By Erica Lee Nelson, Photographs by Sebastian John
A Muslim women’s religious group in India has finally released its model nikahnama, which is a marriage contract set in Islamic religious law.
The interesting thing about the nikahnama is that you can write in it any terms you wish, as its supposed to be a very personal document. Unfortunately, some women are not educated or empowered enough to ask for equal terms in the contract.
This is where the “model” contract, endorsed by the women’s group, comes in.
You can read the full article here — Quickie divorce banned, Muslim women empowered
I wrote about this, and the strange quirk of law that allows ‘instant divorce,’ for The Washington Times in 2006.
NEW DELHI — In the murky waters of India ’s Islamic personal law codes, a man can divorce his wife over email, or in another city without her knowledge. By simply saying ‘talaq’ (the Arabic word for divorce) three times, he can end his marriage in seconds and kick his wife out the very same day.
With such an easy mode of delivery, divorce can also happen accidentally, like in Aftab Ansari’s case. After a nasty marital fight, Mr. Ansari muttered the word three times in his sleep, unknowingly. A waking nightmare was soon to follow.
Mr. Ansari’s wife, Sohela, heard what was said. Knowing that he didn’t actually divorce her, yet disturbed nonetheless, she told a friend about it the next day. People gossiped about it in their small village, and the matter reached some local Islamic religious leaders. They decreed that divorce had taken place and they attempted to separate the couple by force, even though both husband and wife wished to remain together. When they defied the ruling, threats were received.
The Ansari case is an extreme example of the tension building in India ’s pluralistic democracy over a delicate issue – where does freedom of religion end and the rule of law begin? Having given Muslims the right to follow their own personal religious laws in the Shariat Application Act of 1937 (including polygamy and triple talaq), India ’s courts are now rethinking the stand. Meanwhile, within the community itself, Muslim women are educating themselves and beginning to demand their rights in the face of a grudging religious establishment.
Legal Tangles
Last year, the Supreme Court of India ordered that the Islamic court system, known as Dar-ul Qazas, be examined and possibly dismantled in response to a public interest litigation that claims the courts are subverting the judicial system. The complaint and ongoing inquiry emerged after a village-based Islamic court created a national furor over a ruling in a rape case. They contended that a woman who was allegedly raped by her father-in-law had effectively divorced her husband by having relations with another man, and, therefore, had to marry her rapist. The most powerful Islamic law organization in the country, the All India Muslim Personal Law Board (AIMPLB), supported the decision and even alleged that the woman lied about being raped.
The AIMPLB technically has no legal standing and is simply supposed to advise people on Quranic law. In practice, though, since it runs most of the Dar-ul Qazas, its decisions hold huge sway. Hiring lawyers and waiting years for a case to be heard is often out the question for poor Muslims, and the Dar-ul Qazas are a cheap, fast option for justice.
And in poor and remote places, there are no organized courts at all — the judge and jury is usually the local cleric or village council, who may or may not be properly educated in either the Quran or the Indian constitution. The state and its systems are so distant from these villagers, and the community around them so cloistered, the verdicts handed out in the local mosques must be followed.
Such was the Ansari case. Not accepting the judgement and fearing the wrath of religious leaders and their fellow villagers, they fled town and took shelter in the state – they had their marriage legally registered in court.
Fastest Divorce in the World
India is the only country in the world where the triple talaq divorce is legally accepted, even though more hardline Islamic countries have abolished it. Why? The Quran specifically states that a waiting period of one month is required between each “talaq” utterance – allowing tempers to cool and consequences to be considered. Yet in the 1800s, a British colonial court ruled in favor of giving triple talaq all at once without the wife being present. The ruling somehow stuck, even after India gained Independence in 1947.
“This has become the tradition. Yet how much did the [colonial] council understand Islamic law? That is a big question mark,” says Bombay High Court advocate Nilofar Akhtar, who specializes in family law.
Islamic marriage is solemnized with the signing of a nikahnama, a marriage contract proscribed the Quran. A version of a nikahnama is put out by various Muslim law boards, which is meant to serve as a model for those drawing up their own.
When the AIMPLB drew up a model nikahanama earlier this year, women’s groups were outraged. They had lobbied for years to get a clause revoking the right to immediate triple talaq, to make the payment of alimony mandatory and to give women the right to divorce. None of these are included in the document, it just states that triple talaq is to be avoided “at all costs unless the circumstances become highly compelling.”
Mrs. Akhtar and other advocates made another version of a model nikahnama, one much more liberal than the AIMPLB’s. “Anyone can draw it up… It is actually a personal document in which you can put numerous stipulations. There is a great difference between the AIMPLB’s nikahnama and mine.”
In a nikahnama, a bride can demand larger mehr (a kind dowry that is given to her by her husband) and even the right to divorce. However, most Muslim women in India are completely unaware of these rights. But thanks to a new initiative from IFES, a Washington DC-based non profit, that’s slowly changing.
Pockets of Hope
In a house behind the Sufi shrine in Ajmer , Rajasthan, 50 Muslim women are learning about their Quranic and constitutional rights. K.D. Khan, a local lawyer who once ran the famous shrine, beseeches the women to make sure their daughters approve of the man they will marry and write her nikahnama so that she can divorce and get alimony.
“Why aren’t women allowed to give talaq?,” he asks the crowd, “they are allowed to get married, aren’t they?” They titter, young girls and old women whispering among themselves, their children watching from the staircase.
Mrs. Shagufta Khan, the coordinator of the program in Rajasthan, says, “These programs are in great demand because few women know these laws and many are illiterate and have not read the Quran.” Many participants in other areas didn’t even know the constitution existed.
IFES has conducted over 70 such sessions in Rajasthan and the southern state of Karnataka. And they’re not just for women – IFES has also run many successful information camps for men and Islamic religious judges.
How did they deal with opposition? IFES contacts all orthodox groups and clergy in the area beforehand and gives them a syllabus of what will be taught. Also, they hire activists who are known to the community. Since nearly all that is taught can be found in the Quran or the Indian consitution, it’s hard for critics to gain much ground.
But program director Mrs. Suraiya Tabbassum knows that she can’t push too far. “They are deep rooted in that system, they can’t change overnight,” she says. Touchy topics like polygamy are often avoided in the interest of keeping the peace.
Change may be slow but Mrs. Tabbassum sees it happening. “I forsee the triple talaq will be out in the near future. Everyone is shouting about that.” In a survey she conducted among India ’s Muslim communities, the majority of male and female respondents felt that the system of triple talaq could not be justified.
Other measures of equality have already come. Once told that they had the right to ask for the dowry of mehr written into their marriage contracts, many women participants went back that same night and asked their husbands for it. Most got jewellery, and some even cash. Mrs. Tabbassum told the story of one woman who examined her marriage contract to find she had been promised only two cents as mehr. Not to be deterred, she asked for it anyways, and bought herself a cup of tea.
