The nikahnama, the marriage contract in Muslim weddings, is more than just a legal document. It's a reflection of the couple's hopes, dreams, and perhaps a little bit of fear. While the terms of the nikahnama can be negotiated, there's ofte an unspoken pressure to conform to traditional expectations.
The terms and circumstances of marriage are outlined in the nikahnama. Several provisions of this legally binding document are negotiable and amendable by the terms agreed upon by the bride and groom. But negotiating the terms of the nikahnama can be challenging, especially for women. Parents often hesitate to include clauses related to divorce, second marriage, separate accommodation, or pocket money, fearing that it may give the groom's family the wrong impression that the girl is strong-willed or rebellious. This can create a difficult situation for women who want to ensure their rights and protect their interests within the marriage.
Sometimes, out of custom or ignorance, the family, the nikah khawan [religious person who solemnises the wedding] or registrars will cross out or leave blank some rights, particularly the Talaq-e-Tafweez [the right of pronouncement of divorce by a wife granted to her by the husband in the marriage contract or at any time after the marriage].
It is essential that both the bride and groom fully understand their rights and the potential for changes to the nikahnama. This ensures a more equitable and informed marriage agreement.
“This is an ideal situation, but it doesn’t always work like that in our set up,” says Mavara Siddiqui, who got married six months ago. On her wedding day, the nikah khawan refused to solemnise the marriage due to clauses in the nikahnama that restricted the groom from remarrying without her permission or from divorcing her in anger or during a fight.
“My husband and I discussed these clauses with each other and our parents, and everyone agreed. However, on my wedding day, the nikah khawan refused to solemnise the marriage when he saw these clauses included in the nikahnama,” she shares explaining how tense the situation had become.
After much discussion and involvement from both families, the issue was eventually resolved, and the marriage proceeded. However, the incident caused embarrassment in front of relatives, and there were attempts to find alternative solutions, such as signing the nikahnama without the disputed clauses.
“To avoid embarrassment, my brother suggested that I sign a blank nikahnama. However, I refused and insisted that the marriage proceed only with the agreed-upon clauses included,” she explained, adding that later, a fatwa was given, and our nikah was performed and we were told that we could edit the nikahnama and the clauses later.
Siddiqui’s case is not rare, but almost every bride or groom who stood up to intervene in their social contract has faced backlash from their parents, elders, and even relatives.
“I didn’t want any of the clauses that are important for me as a woman to be just slashed off in the contract and I wanted to have the right to take divorce,” says Iqra Khan. “Initially, my fiancé was hesitant, but later he agreed, and we decided to go with the clauses on the day of my nikah in the mosque. But my father refused to agree to my demand for inclusion of the clause and reprimanded my husband-to-be, at the time,”
She added that her father later explained his reason for refusal at the time of the nikah. He felt that it was necessary to avoid giving the groom’s family and relatives the wrong impression about Iqra being an open-minded and dominating woman who was already thinking about divorce before even getting into the matrimonial relationship. He didn’t want his daughter to be seen as wayward.
“In Pakistan, unfortunately, everyone has the right to decide for the bride and groom except the two people who are starting a new life,” Iqra laments.
In Pakistan, the nikahnama is legally recognised by The West Pakistan Rules under the Muslim Family Laws Ordinance, 1961. As long as correct legal procedures are followed, any revisions or special provisions added to the nikahnama may be enforceable.
The nikahnama is normally sent to the local Union Council (or the appropriate marriage registrar's office) once it has been filled out, signed, and witnessed. The nikahnama, is now legally recognised by the state as a result of this submission.
It is crucial that the bride and groom make sure that any special provisions or changes (such as the right to divorce or financial assistance) are properly documented.
“The nikahnama, like a rental agreement, is a social contract that can be easily understood and customised. Just as we carefully review and negotiate the terms of a rental agreement, we should also approach the nikahnama with the same level of attention. This ensures that both parties, the bride and the groom, fully understand and agree to the terms of the marriage contract,” says Bilal Jirjees, a lawyer who has been working on a project to spread awareness and education about nikah clauses.
The clause of delegated right of divorce (Talaq-e-Tafweez) in the nikahnama is a controversial topic and its enforceability is debated. While some argue that it is valid if explicitly mentioned and agreed upon by both parties, others believe it is against Islamic law and unenforceable. It's important to consult with religious scholars and legal experts to get a clear understanding of its legal status in Pakistan.
The bride can initiate a divorce once this clause is approved and signed by following the legal processes, which typically include informing the Union Council and waiting for a reconciliation process.
If a provision prohibiting polygamy is included and accepted, the groom may face legal repercussions for breaking it. Before marrying another woman, the groom must obtain consent from the first wife and a court, according to the Muslim Family Laws Ordinance. If the wife’s consent is not acquired, the second marriage may be considered invalid, and the groom can face fines or imprisonment.
“In an ideal society, we expect that the bride and groom sit together and discuss the legal contract, but if that’s not acceptable in the society, then this can be done in the presence of wali [witness], but all clauses should be discussed and agreed upon,” says Jirjees adding that in cases like Siddiqui’s, one should either change the nikah khawan or opt for editing the nikahnama later. Following that, the elders of the family can discuss it with the nikah khawan to avoid any confusion and embarrassment last moment. The contract can be extracted from the UC, and both parties can present witnesses and get the contract edited and add clauses that they both agree on. Also, an annex can be added to the contract such as monetary changes in haq mehar [the obligatory gift or dower given as a mark of respect to the wife at the time of marriage by the husband] or inclusion of any other condition.”
The contract has been edited many times, and many clauses have been added since the first draft, but each province has different sections and clauses. “For example, Punjab has a clause to sign and declare Khatam-e-Nabuwwat in the nikhanama, while Sindh doesn’t have any such clause yet,” Jirjees points out.
In situations where the niknahnama's provisions were not adhered to, women's rights have been duly defended in the court. For instance, courts have frequently decided in the favour of the bride, acknowledging her contractual rights, particularly in situations where the right to divorce was granted in the contract, but rejected later. To guarantee that the groom fulfills this duty during or after the marriage, courts have a history of upholding women's rights to mehr, even in cases where the payment is postponed.
Other than these, in cases where the imam of the masjid or the nikah khawan doesn’t agree to add in the clauses claiming them to be un-Islamic, the best course of action is to mention that the social contract is formulated by the state with the consultations and approvals from Council of Islamic Ideology.
“In cases where the nikah khawan refuses to solemnise a marriage due to controversial clauses, they should be asked to consult with the Council of Islamic Ideology. Since all clauses in the nikahnama are included after their approval, the Council can provide clarification on the matter. A better idea is to consult a nikah khawan before the marriage ceremony and discuss the contract to avoid any embarrassment at the last moment,” shared the lawyer.”
The concept of nikah and nikahnama are two different things, religiously and legally, and both stand apart, but the role of the qazi is important because the state has given him the responsibility to sign and register the marriage for which he stands responsible.
“Anything and everything that is written in the contract will be taken as the final word legally, and if party-A and party-B have agreed, then there is no reason to avoid the clauses that are already mentioned in the contract,” says Syed Uzair ul Huda, a nikah khawan. He explained that the four-page legal document has many clauses and sections, and each is equally important, from the first page where details of the bio-data are mentioned, to the clauses that start from number 16-17.
“When the name, address, age, etc. are accepted as the requirement of this day and age in our society, similarly, all other sections should be accepted as well,” he reiterates.
Huda makes sure that he reads out the nikahnama to the families present at the time of solemnising the marriage, and most families avoid having open conversations. “A case happened eight months ago where I tried explaining the right of divorce to the families, and they bashed me for mentioning divorce at the time of marriage,” he says. “But after one week, the bride’s father mentioned to me that they were filing for divorce due to the many clauses that they had slashed from the contract.”
According to the nikah khawan, some sections of the nikahnama, even if left blank or crossed out, will be enforced by Islamic law. For example, the man's financial responsibility towards his wife is a non-negotiable obligation. However, clauses related to second marriage and the woman's right to divorce require specific conditions to be mentioned in the nikahnama. These conditions should outline circumstances such as domestic violence or lack of financial support. It's important to note that men also have numerous responsibilities within a marriage, as outlined by Islamic law, which are often overlooked in Pakistan.
For instance, Huda shared references of the Quranic verses that clearly state that a man can only marry more than one woman when he can do justice and if he fears he cannot do justice then he should stick to only one wife.
It's time for couples to take control of their destinies by carefully negotiating the terms of their marriage contract. By understanding their rights and advocating for their interests, women can break free from the shackles of tradition and build a more fulfilling future. Let's redefine marriage, not as a cage but as a partnership built on mutual respect, equality, and understanding.