Many women unthinkingly sign Nikaah-nama paper without reading it or knowing their rights. This needs to change.
Author: ANUM REHMAN CHAGANI
Source
Over the course of my life, I’ve signed a lot of things.
Leases, checks, credit card receipts, documents, you name it. And that’s not including all the school slips I forged my mother’s signature on (sorry Mom!).
Documents of all kinds require our unique stamp of approval that lets others know we’re on the same page. By the time we’re adults, signing our name becomes the result of such practiced consistency that we rarely stop to really think about it. Now hold that thought.
Do you think it makes sense to sign a legally binding contract without exhaustively going through the terms within so you know precisely what it entails? When you put it that way, most of us if not all would obviously say no.
“I was fairly young when I got married (24) but even then I knew that I could have the right of divorce delegated to me. I brought it up once but was dismissed and I was too in love to even think about my marriage failing so I chose to just let it go. Apparently asking for my own rights was considered ‘besharmi’,” shared Amna*.
“Big mistake. When my relationship went to s**t, I had to opt for a khula instead, which meant I had to return my nominal mehr. I also lost my claim to any alimony and maintenance. My advice to other women in similar situations? Be smarter than I was and lawyer up.”
And then there’re those who never even knew their rights to begin with — and lived to regret it, like Sana*.
“With my first marriage, I only got to glance at the nikah nama before I signed. I had no idea my in-laws had crossed out certain sections. I became more aware recently when I started reading about the nikah nama form on social media and when my current fiance discussed it with me. Back then, I saw no way out of an abusive marriage and can only thank my lucky stars that he divorced me himself upon the insistence of his second wife, a marriage he contracted without my permission,” she revealed.
Hearing these stories, I have to ask: how is it that the majority of women end up scribbling their names thoughtlessly on one of the most momentous civil contracts they’ll ever agree to without so much as reading it?
And just what is in that nikah nama of yours?
I sat down with some lawyers to find out.
What IS a nikah nama exactly and what does it signify?
The nikah nama is a written document that two Muslim partners entering into a civil union must put their signature on in order to legalise their marriage. Under the Muslim Family Laws Ordinance 1961, it is the legal evidence of said union and lays out the rights and obligations agreed upon the by the bride and groom.
I guess I can’t say I blame women for not knowing; this is what a standard nikah nama looks like:
“When we enter into any civil contract, we read it. That’s the concept we need to promote with the nikah nama, that it’s a contract, you need to read it before you sign it,” explains Amnah Mohasin, a female lawyer.
Essentially, your nikah nama is a civil contract that you enter into, so much so that even the presence of religious clerics at the time of the nikah is not even mandatory but just a cultural norm; your father or any adult Muslim man can officiate the nikah.
“As lawyers, we’re told that when we draft a contract, we must do so keeping in mind how this piece of paper will be interpreted in a court of law. If and when things take a turn for the worst and go south, the parties involved are not going to be just talking amongst themselves. Their case is going to go into arbitration and the court will look at every word, every comma and determine your fate.”
That being said, marriage is a term loosely used and has more cultural or celestial connotations than legal ones. Essentially, your nikah nama is a civil contract that you enter into, so much so that even the presence of religious clerics at the time of the nikah is not even mandatory!
Most of the document from Clause 1 to 12 is straight-forward; it’s like filling out a simple form. You have to note down basic details like names of the parties and lawyers involved, age, address, etc. Common misconceptions about the nikah nama are usually regarding the remaining clauses.
What to know about your right to mehr
Clause 13-16 are all questions relating to your mehr which is a gift given as a gesture of respect to the wife at the time of marriage by the husband and acts as financial protection in the event of a divorce initiated by the woman (more on that later).
It is the legal right of the wife and obligation of the husband; it MUST be paid, even if the wife waives her right to receive it. It can be in the form of cash or kind, anything that has monetary value such as jewellery or land.
English translation of the nikah nama
English translation of the nikah nama
There are two kinds of mehr: prompt (mu’ajjal), which is to be given before consummation of the marriage or at the time of nikkah and deferred (muwajjal), which is given after a certain time period fixed in the contract, at the time of death, divorce or at any point in time the wife wants it as it is payable on demand by law.
“An upper middle class, or even lower middle class woman is not going to be forthcoming about how much mehr she demands or if she even wants any because you know, ‘log kia kahaingay.’ And the women who really could use this protection such as those from rural areas or the working class, they don’t even know their rights. Empowerment comes from education so it’s important that women know what’s in this document,” shares Neel Shahnawaz, an upcoming lawyer and social worker.
“The amount [of mehr] is variable; it ideally should be what the woman reasonably quotes but it can be decided amongst the parties, depending on family tradition or traits of the woman such as social status, physical appearance, how educated she is, etc,” she adds.
I cannot stress this enough: if you don’t exercise your rights, and this is your right, like muscles, they deteriorate.
Your mehr is yours and yours alone; no one can take it away from the bride, your immediate family or any male relatives are not entitled to it. It is wholly and solely the wife’s right. In the haze of love, you don’t think about anything going wrong in the future but this is about being smart.
And while some believe that even if the mehr is not mentioned in the nikah nama, it is an overarching obligation and the law will award it on the demand of the wife, it can’t hurt to have it in writing. It’s better to be safe than sorry!
The clauses you really need to look out for
Clause 17 asks the parties to list down any special conditions they may have, as long as they don’t go against Shariah law and the law of the land, from monthly maintenance, whether the woman will continue working after marriage or even a breakdown of household chores.
It allows the husband and wife to put any conditions they deem necessary for a framework of a successful marriage so it’s baffling to me that this section is more often than not left blank. It gives you the opportunity to more or less make it a prenuptial agreement.
What is the right to divorce and how is it different from a khula?
Clauses 18-19 accommodate right to divorce, the first of which asks whether the husband would like to delegate the right to divorce to his wife and the latter asks if the husband’s right to divorce has been curtailed in any way.
Clearly, divorce by a woman is a right has been given to us by law. However it is not encouraged. Often, these sections are struck out completely, sometimes by the qazi officiating the marriage or by family members because they don’t want to think about the dissolution of the marriage at the auspicious time of its beginning or simply because they deem it unnecessary since a woman always retains her right to a khula if things go awry.
But a khula is conditional and not the same thing as a right to divorce your husband.
Khula is when a woman initiates dissolution of the marriage in court, which she can obtain even without her husband’s consent provided she foregoes her mehr, maintenance and alimony. You have to get a lawyer, prepare a case and then the judge will decide if you will be granted one or not.
When you’re “delegated” the right to divorce, you can simply opt out of the marriage using the same legal procedures as are ordinarily followed by men.
You write up a divorce deed, present it to the Union Council and your spouse and if attempts at reconciliation fail, you are issued a divorce certificate within three months.
Sara Malkani, a High Court lawyer reveals, “To include your right to divorce is extremely crucial because in the event that you want to dissolve your marriage, it will streamline the whole process. The split will take less time and most importantly, you won’t have to give up your mehr.”
“Some moulvis have even refused to officiate the nikah if these sections are crossed out. The process of obtaining a khula is a painful one and women are exploited like you wouldn’t believe. If women were just given the right to divorce to begin with, we could avoid all the ugliness,” adds Sabahat Rizvi, a High Court advocate and activist.
Clause 20-21 include restriction on the man’s right to contract further marriages while still married to his first wife.
This clause states that if a man is already married then under the Muslim Family Law Ordinance 1961, he must show that he has obtained permission from the Union Council to marry another woman. The Union Council in turn requires proof that the permission of the existing wife/wives has been obtained. That being said, even if it is discovered that the first wife had not given her blessing, the second marriage will not be invalidated.
She can however use it as proof to obtain a khula or divorce if she had been given that right. And if the husband has contracted a second marriage without going through the formalities, it’s a criminal offense and is punishable by jail time as well as a fine.
Will what’s quoted in your nikah nama stand in a court of law?
Well, yes and no.
The nikah nama can only do so much; what we really need is better legal security from the law of the land.
“The nikah nama in itself is a very basic contract and while you can make additions and I think there should be more awareness about certain clauses such as the right to divorce and special conditions, all our rights and obligations cannot and should not be outlined in a nikah nama. What we need are stronger laws in place, so that women in such situations get legitimate protection. Our own laws regarding maintenance and marital property fail to do so and are problematic and discriminatory, so adding it in the nikah nama won’t make a difference because enforcing it in court will be a whole other story,” explains Malkani.
“That being said, if you do put down certain conditions and they are not met, it constitutes a breach of contract and you at least have some standing to seek relief from courts.”
Until we move towards more pro-female legislation, the least we can do is be aware of our existing legally-recognised rights. My father always said: “focus on the marriage rather than the wedding.” I think that also demands we be prepared for the worst while hoping and working for the best.
More information: Hindu-Muslim Marriage, Sharia, Muslim-Hindu marriages, Hindu-Muslim lovers’ experiences, Koran on Hindus? Hindu girl-Muslim boy, Marriage & Divorce laws.
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