Model nikahnama with triple talaq ban still a work in progress

Despite SC’s ban on practice five years ago, AIMPLB is yet to find consensus on adding clause to new wedding contract for Muslims   

August 20, 2022 10:40 pm | Updated August 21, 2022 11:15 am IST - New Delhi

A bride signs in the ‘nikahnama’. File

A bride signs in the ‘nikahnama’. File | Photo Credit: The Hindu

Five years after the All India Muslim Personal Law Board pledged to insert a prohibition on instant triple talaq in the model nikahnama to be used for solemnizing Muslim marriages, the wedding contract remains a work under process. There is not clear word when, if at all, such a nikahnama would be readied and sent across to qazis who solemnize nikahnama.

An AIMPLB meeting earlier this month failed to reach a consensus on the contents of the new model nikahnama. Though there was large agreement on the need to insert a clause against instant triple talaq after the Supreme Court made it invalid and Muslim Women (Protection of Rights on Marriage) Act made it a criminal act, the members suggested that a clause on Talaq-e-Tafweez or delegated divorce needed to be inserted. Under Talaq-e-Tafweez, the husband vests his power to divorce in his wife, thereby effectively ruling out hasty or instant talaq. However, many intellectuals of Hanafi sect didn’t agree, leading to a fresh failure to draft the new nikahnama.

Says SQR Ilyas, executive member of AIMPLB, “There have been differences on the issue of Talaq-e-Tafweez but broad agreement on prohibition on instant triple talaq. We hope to finalize the nikahnama by the end of this year.”

Some members felt khula, women’s inalienable right to instant divorce, was a viable alternative for women, thereby doing away with the need for the clause on Talaq-e-Tafweez. Others though insisted that the husband’s consent is necessary for khula. The ideological logjam has been going on since 2017, when faced with the heat on the issue of instant triple talaq, the AIMPLB had pledged to formulate a nikahnama prohibiting Talaq-e-Biddat. Since then, multiple parleys have failed to bring about consensus on the new nikahnama whose first model was formulated in 2003.

Incidentally, nikahnama is essentially a contract between the spouses, containing terms and conditions of marriage. Besides incorporating basic details of temporary and permanent residence, their respective age and the names of their parents, the nikahnama carries details of meher, loosely, dower, which the husband has to pay to his wife. It can be paid immediately at the time of nikahnama or be paid later, in which case deferred payment is clearly mentioned in the contract. The nikahnama carries signature of a wakeel (advocate) and two eye witnesses besides those of the bride and groom. The bride’s consent is sought by the qazi in private without the presence of her parents to avoid family pressure on her to agree to the marriage.

In Mughal age, the nikahnama used to be an elaborate affair where girls often made it mandatory that in case things didn’t work out, the nikah will not end through pronouncement of instant triple talaq. There were conditions incorporated against polygamy, or permission granted with certain conditions, like separate dwelling for the other wife, etc.

The modern nikahnama used in Muslim marriages is often a token affair with no mention of the rights of the spouses. Under this light, AIMPLB had sought to issue an advisory that marriage should not end without making an attempt at reconciliation. And if talaq must be resorted to, it must be through the Quranic way.

However, what the model nikahnama fails to contain is an express prohibition on instant talaq even after half a decade of Supreme Court’s judgment invalidating triple talaq in 2017.

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