Understanding the Nikhanama
By Sadia Wali
In matters of civilized behaviour women
have the same rights over men as men have over women” — Al Quran (2:228). Women
are equal to men in common responsibilities and in receiving rewards. On his
authority from Ibn 'Abbas, women are acknowledged as an independent
personality, in possession of human qualities and worthy of spiritual aspirations. Women are neither inferior to nor deviant
from that of their male counterparts. Islamic
law emphasizes the contractual nature of marriage; the Muslim women are
protected in the nikahnama in the matter of matrimonial life.
The nikahnama is
a social contract between the groom and bride and under contract both the
parties have to follow the terms and conditions of the contract. It is
important to know the legalities regarding a marriage contract that is a
‘Nikahnama’.
While watching
the three – minute short film by Sharmeen Obaid-Chinoy, “Know Your Nikahnama”,
I realized the significance of Nikahnama in the matter of matrimonial life.
Consequently,
through my blog I have made effort to provide essential knowledge and
understanding about the nikahnama which girls need to know before signing it.
As mostly girls including me regret not having read this legal document
thoroughly before signing it as we suffered the consequences later.
The videos highlighted important information that the bride should know before she signs this legal document and discussed the rights pertaining to Mehr, the right of divorce (Talaq) and the process of divorce/ khula.
A sound
knowledge of the Nikahnama can actually help the couple understand expectations
and their duties towards one another. It is especially important for the bride
to align each detail with her partner in order to safeguard her position in the
marriage. However, it is a great tragedy that women are put in the dark about
the terms and conditions of the Nikah contract as mostly women sign this
important document without reading it.
Nikahnama is an
official requirement under the Muslim Family Law Ordinance 1961. Once signed,
it needs to be registered with the local Union Council's Registrar under the
same law. Under Shariah Law, a verbal nikah is just as good as a written
one provided the formalities pertaining
to witnesses are fulfilled. The state law requires the Nikahnama provided under
the law to be signed and registered. The Nikahnama is filled by the nikah
registrar or qazi who takes an oath of nikah .Since they don’t have sufficient
knowledge, they don’t bother to explain to the parents of the bride or the bridegroom.
My blog highlights
essential aspects of the nikah form. As you begin to read these clauses, you
will analyze there is completed protection of the women in all matrimonial
matters especially the columns No.13 to 22 are totally in the favor of the
women which are about the dower, dowry articles, maintenance, banning on the
second marriage and as well the delegated powers of the divorce. Generally
these columns are left blank.
The Muslim
Family Law gives complete protection to women. Unfortunately we are unable to
get this advantage as only column No 13 is filled and others are left blank or
crossed due to negligence by the parents of the bride.
Amount of Mehr:
This is clause 13 of the nikahnama.
The Mehr actually acts as a form of economic protection for women, in case of a
divorce as well as a gesture from the man to show seriousness to get into a
serious commitment. It is not obsessed with virginity, as it is payable to both
virgin as well widowed or divorced women who are no longer virgins. Second, the
Mehr does not need to be a high amount. It is a gesture of love, first and
foremost and should be looked upon as such. I have seen many people asking
brides how much Mehr they received.
Clause 14 is
about two types of Mehr, Mehr Moajjal (Prompt) is where the Mehr will be given
as soon as the couple is in seclusion or at the time of the Nikah. Mehr
Muwajjal (Deferred) is when the mehr is provided after a certain time which is
fixed in the contract or at the time of death or at any time the wife demands
for it to be paid. The full amount of Mehr may be divided into prompt and
deferred.
The next column
No. 16 is also about the dower amount that whether any kind of property has
been given to the bride or not if given then gives the details and conditions.
So if we see there are four columns from serial No. 13 to 16 about the dower
amount but hardly one column is filled.
13
|
The
amount of Mahar
|
14
|
The
amount of Mahar Moajjal & the amount of Mahar Mowajjal
|
15
|
Was
any part of the amount of Mahar paid at the time of marriage? If paid, how
much?
|
16
|
If
a property is given in her Mahar or a thereto if given, the detail of the
property, the price of the property fixed among parties should be mentioned.
|
In Pakistan,
before the Nikahnama even reaches the families or the signatories, the Maulvi
Saab has already crossed out clauses 17, 18 and 19 as it is believed that no
couple wants to add any conditions. The conditions of the marriage must be
narrated in clause 17 for the protection of the bride. Column 18 is
whether the groom has given the delegated power of the divorce to the bride or not
if given on what conditions.
The column No.19
is about divorce. This is an important column from the bride’s point of view
and her protection. If conditions are imposed on divorce, then it will not be
easy for the husband to
divorce without any reason. Generally no maintenance documents are prepared at
the time of marriage. Hence, separate document must be prepared and mentioned
in column No .20. Even where the couple is in agreement to delegate the right
to the wife, the clauses are already crossed out.
18
|
Has
the bridegroom given the right of divorce to the bride? If given on what
conditions?
|
19.
|
Is
there any restriction on the right of divorce by the bridegroom?
|
20.
|
Is
there any document prepared of living her life etc. If prepared a brief note
should be mentioned here.
|
21.
|
Does
the bridegroom have another wife also.If he has any,has he obtained
permission vide rules 8,10 of the
Muslim family ordinance of 1961 to have 2nd wife.
|
Clauses 21-22
clearly articulate that the husband may only marry a second woman after getting
permission from the first wife (through a permission certification from the
local Arbitration Council). You can't secretly have more than one wife. Mostly,
these clauses are not filled which is against the rights of the women.
The Pakistan
Jurist indicates that the marriage certificate should have some additional
clauses indicating if the bridegroom is already married, has never married or a
widower names of bridegroom and bride with detail description of his/her
education, profession, property, and monthly income, whether spouse will live
under joint family system, separate or otherwise?
Lawyer and
women’s rights activist Ms. Flavia Agnes emphasizes the need for a standard
Nikahnama. “It is submitted that if a standard Nikahnama is made for all
Muslims to use at the time of solemnization of marriage, it will be an
effective way to protect women against instantaneous and arbitrary triple
talaq. Such a Nikahnama will not violate the essential character of a Muslim
marriage being a contract between two consenting parties.”
According to
sources provided by Aurat Foundation and Provincial Commission on the Status of
Women (PCSW), 51 per cent of marriages have been found to be unregistered or
the respondents had no idea about registration of his or her marriage. Mostly,
non-registration of marriage was being attributed to customary practices. In
Peshawar, more than 50 per cent of women and even many men can’t read their
nikahnama (marriage certificate); 74 per cent women aren’t consulted before the
filling of marriage registration forms, and 40 per cent married women don’t
even know who had filled them.
Kate Vyborny, a
postdoctoral associate from the Duke University writes around 36 to 37percent
of the community in Pakistan rarely inform the bride about the answers on the
marriage certificate. Nearly 60pc of marriage registrars do not discuss the
terms of a divorce with the bride’s family while almost 21percent are advised
not to discuss it.
Women’s rights
activist Rubina Sehgal, is of the view, “No
more than 2 percent of Pakistani women are familiar with their marriage
contracts, which even educated and progressive women don’t view as a binding
legal document, even though that’s what it is. “Women are brought up to believe
that marriage implies submission and obedience and so, when it comes to the
marriage contract, they just sign it.
They forget at that time that they have the right to read it, vet it,
and even suggest changes. At the time of tying the knot, a lot mostly women
sign this important document without reading it.”
Women’s rights activists fiercely defend
a woman’s right to be able to liberate herself from a terrible marriage. According
to a group of women lawyers, woman can achieve equal rights in marriage through
the proper use of the standard Nikahnama. Various sections of the Nikahnama are
removed before the couple gets to see the document. “These sections include a
woman’s right to divorce her husband. Other privileges include restricting a
man’s right to divorce his wife and the opportunity for spouses to impose
conditions on the marriage.”
Mostly
women have insufficient legal awareness about their rights therefore unable to
negotiate for these rights in judicial or non-judicial forum. NGos and government should conduct legal
awareness programs in order to disseminate information to women. Ministry of
Human Rights also aims at launching nationwide awareness campaign to educate
people about significance of women laws.
Representatives
of Rozan Care for Health Legal Aid Society say “Young girls must be taught about
their rights, the right to divorce, the right to financial support during
marriage and post-divorce along with other transparent measures embedded in the
Nikahnama to safeguard and empower their future.”
Advocate Rubina
Brohi, member of the Sindh Human Rights Commission and regional coordinator of
the Aurat Foundation views that a national media campaign through various
mediums of communication is required. Civil society organizations are working
in collaboration with various departments of the Government of Pakistan
regarding creating awareness campaign, policy-making and implementation of
women laws in the country. According to Rubina, the existing nikahnama drafted
in 60s has become obsolete. Now time and trends have changed. Civil
organizations and ministry of women are working to draft a new nikahnama that
include clauses pertaining to health certificate, age of the bridegroom and
information about previous marriage.
Council of
Islamic Ideology (CII) has preliminary drafted a new comprehensive nikahnama
(marriage contract) and Talaqnama (divorce paper) that seek to ensure the due
rights of women. According to the
representatives of CII, the new Nikahnama will clearly enlists women's rights,
including their right to divorce. The language will be simple and easily
understood by general public. Qibla Ayaz, the CII chairman proposed that the new document
will be drafted in
the light of teachings of the Holy Quran and Sunnah that will help to strength
the family system and create awareness in women regarding their legal rights.
The details of national identity cards will be entered in the nikahnama. This
will make the Nikanama more effective in society.
Efforts to
enhance women’s legal literacy is need of the hour. Law enforcement agencies
and women organizations should disseminate knowledge in women of their legal rights
and ensure that all columns in Nikhanama should be filled honestly and
promptly. It will help to save the rights of the women in matrimonial life.
