The sacrament of prenups

Maneka Gandhi, minister of women and child development , recently gave a call for pre-nuptial agreements to be recognised in India. According to her, if the terms for division of property, guardianship of children and spousal support are settled prior to marriage, divorces will be less acrimonious and disputes could be resolved expeditiously.

In the discussions that followed, as to whether such a step will, in fact, safeguard the rights of women, there was no mention that this concept is already rooted in Islamic law of marriage since the 7th century. The nikahnama, an Islamic marriage contract is, in fact, a prenuptial agreement that outlines the rights and responsibilities of the parties and provides for conditions to be included for safeguarding a woman’s rights upon marriage.

One wonders why a reference to the Islamic law was not made either by the minister or other experts.

Married Muslim women, we find, are often on a higher and more secure footing than their counterparts from other religions. In fact, as a Christian marrying a Muslim, I chose to marry under the Muslim personal law, even over the seemingly modern Special Marriage Act, 1954, to better secure my economic rights. My mehr was a house in my name and my nikahnama includes necessary clauses to safeguard my and my children’s rights. My husband’s family members were witness to this document, which is registered and enforceable by law.

When we examine marriage laws in their historic context, it is interesting to note that the universally accepted notion that marriages are contractual rather than sacramental originates in Muslim law, which was accepted by the French law only in the 1800s and incorporated into the English law in the 1850s and became part of codified Hindu law as late as 1955. Today it appears to be the most practical way of dealing with the institution of marriage. Treating marriage as a sacrament which binds the parties for life has resulted in some of the most discriminatory practices against women such as sati and denial of right to divorce and remarriage, even in the most adverse conditions.

The cornerstone of a Muslim marriage is consent, ejab-o-qubul (proposal and acceptance) and requires the bride to accept the marriage proposal on her own free will. This freedom to consent (or refuse), which was given to Muslim women 1,400 years ago, is still not available under Hindu law since sacramental rituals such as saptapadi and kanya dan (seven steps round the nuptial fire and gifting of the bride to the groom) still form essential ceremonies of a Hindu marriage. Even after the codification of Hindu law, the notion of consent is not built into the marriage ceremonies.

The contract of marriage (nikahnama) allows for negotiated terms and conditions, it can also include the right to a delegated divorce (talaq-e-tafweez) where the woman is delegated the right to divorce her husband if any of the negotiated terms and conditions are violated.

Mehr is another unique concept of Muslim law meant to safeguard the financial future of the wife. It is an obligation, not a choice, and can be in the form of cash, valuables or securities. While there is no ceiling, a minimum amount to provide her security after marriage must be stipulated. This is a more beneficial concept than streedhan which is given by choice and usually by the natal family. In addition to Mehr, at the time of divorce, a Muslim woman has the right to fair and reasonable settlement, and this is statutorily recognised under the Muslim Women (Protection of Rights on Divorce) Act, 1986 as per the 2001 ruling of the Supreme Court in the Daniel Latifi case.

It is also important to address polygamy and triple talaq, two aspects of Muslim law which are generally used to discredit the community and argue in favour of a uniform civil code. While sharia law permits a man to have four wives (before 1956 Hindu law permitted unrestrained polygamy), it mandates equal treatment of all wives. If a man is not able to meet these conditions, he is not permitted to marry more than one woman. (Quran 4:3; Yusuf Ali’s translation)

On the other hand, though codification introduced monogamy for Hindus, the ground reality has not changed and Hindu men continue to be bigamous or polygamous. The most disturbing aspect is that while men in bigamous/adulterous relationships are allowed to go scot-free, it is the women who are made to pay the price. Women in invalid relationships with Hindu men are denied maintenance and protection and are referred to as “mistresses” and “concubines”, concepts specific to the uncodified Hindu law. Any attempt to codify Muslim law to bring in legal monogamy should not end up subjecting Muslim women to a plight similar to that of a Hindu second wife. This is an important concern which needs to be taken into account while reforming the Muslim law.

And lastly, the much maligned triple talaq or talaq-ul-biddat, which the Prophet himself considered as the most inappropriate form of divorce. Fortunately, in 2002, in Shamim Ara vs State of Uttar Pradesh & others, the Supreme Court laid down strict Quranic injunctions which must be followed at the time of pronouncing talaq, hence now fraudulent practices adopted by errant husbands (including email and SMS talaq) can no longer constitute valid talaq. Yet, after a decade and a half, very few know challenge the validity of such divorces in court as they are unaware about this ruling.

Though Muslim law stipulates many different ways to end a marriage, including a woman’s right to dissolve her marriage (khula), divorce by mutual consent (mubarra), delegated divorce (talaq-e-tafweez), judicial divorce (fasq) and dissolution under Muslim Marriage Act, yet the one that is most often discussed or resorted to is the triple talaq without the consent of the woman, violating the stipulations of the Shamim Ara ruling which has invalidated such hasty divorces.

Many would argue that while Muslim law may be progressive on paper, it is often misused and Muslims women’s rights are violated. But enacting a new law (which can also be violated) each time the legal mandate fails in its implementation, is not a solution to the problem at hand. We need to collectively put our might behind creating awareness about the positive aspects of these laws and, more importantly, help women secure their rights when they are violated.

The writer is the programme director of Majlis, a legal centre that provides socio-legal support to women survivors of violence