Sir, We write this memorandum to you on behalf of the All India
Democratic Women’s Association (AIDWA) representing 7.5 million women of all
communities and regions. In particular AIDWA has a substantial membership among
Muslim women and is deeply involved in many of the issues of specific concern to
Muslim women in the economic, social and political spheres. We believe that
there is discrimination against Muslim women by the State reflected even in
government statistics on employment, credit, education, and so on. At the same
time, similar to women in other communities, Muslim women also suffer from the
lack of substantial reform in personal laws applicable to them.
In this context our association has had several rounds of discussions with
the Muslim Personal Law Board officials. You will also recall that our members
had participated in the meeting called by the MPLB on Muslim women’s issues in
April 2001. On that occasion we had submitted a memorandum to you endorsed by
almost all the women present requesting you to initiate certain important
reforms in Muslim Personal Laws. The then chairman of the Board, the (late) Qazi
Mujahidul Islam Qasmi had given us a sympathetic hearing and assured the women
present that the Board would prepare a model nikahnama to bring relief to
Muslim women.
Unfortunately, it has taken four long years for the draft to be prepared. We
have studied the draft now prepared by the MPLB. We would like to express our
deep disappointment with the contents of the draft. Since the draft is to be
ratified in the general body meeting of the Board at a later date, we are taking
this opportunity to bring to your notice certain infirmities in the draft which
we hope will be rectified by you.
A marriage performed under Muslim Personal Law, which recognises marriage as
a contract between two persons, gives the Muslim woman certain rights not
available to other women. She can draw up a nikahnama which guarantees
her rights within the marriage. A model nikahnama must necessarily be
framed in a way to safeguard the welfare and rights of the bride. It is then up
to the groom to accept the conditions. Once the conditions of the nikahnama
are accepted it is binding on both parties. Unfortunately, the model
nikahnama circulated by you does not at all protect the interests of the
bride, nor does it give her the right to put her own conditions for the
marriage. Most Muslim women in our country are not even aware of the fact that
they have the right to frame the nikahnama and impose conditions on their
husbands. This is a very important right that Muslim women have been given which
is, unfortunately, being withheld from them by keeping them in ignorance. The
Muslim Personal Law Board must necessarily educate the community that the woman
under personal law does have the right to frame conditions in the nikahnama.
Unfortunately, instead of making this right of Muslim women central to the
concept of a model nikahnama, the MPLB draft is discriminatory against
women: everything that is favourable to women has been included only as a pious
piece of advice, on the other hand, everything that militates against woman’s
rights has been described as Islamic injunctions.
At the outset we would like to express our strong disagreement with the
directive in the draft that in case of any unresolved dispute between the two
parties, they should appeal to a Shari’ah court. This directive impinges on the
rights of Muslim women to appeal to secular courts on issues of direct concern
to them. Clearly, this cannot be accepted. This also seems to be part of the
long-standing demand of the MPLB for the establishment of Shari’ah courts.
Without going into the demerits of this demand we emphasise that it should not
be included in the nikahnama. In case of an unresolved dispute either
side has the right to go to court as is the right of all Indian citizens.
One of the major issues before Muslim women is that of arbitrary triple
talaq in one sitting. This practice exists only in India. Everywhere else in
the world, including in Islamic States, there are conditions for talaq.
We had expected that the Board would have taken a clear and strong position
against this retrograde practice. However, the wording of the sentence "to avoid
talaq in one sitting" or to "avoid talaq without compulsion" is
far too vague and will not give any relief to women victims of this practice. We
therefore request you to declare that arbitrary triple talaq is
impermissible and is banned. This is essential to protect the rights of women.
We welcome your suggestion in the section on instructions to the bride and
groom that cash, dowry and feast for the baraat should not be demanded
by the groom or his parents. You have stated that it is against Shari’ah and is
a great sin. Perhaps you could add that it is impermissible. Please also think
of ways that those who demand dowry should be punished by the community.
We list some of the other points below:
In the section entitled ‘Instructions to the maulvi performing the
nikah’:
1. It is stated in the MPLB draft that if the couple are both minors or if one
of them is a minor, the guardian’s/guardians’ consent must be obtained. This is
extremely unfortunate since it condones marriage of minors. The Child Marriages
Restraint Act based on the protection of the rights of children must be the
guiding point on this issue.
2. It is stated that the woman should not be the divorcee of the same man,
even mitigating circumstances are not mentioned. This is giving sanction to the
humiliating practice of ‘halala’.
3. The draft states that Shari’ah has permitted second marriage or polygamy
with the condition of all wives being given equal and just treatment. Instead of
discouraging polygamy and putting it in the context when it was first permitted,
the draft thus sanctions polygamy. How can the maulvi know whether the
second or polygamous marriage will not lead to discrimination against the first
wife or that all wives will be given equal and just treatment?
4. In this section, maulvis are asked not to permit certain types of
marriages. However, a marriage of a man with another woman even while his
divorced wife is in iddat is permitted. This is extremely unjust to the
divorced woman and should not be permitted. In any case, instructions to
maulvis cannot and should not form part of the nikahnama, which is
between the husband and wife. If found necessary, the instructions to the
maulvis can be issued separately.
In the section ‘Instructions for the bride and bridegroom’:
We are glad that the MPLB has addressed the issue of violence. However, the
phrasing that "the wife should be treated justly" and that "violence should be
avoided" is again far too vague. It could be interpreted to mean that violence
is permissible but better avoided. There should be a categorical instruction
against violence.
Shockingly, the right of a wife to a divorce is not even mentioned. Even ‘khula’
is omitted in the draft. It would have been better if you had included the right
of talaq-e-tafwid for the wife so that she could demand a divorce if the
husband violated the conditions laid down by her, e.g. fails to maintain her and
their children, takes another wife, etc. There must be a section on the rights
of a wife including the right to divorce. A section on the rights of divorced
women and children, their right to residence, to maintenance, education and
inheritance rights of children should also be included.
In the sections ‘Rights of the husband and wife on each other’:
This section has a series of instructions for the wife – i.e. she cannot visit
anyone without her husband’s permission; she must safeguard her modesty and look
after the children. Even the visits of the wife to her own family are
circumscribed by what is considered "necessary". The wife’s freedom of movement
is curtailed while there are no such restrictions on the husband’s movements.
These sections are heavily weighted against the wife and need to be rewritten
entirely. One of the increasing problems is that of alcoholism and gambling
among men. These should be specifically mentioned and disapproved.
It is mentioned that mehr should be paid at the time of the nikah
in part or in full. If it is paid later then it should be paid in silver or
gold. This again does not guarantee payment of mehr to the wife as it
should but, in fact, provides a loophole for the husband. It should be made
clear that it is incumbent for the husband to pay the full mehr at the
time of marriage.
Conclusion:
Sir, these are a few of the objections and suggestions we have on the MPLB
draft. We would like to point out that in the given situation of the various
levels of discrimination that Muslim women face including being made the targets
of communal forces, it is extremely important for the rights of Muslim women
within the community to be strengthened. It is our belief based on experience
that fundamentalists of all communities misuse religion and so-called religious
sanction to protect their own sectarian and hidebound views which in fact have
no religious sanction and in fact militate against the Constitution of India.
The need for reform in Muslim Personal Law is apparent and much delayed. You are
also aware that when there is little hope within the community for reform,
individual Muslim women have been approaching various courts of law for
redressal of their grievances. We believe that personal law reform that is
initiated from within the community has a lasting effect. We hope that you will
not delay the processes of justice to Muslim women any further. The framing of a
model nikahnama provides you with the opportunity to send a strong
message for personal law reform to the community. We hope you will consider our
views based on the experience we have with working with Muslim women from all
sections across the country and redraft the nikahnama accordingly.