About to say ‘I do’? Before taking the plunge, you need to carefully read and consider using certain clauses of the nikahnama that are put there to safeguard your interests....
About to say ‘I do’? Before taking the plunge, you need to carefully read and consider using certain clauses of the nikahnama that are put there to safeguard your interests.... You talks to Amar Abbasi, a young barrister, to clarify certain myths and misconceptions governing the most important contract in a person’s life - the nikahnama...
Kulsoom’s* parents did not want their daughter to marry Ahmed*, as their sects were different. They warned her about the problems related to different sect marriages, but isn’t love supposed to be deaf and blind? Kulsoom ignored her parents’ counsel and, married Ahmed. Only friends were present to support the two lovers at the nikah, which was held at the house of a friend of Ahmed’s.
Fast forward 12 years. Kulsoom and Ahmed cannot stand each other. Both want their children to follow and adhere to their sect. Kulsoom wants a divorce, but Ahmed has refused to set her free. Kulsoom does not want khula as she will have to forego her Haq Mehr. Only if Kulsoom had read her nikahnama thoroughly and insisted upon having some safeguards to protect her interests, she wouldn’t be facing all these problems.
This is just one example. But the fact is that many people ignore the most important contract of their lives - the nikahnama. Before taking the plunge, it is imperative that one carefully reads and considers using certain clauses of the nikahnama that are put there to safeguard one’s -especially women’s - interests. In this regard, You! talks to barrister Amar Abbasi. She is a Barrister-at-Law from the Honorable Society of Lincolns’ Inn, having read law at The University of Manchester and currently serving as Legal Counsel with a leading multinational company.
According to Abbasi, filling a nikahnama is not a formality. “Usually what happens is that the nikahnama is produced at the time of nikah and the bride and groom are simply expected to sign and seal their fate, without reading this very important document. A documented nikahnama is essentially a registration certificate to retain a record of the nikah i.e., marriage. Unfortunately, in Pakistan people do not realize that local Union Councils and Nikah Registrars will provide a standard format of the nikahnama which, as with every other contract, can be tailored and amended to the mutual consent of both parties, i.e. the bride and the groom,” she says.
“A copy of the nikahnama can be obtained much in advance of the actual nikah, so it can be filled in advance and discussed between the parties. Producing the nikahnama at the time of nikah is merely a cultural custom, which inevitably deprives the bride and groom The opportunity to voice their concerns and request their amendments to the document. Both, brides and grooms, should insist on the creation of the document or a draft document in advance and take the time to thoroughly read through the same. Essentially, these are the only two persons who will be bound by the terms and conditions of these agreements,” adds Abbasi.
Moreover, it is very important that both the bride and groom should take the time to read the nikahnama. “It is a contract that binds the man and woman as husband and wife, subject to certain conditions and rights over each other. As this document can be tailored to individual situations and needs, it is crucial to read it and ensure that one’s rights or desires are protected therein,” she emphasizes.
Mostly we have observed that certain sections of the nikahnama are crossed out. But the questions that arise are, why it is done and by whom? “This is a subjective question, and the answer may vary from case to case. However for the most part, sections of the nikahnama in Pakistan are crossed out by the men of the family and/or the maulvi/Imam/religious scholar conducting the nikah. More often than not, such nullification of certain sections of the nikahnama strengthens the rights of the groom in the marriage and weakens those designated to the bride. In today’s day and age, it is crucial that women actively start engaging in the process of creation of the nikahnama by their families. Walis, as guardians, and families must acknowledge that the protection of the female’s rights in marriage may result in more happy, sustainable, and secure marriages,” explains Abbasi.
When asked regarding the clauses that provide protection to women, Abbasi elucidates, “Multiple clauses can grant protection to the girl’s interests in marriage. It is down to the parties to discuss these with the potential spouse and tailor those which may be of particular concern to them. Clauses 14 to 17, for instance, govern the Haq Mehr (dower) payable to the bride under Islamic laws, and govern all details from the amount of the Haq Mehr to the specified time and method of payment, i.e. before or after the wedding, or upon request, etc.
“Clause 18, for example, governs whether or not the husband has delegated the right of divorce to his wife. Clause 19 governs any conditions the wife may place on the husband’s right to exercise divorce. To elaborate, some women may prefer for the sake of their own security to place a condition that the husband may not divorce her unless certain conditions are fulfilled - some may stipulate that he would divorce her only after financially securing her future interests by way of a house, money, or any other assets; some may stipulate that he may not divorce her until such time as the two have had an opportunity to resolve their disputes with the use of a marriage counselor or arbitrator, etc. Clause 21 governs whether or not the groom was previously married and if yes, whether he has permission to enter into the second marriage.”
In a two-party business venture, both parties can insert their demands, terms and conditions in the contract. Can the same happen in a nikah contract? “Of course,” asserts Abbasi. “In addition to all the above clauses, both parties can add any ‘special conditions’ they desire in the contract.”
A general concept is that only a man can divorce his wife. It is correct, but with the agreement of the groom, this right can also be delegated to the bride at the time of nikah. “Yes, that’s true and is termed as Talaq-e-Tafweez. It is another option for the dissolution of marriage under which a woman is granted the right to divorce, once her husband delegates the same upon her. Clause 20 of the nikahnama specifically asks whether a woman has been granted this right, but most Muslim clerics and/or elders of the family shy away from addressing this concern and cross the right out without giving the bride or groom a chance to consider and let them decide whether they deem it inappropriate, crass, or unlucky to discuss such eventuality before the ‘holy bond or marriage has been entered into’. Young boys and girls are requested - for the sake of their own interests - to have the confidence to speak with each other about the possibility of the termination of the contract and marriage due to unforeseen events,” clarifies Abbasi.
“A common myth is that if the bride has been granted this right, the husband loses his right to divorce his wife. This is not true. Another myth is that if a bride does not have this right delegated unto her in the nikahnama, she cannot leave her husband. This is also not true, as Islam allows her separation by way of khula. The only difference that a woman’s right to divorce grants is that unlike khula proceedings which are lengthy, costly in terms of legal fees, and require court appearances, a woman can exercise her right to divorce herself on behalf of her husband by contacting her nearest Union Council. Secondly, a woman usually has to forgo her right to Haq Mehr in cases of khula, whereas her right to divorce will not deprive her of her Haq Mehr (unless this is a specific condition of the right to divorce granted to the woman),” Abbasi clarifies.
Often, the husband and wife - or their families - bicker about things like expenses, whether the girl would continue to work if she is employed, pin money, etc, which creates acrimony. So what things should the bride-to-be and groom consider before they say ‘I do’. “Honestly, whatever that matters to both parties. Numerous marriages fail in Pakistan because expectations differ from reality, and by then it is too late to change anything. Numerous marriages end in the ugliest possible ways, with both parties hurling accusations at each other and characters being called into question. Islam sanctifies the bond of marriage, as well as the ease with which spouses must release each other in case of non-compatibility. Yes, divorce is to be exercised with extreme caution and for a good reason, but it is not forbidden and Allah commands that separation, too, happens with respect and kindness.
“Unfortunately, because these topics are not discussed well in advance, financial and moral interests come into play later - leading to harsh separations. It is important to talk these concerns out in advance, as well as any issues which are a prerequisite to one’s idea of a happy marriage. Discuss whether the new couple will live independently, discuss who will bear the financial expenses of the family, discuss how the wife’s financial needs will be met according to the husband’s social standing, discuss whether the wife will have the right to further education or to her career... discuss everything that matters and add the same into the nikahnama with mutual consent of both the parties. Please, do not enter into marriage against your free will and full understanding. Marriage is a beautiful journey and a great responsibility, and one must be conscious of what he/she is signing up for,” concludes Abbasi.
*Names have been changed to retain privacy
