorce on appear so that they would be silenced. Thus time would be gained, he said, and divorce does not become effective by mere writing unless it is uttered by mouth. I believed the Maulwi’s word that mere writing does not effect divorce. So the Maulwi dictated and I wrote it down. Three divorces as well as the name of the wife were written. Has the divorce become effective in this case?
Fatwa: The divorce becomes effective by writing, just as it does by speaking… that Maulwi has deceived you. The hadis says that divorce becomes effective even if it is uttered in fun and jest. According to the Shariah it becomes effective even if there is no intention (to divorce the wife) (p.61).
Case 746, Volume 10: A man became angry in the night. He said that if she (the wife) touched his body form that day onwards, she would stand divorced. The wife lost her wits, caught hold of her husband’s hand, and pleaded for forgiveness. The husband’s utterance is limited to daytime. And he has no intention to divorce his wife. Has the divorce become effective?
Fatwa: Intention does not count in the law laid down by the Shariah. And in a case like this “day” means the time when he said the words. So the divorce is effective. He cannot remarry his wife except through halalah. (p.115-16).
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