Nikah Nama Nuances*

A Nikah Nama, otherwise known as the Islamic marriage contract, governs marital relations between any Muslim couple. This document details the rights and obligations of the partners to the marriage, and was deemed integral to any Muslim marriage long before pre-nuptial agreements became fashionable. In fact, the Islamic religion strongly emphasizes entering into contracts for any ‘transaction’ – and a marriage is treated as such.

Today, with more than 1.6 billion Muslims worldwide, it is particularly important to fully comprehend the nuances of the Islamic marriage contract. To understand the Islamic marriage contract, it is necessary to examine its provisions in the historical context of the marital reforms that Islam brought about.

Historians have found that in pre-Islamic Arabia tribal customs and practices governed all matters, including marriages, and there was no uniform set of rules applicable to the citizens of the region. As a result, the extent of a woman’s emancipation largely depended on the tribe she belonged to and her status within her tribe. Undeniably, some tribes accorded women no rights and treated them as mere property or “ornaments” – it was relatively common for newborn girls to be buried alive and sons to inherit their fathers’ wives (numbering a hundred or more in some cases) in pre-Islamic Arabia. However, there were also contemporaneous records of Arabian women managing their own businesses and making proposals of marriage to men of their own accord much before the advent of Islam. Islam attempted to unify and consolidate the rules and regulations on marriage in keeping with Islamic principles, so that these remained consistent irrespective of the affiliations, social status or geographical location of the spouses. In light of the inconsistent pre-Islamic Arabian practices described above, it would be fair to posit that Islam, and particularly the marriage contract, aimed to broaden and extend the protection granted to all women, notwithstanding their individual bargaining powers; Surah Nisa and various Quranic verses lend credence to this contention. Men in that time were, as today, in lesser need of protection.

A study finds that one prominent obligation in early Islamic marriage contracts in Egypt was the husband’s responsibility to support his wife financially (Asifa Qureshi & Frank E. Vogel, The Islamic Marriage Contract: Case Studies in Islamic Family Law, the Islamic Legal Studies Program, Harvard Law School (2008)). The same study finds that Egyptian courts during the early Islamic period were considerably flexible and liberal in interpreting Islamic injunctions in favor of women so that a wife could successfully sue to end her marriage for inadequacy of financial support or lack of companionship. In one example, a judge referred to the Hanafi madhhab and concluded that a wife was not obliged to travel with her husband away from the home where she was secure and protected. Ironically, the study notes that women’s rights in marriage negotiation and dissolution were severely limited following adaptation of nineteenth-century European traditions of gender by the Egyptian legal system.

Taking the above facts into account, the Nikah Nama should be read as a document targeted at upholding the rights and dignity of women in a marriage. It is difficult to comment on the Islamic marriage contract exhaustively, but I have attempted to highlight the provisions that spouses (particularly brides) need to pay special attention to before signing this document. A standard template of the Islamic marriage contract (as per rules 8 and 10 of the Rules under the Pakistan Muslim Family Laws Ordinance, 1961 (VIII of 1961)) is contained below, with commentary on the relevant provisions set out in italics and any non-contentious, self-explanatory provisions have not been commented on):

1. Ward No:  Town/Union:  Police Station:   District: Where Marriage held

2. The name of the Bridegroom & his father’s name along with his residence:

3. The Bridegroom’s age:

4. The name of the Bride & her father’s name along with her residence:

5. Whether bride is a virgin, widow or divorced:  Interestingly, a woman who has never been married is officially referred to as a virgin in most English translations of this document.

6. The Bride’s age:  Although the age of a bridegroom must be at least 18 at the time of marriage, a bride may be 16 years old (Child Marriage Restraint Act, 1929). According to the Majority Act, 1875 a woman cannot vote or be issued an identity card at the age of 16, but oddly enough she is deemed capable of becoming a wife and bearing children at this young age.

7. The Bride’s attorney, if appointed, along with his father’s name and residence:

8. Names of witnesses to the appointment of the Bride’s attorney along with their father’s name and their residence and their relationship with the Bride:

9. The Bridegroom’s attorney, if appointed, along with his father’s name and residence:

10. Names of witnesses to the appointment of the Bridegroom’s attorney along with their father’s names and residences:

11. The name of the witnesses to the marriage along with their father’s names and residences:

12. The date when the marriage was celebrated:

13. The amount of Mahar:  Mahar, also known as Haq Mahar, is one of the essential elements of a Muslim marriage without which the marriage may not be considered valid. It may not be payable if the couple divorces before consummation of the marriage. The Mahar effectively constitutes the bride’s personal savings because the only other financial support she can legally expect from her husband is basic living expenses for herself and her children. If this section is not filled, a wife is still entitled to approach the court to determine the amount of Mahar in light of the parties’ social status, the wife’s reasonable requirements and her husband’s financial means. In view of the fact that, in the majority of cases, a wife may be expected to leave her home to be with her husband, Mahar should be seen as the consideration paid by a bridegroom and his family to the bride for entering into the union and, at times, potentially foregoing the opportunity to independently earn her own livelihood; there is no shame in demanding a reasonable amount of Mahar from the social or religious perspective.

The “Shariah” amount of Mahar frequently filled in this section is not calculated in accordance with the Shariah at all. The four prominent Imams of fiqh (Islamic jurisprudence) were not in agreement over the minimum amount of Mahar; only Imam Abu Hanifa was of the opinion that the minimum Mahar amount should be 10 Dirhams (approximately 30.618 grams of silver) whereas Imam Malik ibn Anas opined that it was 3 Dirhams (9.185 grams of silver). According to Imam Muslim bin al-Hajjaj, the Mahar paid to the Prophet’s wives was 500 Dirhams (approximately 1530.9 grams of silver), which would be approximately US Dollars 675 today, or a little more than Pakistani Rupees 70,000 at the current exchange rate. This figure does not factor for inflation or purchasing power, and it would be a literalist approach to provide this amount of Mahar.
The Quran, on the other hand, categorically requires a man to give his bride a “free gift” (Verse 4; Surah Nisa) and even envisages the possibility of this gift of Mahar being a “heap of gold” or “treasure” (Verse 20; Surah Nisa).
If a bridegroom insists on following the Sunnah in determining this amount, it would be warranted to require him to first spend three to five years in a scorching desert without electricity, travelling on camel-back, to be fully compliant with Sunnah.

14. The amount of Mahar Moajjal; andthe amount of Mahar non Moajjal:  Moajjal (Prompt) Mahar is paid before or at the time of the Nikah – it should necessarily be paid before consummation of marriage, provided that the husband can afford to make the payment. It is preferable to take Mahar in this form to avoid complications in the future. Prompt Mahar gives the wife financial security at the outset of the marriage. It should be noted that Prompt Mahar is not always paid before consummation of the marriage in practice due to a bride’s inability or unwillingness to insist on its payment.

Non-Moajjal (Deferred or Mowajjal) Mahar is paid upon the occurrence of a specified event e.g. a divorce or the death of the husband. However, Deferred Mahar may be demanded at any time after the marriage has been consummated. This form of Mahar provides security to the wife on the occurrence of any specified event. Anecdotal evidence and court records suggest that Deferred Mahar could become a cause of marital disputes and domestic violence on occasion. In spite of this, Deferred Mahar may still be useful as a deterrent if it is used to penalize the husband for any untoward behavior.

It is, therefore, ideal to keep a combination of both Prompt and Deferred Mahar, which balances both parties’ interests.

If the marriage contract does not specify whether the Mahar is Prompt or Deferred, then it is presumed to be Prompt Mahar under Pakistani law (Section 10 of the Muslim Family Laws Ordinance). 

15. Was any part of the amount of the Mahar paid at the time of the marriage? If paid how much?

16. If a property is given for full amount or part of the amount of the Mahar, if so give the price of the property which was fixed among the parties:  A bride may also be given property in the form of Mahar, which typically has the advantage of gaining value over time. The exact monetary value and details (e.g. location etc.) of the property should be recorded here (or in an attachment referred to here).

17. If any other condition laid: Both spouses are free to insert any other conditions here, for example the number of children they wish to have or where they shall reside after the marriage.

18. Whether the bridegroom has given the right of Divorce to the Bride. If yes, then on what conditions:  Ideally all wives should have the unconditional right to divorce their husband. At the minimum, clauses 18 and 19 should mirror each other because the spouses should have equal rights to sever a marriage. If it is difficult to agree to an unconditional right of divorce, then it may be conditioned on the occurrence of specified events (e.g. domestic violence, adultery or polygamy).

19. Is there any restriction on the right of Divorce on the Bridegroom:  As noted above, the same restrictions placed on a bride’s right of divorce at clause 18 should apply to the bridegroom as well. Both husband and wife should have equal rights to sever their ties. If the marriage is treated as a contract then it must be fair, and if it is regarded as a bond of love then both spouses should lovingly grant each other equal rights. If this right were not given to the bride, she would still have the statutory right to seek a divorce on a number of grounds listed in Pakistani law.

20. Is there any document was drawn up at the time of marriage relating to dower, maintenance etc.? If so, the contents thereof in brief:  It is possible to enter into additional agreements at the time of the marriage, for instance to secure the minimum amount of maintenance, create a trust fund for children, or abstain from selling a particular property or home etc.

21. Does the Bridegroom already have a wife? If so, has he obtained the permission to have a 2nd wife according to the Rule No. 8, 10 of the Muslim Family Law Ordinance of 1961?
(a) Is the Bridegroom a widower or a divorcee?(b) Does the Bridegroom have any existing wife/wives? If the husband is a widower or divorcee, how many children does he have & what are their names? In Pakistan, if a bridegroom is already married, he requires a permission certificate from the Arbitration Council in his locality to re-marry. It is usually possible to obtain a copy of the permission certificate.

If a bride was unsure about the bridegroom’s marital status, it would be advisable to make inquiries at the Union Council in the bridegroom’s area of residence.

22. No and date of the certificate according to which the Council has permitted the 2nd marriage:

23. The name of the Nikah Reader with his father’s name and residence.

24. The date when the marriage was registered.

25. The fees of the registration paid.

The aim of this article is obviously not to condone the mistreatment or exploitation of men, and the Mahar or any other demands made of the bridegroom should be reasonable and in accordance with his means. Any negotiation on the above-mentioned provisions should be conducted between the prospective spouses since the marriage contract will dictate their relationship inter se. If the parties fundamentally disagree over any clause creating an impasse, then this would be a good time for the potential spouses to consider their compatibility.

 

 

* Some research was generously contributed by Ms. Fatima Shaheen and used with her permission.

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.