Nikah, Nikahnama and Talaq: Why understanding it is essential by Rana Safvi
With so much focus on triple talaq one must understand the dynamics of marriage and divorce amongst Indian Muslims, how the position of Indian Muslim women can be secured and why in spite of the rights given by Islam to women, their position is still so insecure.
When Islam came into the world in the 7th century it was the first to give rights to women. I often feel that when it comes to women our patriarchal society turns the phrase
Man proposes God disposes on its head and makes it God proposes man disposes.
The Quran said in repeated verses that men and women had been created from the same womb/soul as mates for each other. Yes, physical strength was talked about but there was no mention of any spiritual superiority of one over the other, each being judged on his/her own merits.
Nikah( the marriage)
Among His Signs is this, that he created for you mates from among yourselves, that they may dwell in tranquility with them, and He has put love and mercy between your (hearts): Verily in that are signs for those who reflect.” [Quran 30:21]
Marriage in Islam is a contract between two equal parties and not a sacred vow that can’t be reversed. However, there are innumerable authentic hadith (sayings) of the Prophet where he says that of all the acts made halal (permissible) the most detestable to Allah is divorce.
For the nikah the permission of the girl is essential which she gives either directly or through her representative (vakeel). We often hear in movies the word, ‘qubool hai’.
As in all contracts there is a contractual document called nikahnama which has to be signed by both the bride and the groom. This is the Islamic version of the now popular pre-nup agreement in the West. It lays down pre-decided conditions between the bride and groom and these can be many.
However, ignorance of their own rights and the patriarchal society we live in has turned these rights topsy turvy and almost the only clause that is put in the nikahnama is the mehr amount.
Mehr is a pre-determined amount which has to be paid by the groom or his father directly to the bride at the time of nikah for her financial security and independence. Sometimes the mehr is deferred and that is stated in the document too but it is compulsory and has to be paid. If for some reason the husband dies before paying the mehr then the wife has the first rights on his estate and her mehr has to be paid from it. It can be in cash or kind. Given the society we live in there is often emotional pressure on the wife to forgive her mehr. This is something which must not be done by any girl.
Marriages are entered into for happiness but there are times when it becomes an unbearable bond and attempts at arbitration and reconciliation have failed, either or both parties may want to get out of it.
A hadith of the prophet says that if divorce becomes inevitable it should be done in an amicable atmosphere and no way one should harbor hate against the other. [Abu Dawud, Sunan, Kitab at-Talaq, 2/255]…
There is an entire chapter in the Quran on how to go about it.
The two methods prescribed in the Quran are :
1.Talaq e Ehasan (preferred): In this the husband pronounces talaq (at a time when she is not menstruating) and thereafter has no physical relationship with his wife for the next three months, giving himself time to think. He can go back to her in these three months and their nikah is valid. If after three months he still feels that their differences are irreconciable he pronounces it again the divorce becomes final and the marriage is dissolved.
2. Talaq e Hasan ( most preferred) : This is the once that the Quran favours where the husband pronounces talaq in a period of wife’s purity ( non menstruation days) and then attempts are made for arbitration and reconciliation between the husband and wife by family and friends. In this three talaqs are pronounced but at an interval of a month each. After two he has the option to go back to his wife and the marriage is valid. If all attempts at reconciliation between the two have failed the third one is the final and marriage is dissolved.
Nowhere in the Quran is permission given to a man to pronounce, talaq talaq, talaq in one go and the divorce becomes final.
This system was started after the death of the Prophet in the Caliphate of Caliph Umar. It was not started on a whim but to protect the rights of women as men had started taking talaq lightly, pronouncing two talaqs and then coming back before the third was over. In that socio-historic context Caliph Umar said that if a man says talaq thrice it becomes binding.
This system of talaq was given the name talaq e biddat ( divorce of wrongful innovation) and was discouraged. Even today only the Hanafi fiqh in India follow the practice. The other 3 fiqhs do not consider it a legal way of giving divorce.
There is a Hadith recorded by Imam Abu Dawud and several others, which quotes an incident when Rukanaibn Abu Yazid said “talaq” to his wife three times on a single occasion. He felt remorse for what he did and went to the Prophet for guidance. The Prophet advised him pronouncing talaq three times at once has no validity and all three are counted as one. The Prophet said, “All three count as only one. If you want, you may revoke it.” Fath al-Bari, 9/275
This is the talaq against which Indian Muslims are fighting while the All India Muslim Personal Law Board is resisting.
Hopefully the fight will be won soon as there is a case pending in the Supreme Court where a woman named Shayara Bano has filed a case againgst instant triple talaq citing that it violates article 25 of the constitution.
Meanwhile let’s see how women can be made more secure in the interim
The rate of talaq amongst Indian Muslims is 0.56 % as per the census of 2011. The occurrence of triple talaq must be a % in that. While it isn’t as if all Muslim women are subjected to or subject to the practice as sometimes made out to be by media and politicians, it is the inhuman way in which it is being done nowadays that is under attack. Why should even a few be tormented by a practice outlawed in 22 Islamic countiries?
Men have started treating it as a joke and send sms, emails, whatsapp, voice messages etc. saying talaq, talaq, talaq and a marriage is deemed dissolved.
How can this be prevented apart from a law:
Very few people especially Muslim women are aware of the clauses that they can insert in the nikahnama.
A model nikahnama should be made and circulated and there should be an insistence by all that this is the one to be used and registered.
In the nikahnama the girl can insert following points:
Talaq e Tafweez : this a right to divorce which is delegated by the husband to the wife, in which she has the right to divorce him. This can be conditional for eg she gets the right in case he remarries or it may be unconditional.
That their marriage can not be dissolved by the pronouncement of instant triple talaq and has to follow the Quranic injunctions of three pronouncements over three months.
That the husband will support the wife’s aspirations and ambitions and right to work.
That the mehr be given instantly or a period specified in case it is deferred.
As mentioned above it is a contractual document and pre decided any clauses agreeable to both parties can be inserted.
Here it is also important to note that unlike the pre-nup which is normally about distribution of property, as per Islam any property owned by the bride before and during marriage is hers alone. Her salary is again hers and the husband has no rights on it. It is his responsibility to run the house and take care of the household expenditure as well as wife’s needs.
This nikahnama should be registered with the local authorities.
There is an urgent need for reforms within Muslims as in many cases they have made a mockery out of Islam.
The need of the hour is ijtehad (independent reasoning) which was the spirit of inquiry which led to Islam’s golden age when scientific discoveries were made and classical literature written. It is the shutting of the doors to ijtehad which has given rise to obscurantist mindsets where progress has stagnated and we are being dragged willy nilly into the dark ages.