The living room was decorated with roses and marigolds, flowers customary for the mayoun ceremony. Decorated bowls were filled with ubtan mixed with rose water; the paste was to be applied on the groom’s face as a pre-wedding tradition. Before the ceremony could start, the groom’s father walked into the room with an ashen face.
He had just gotten off the phone with one of the imam (nikah registrars) who was supposed to preside at the nikah ceremony the next day. The imam was upset that the groom had granted the bride the right to divorce in the nikahnama and had also entered a stipulated condition in the contract, as per the wishes of the bride. The imam had chastised the groom’s father and accused him of bringing bad luck into the relationship prior to the nikah. When asked if he would still preside over the nikah, he grumbled and said that he would read the nikah although he did not wish to endorse conversations regarding divorce at the time of nikah.
Nearly eight months after writing my master’s dissertation titled “Towards Financial Security for Married Muslim Women: Re-evaluating the Nikahnama, Mahr and Jahez in Pakistan,” I was watching this dreaded scenario play out right before my eyes at a family wedding. In my dissertation, I had highlighted that maulvis were wrongfully pressuring families to cancel clauses pertaining to financial and social rights of married women in the nikahnama, and encouraged the families of the grooms to remain steadfast in ensuring that the bride was given her due rights. However, I witnessed a family that was fully aware of the nuances of the nikahnama asking their son to cancel the clauses to ensure that the nikah ceremony was ‘peaceful,’ ‘blessed,’ and ‘auspicious.’
When I said that there was nothing un-Islamic and inauspicious in giving the bride what was her right, I was shut down with glares and barbed comments. It was deja vu as I had encountered similarly icy reactions during interviews for my dissertation. Therefore, nearly eight months after the submission of my dissertation, I decided to revisit my ethnographic research in tandem with my latest experience of attending a family wedding, to examine in minute detail how religion, gender and law come together in this colourful kaleidoscope of the nikah ceremony.
Of religious obligation and social standards
Shahla Haeri, quoting Imami (1971), defines nikah as a ‘legal relationship,’ formed between a man and woman due to a contractual marriage that allows them to enjoy each other sexually. Islamic marriage contracts date back as far as the third century. In Egypt, these contracts were written down on papyrus, leather and other types of fabric and the noted information included the amount of mahr, professions of the groom and witnesses and stipulated conditions. There is also abundant information about the Islamic marriage contract in the 17th and 18th century Ottoman Syria and Palestine and in Al-Andalus, which can be largely attributed to the archives of Sharia courts, fatwa documents and extensive theological discourse. Although marriage in Islam is contractual in nature, it is also an act of social convention which is symbolised by rituals, ceremonies as well as signing of the nikahnama.
There is no standard framework for the nikahnama across Islamic countries as it is derived from a specific country’s interpretation of Sharia and constitutional laws. However, almost all forms of nikahnama include the clauses for mahr, stipulated conditions and khul (form of divorce initiated by the wife). A standard nikahnama in Pakistan contains 25 clauses which constitute various aspects of an Islamic marriage.
When I said that there was nothing un-Islamic and inauspicious in giving the bride what was her right, I was shut down with glares and barbed comments.
My focus is on clauses 17 and 18 of the nikahnama, which provide space for stipulated conditions to be mentioned and allow the wife to initiate divorce. In the case of the family wedding, the bride had wished to use clause 17 to cite that she did not give her consent to the groom to remarry while he was married to her. It was this point that had caused the maulvi to be upset as he argued that the sanctity of the nikah ceremony was being harmed by negotiating upsetting topics such as divorce and remarriage. It is worth noting here that such a declaration has no Islamic or legal basis.
More recently, the nikahnama has been a heated subject of reform and debate in Southasia. In 2021, the All India Muslim Personal Law Board (AIMPLB) issued an 11-point nikahnama, which bans dowry, mayoun (pre-nikah festivities), fireworks, music and other extravagant activities. Muslim marriages in Sri Lanka are governed by the Muslim Marriage and Divorce Act (MMDA) which is still quite discriminatory towards women. In 2021, the Cabinet of Ministers approved a proposal to permit Muslims to marry under the Sri Lankan Marriage Registration Ordinance. However this is yet to be passed in the parliament. In Bangladesh, while more women are receiving the right to initiate divorce, they still face numerous legal barriers to exercising this right. In Nepal, a joint report by Musawah and Nepal Muslim Women’s Welfare Society (NMWWS) to Committee on the Elimination of Discrimination against Women (CEDAW) in 2018, states that Nepali Muslim women cannot seek justice in court as their marriages are largely unregistered, putting them at risk and grave disadvantage, particularly in cases of divorce.
The nikahnama as a mere piece of paper could not compete against the maulvi’s theological assertions, which were based on his own patriarchal assumptions and interpretations of the Islamic institution of marriage.
The tension between legal practice and social conventions is not a recent phenomenon, as several fatwas from Granada show that celebrating the marriage and exchanging gifts was considered more important than drawing up and signing the marriage contract. The fatwas further show that the signed documents often differed from actual practice. For example, legal scholar Ibn Lubb confirmed that while the bride and groom agreed to the receipt of a marriage gift in front of the notary, the gift was not exchanged at the time of marriage and was usually given much later.
To fully understand why there is a difference between the nikahnama as a legal document and as a social practice, there is a need to examine the nikahnama closely as a paper document. Cultural historian Ben Kafka has rightfully observed that historians and anthropologists have “discovered all sorts of interesting and important things by looking through paperwork, but seldom paused to look at it.” One of the reasons for this might be that immediate attention is given to what they document rather than their own importance as a piece of paper. Take the example of the situation cited at the beginning of this essay. Preparation for the nikah ceremony had been in full swing in both the bride’s and groom’s families for a while, yet the nikahnama emerged from the glossy brown envelope a mere 48 hours before the actual ceremony. To be fair, the bride and groom did speak with me before filling out the form, and I was able to help them the best I could. However, the reaction of the imam took precedence over all legal and social debates. The nikahnama as a mere piece of paper could not compete against the imam’s theological assertions, which were based on his own patriarchal assumptions and interpretations of the Islamic institution of marriage.
Thus, the real argument is neither about the cancelled clauses in the nikahnama nor the unfilled sections, it is about why the maulvi had so much power in this situation and why the groom’s family, despite being aware, tried to pressure their son into doing what every patriarchal Muslim family does – cancel khul and leave the section for stipulated conditions blank. To understand this fully, I have conducted research on the evolution of the Islamic legal marriage contract in Islamic countries and then attempted to compare and contrast my findings with contemporary nikah traditions in Pakistan.
A piece of paper, social custom and legal evidence
Stipulated conditions in early Islamic marriage contracts testify to the fact that women had more control in their marriage compared to later years. Papyrus contracts from pre-Islamic Egypt show evidence of stipulated conditions which included good treatment, preventing a second concurrent marriage and protecting the wife’s ability to end a marriage. Further specifics included elaborating on what ‘good treatment’ referred to, such as avoiding mental and physical abuse and guaranteeing an amicable divorce. Other clauses included the condition that the wife could claim divorce from court if the husband did not support her financially for a certain number of years. Notably, while both bride and groom can add conditions to the contract, the clause for stipulated conditions has historically been more important to the bride, as the groom can end the marriage at any point. On the other hand, the wife usually must give up her dower and, in some cases, might even have to pay additional compensation.
How did stipulated conditions then become a taboo topic at the time of nikah? One reason can be attributed to the change in the social nature of marriage itself. In the case of Pakistan, the shift towards preserving the family at all costs has paved the way for increased religious interference by reinforcing patriarchal traditions. Though the Muslim Family Law Ordinance 1961 (MFLO) supports the legal importance of the nikahnama and the rights that it grants to women, actual practice is quite different. As per provincial family laws in Punjab in 2015, cancelling clauses in the nikahnama is considered a punishable offence and the maulvi must read the clauses to the bride and groom aloud if they are not literate. Moreover, the maulvi is entitled to pay PKR 25,000 as a fine if the nikahnama is filled out without the consent of the bride and groom. However, the real situation in Pakistan is more complex.
The male religious scholar stated: “Feminists like you that are always causing drama over the nikahnama,” and insisted that the only thing of value in Islamic marriages is the nikah ceremony itself, so there is no real need to register the nikahnama.
Perhaps the most significant form of disparity between law, Islamic practice and social practice occurs in the form of clauses 18-19, which allows the wife the right to seek divorce or khul. In this type of divorce, the wife is expected to give something to the husband in exchange for the divorce. This can be in the form of cash, property or jewellery and there is no stipulation as to its value. In Pakistan, when women opt for khul, they are normally encouraged to forgo their mahr (an obligation in the form of money or possessions paid by the groom, to the bride at the time of Islamic marriage). If a woman has been granted the right to khul, she can simply go to court with the nikahnama, and once the three-month period for reconciliation is over, the divorce becomes final. If this clause is cancelled, then the woman might have to go to court multiple times until her husband agrees to divorce her. In most cases the husband does not agree, which is why it is important to include this clause. Clause 18 in the nikahnama also ensures that the woman is financially secure if the marriage comes to an end, as she is only required to return part of her mahr. This clause is crucial as it allows women to initiate the process of divorce, which is in stark contrast to the most common form of divorce in Islamic societies: triple talaq. The Urdu word talaq translates as divorce. In some Sunni schools of thought, saying ‘talaq’ three times means that the divorce is finalised instantly. However, the 1961 MFLO does not acknowledge triple talaq as a legal form of divorce. According to official law in Pakistan, when either the husband or the wife initiates the process of divorce, the couple is granted a three-month reconciliatory period. At the end of three months, if the couple wishes to reconcile, then they can do so. If they still want to proceed, then the divorce becomes official. Several feminist advocacy groups have requested governments to ban triple talaq as it basically means that women can be forced to get a divorce for no reason. However, this request has been heavily resisted by religious scholars, and particularly in the case of Pakistan, triple talaq continues to be a common practice.
Anthropologist Katherine Lemons has made several interesting observations regarding divorce in the Indian subcontinent. She argues that the strong presence of religious authority in divorce dates back to the 19th century, when religious authorities began to be removed from state courts and set up their own courts called dar-ul-qazas to settle disputes between Muslims. This also reinforces the link between religion and family in the private sphere and blurs the boundaries of what is considered private and public when it comes to practised religion. The real problem starts once women go to court to seek divorce, thereby stepping out of the private realm into the public realm. This is why women are more inclined to seek divorce via the state-sponsored legal system as opposed to religious courts. Once a woman decides to approach a court to seek divorce, other social factors such as gender, class and status can play a pivotal role in determining the outcome of the case proceedings.
More recently, the nikahnama has been a heated subject of reform and debate in Southasia.
However, the link between the nikahnama as social practice and as a legal document is slowly becoming stronger. In a landmark verdict in India in 2013, the judge ruled in favour of the wife by using the nikahnama as primary evidence and concluded that “it is moral and legal duty of the husband to look after his legally wedded wife”. The judge went on to announce that a husband is obliged to pay allowance to his wife until she remarries. This decision was based on numerous important cases such as the Shah Bano Begum case in 1985, the Danial Latifi case in 2001 and the Iqbal Bano case in 2007.
An anthropologist in my own home
In 2021, I interviewed three married women, a matchmaker, two religious scholars (one male and one female) and an unmarried woman for my master’s dissertation. The interviews were semi-structured and my prompts were mostly open-ended questions about the nikahnama, mahr and jahez (dowry). Regarding the nikahnama, two of the married women said that they were pressured to sign the document without reading it; thus, they were not even sure of the clauses that were cancelled in their nikahnama. All three married women did not even have a copy of their nikahnama. The female religious scholar asserted that it is not enough to simply grant the right of divorce to the bride or to add stipulated conditions; rather there was a need to understand the nikahnama as a unified document in which all the clauses are linked to one another. For example, citing a high amount of mahr to discourage triple talaq is hardly effective if clause 18 (khul) is cancelled. If the husband is unable to pay a high amount of mahr, he cannot divorce his wife but he can put her through tremendous emotional and physical abuse which might lead the wife to go to court to seek khul as per the Dissolution of Muslim Marriages Act 1939. This is a double blow for women because without clause 18, the court demands significant proof to show that the wife went through a torturous marriage. This includes strong evidence to prove the husband’s insanity, desertion for a minimum of four years, failure to provide financial support for two years or proof of a second marriage by the husband without the consent of the first wife. Failure to show sufficient proof means that the wife will need the husband’s consent for judicial divorce, which the husband does not usually provide. Therefore, the female religious scholar rightfully claims that there is a need to spend some time with the nikahnama beforehand to understand all its nuances. This was also supported by the matchmaker, although he encouraged that the families should be actively involved as opposed to just the bride and groom.
Perhaps my most interesting conversation about the nikahnama was with the male religious scholar. He stated that “feminists like you that are always causing drama over the nikahnama,” and insisted that the only thing of value in Islamic marriages is the nikah ceremony itself, so there is no real need to register the nikahnama. Although he attested to the fact that writing conditions in the nikahnama does make a couple’s life easier, he proclaimed that families should approach such matters with love and should employ social methods of reconciliation rather than heading straight to court. He also insisted that while women have been granted more laws, the rates of divorce have also increased, which indicates that women are compromising less and they are using the right to divorce. Anthropologist Sylvia Vatuk cited a similar reason in her research and quoted the secretary of the All India Muslim Personal Law Board (AIMPLB), “We are in the business of preserving Muslim families, not contributing to their breakup!”
Several feminist advocacy groups have requested governments to ban triple talaq as it basically means that women can be forced to get a divorce for no reason.
Sociologist Rachel Rinaldo defines agency as “people’s capacity to make choices and to take action in the world.” This agency must be exercised not just by the couple but also their families. Anthropologist Lisa Wynn has conducted interesting research on contractual Islamic marriage in Saudi Arabia and has concluded that the bride’s mother should be a key part of negotiations as she has first-hand experience of the implications of the clauses in the nikahnama. She further points out that there is a need to acknowledge the generational gap, as young women are largely dependent on the elders in their family to negotiate on their behalf. As young women are largely unaware of the nuances of the clauses, it is crucial for the older generation to gain awareness so that they can negotiate in an appropriate manner. Wynn further attempts to reconcile this difference by asserting that a woman’s experience of signing the nikahnama cannot be separated from her relationship with her family, in-laws and the gender relations in both families. It is worth noting here that emphasis is being placed on everyone being a part of agency as opposed to accompanying agency with compromise; the latter being a common feature when it comes to the rights of the woman in the nikahnama.
What happened in the end
Following the phone call, other family members attempted to calm the groom down by initiating traditional mayoun activities. Once all the guests had departed around midnight, the groom sat down with two versions of the nikahnama. In the first version, he did not cancel clause 18 and also mentioned the stipulated condition that he would not enter into nikah with another woman while he was married. In the second version, he cancelled clauses 17 and 18. The idea was that at the time of nikah, the groom’s father was to present the first version of the nikahnama and if the imam had any qualms, he would swiftly present the second version.
It was finally the day of the nikah, and much to everyone’s relief, the imam did not raise any objection at the first version of the nikahnama and swiftly led the ceremony. It was surreal to realise that we had spent 48 hours under such duress only for the imam to barely glance at the document and sign it without a word. However, there are some major takeaways from this experience. Firstly, the importance of agency and resolution. Even though the groom’s family had pressured him to cancel the clauses, he ultimately chose to remain steadfast and adamant and succeeded. He was resolute because he was aware of what each clause meant and their respective importance. Therefore, this shows that awareness coupled with agency and resolution is the way forward to ensure that women are given their due rights at the time of marriage.
Secondly, it highlights the importance and power of the maulvi in leading the nikah, the immense pressure they can place on families, and the fact that he has this power due to a lack of awareness and agency on the part of families. There is a need for women rights activists and maulvis to work towards re-assessing the nikahnama to ensure that it provides maximum rights to both the bride and groom. Moreover, khul should not be a taboo subject as there is no theological evidence to prove that it is inauspicious. According to researcher Judith Tucker between ten to twelve women showed up in court every month demanding khul in 18th century Istanbul. In 18th century Bulgaria and in Nablus, Damascus and Jerusalem, khul was the most common form of divorce. Therefore, there is a need for women to exercise agency with facts to ensure that their rights are not compromised.
Until then, it seems like I’m well on my way to become Pakistan’s next internet sensation as the baji that is always fighting with maulvis and ranting about clauses in the nikahnama.
I’m indebted to Dr Clare Bielby for her valuable feedback and support during the course of this research. I’m also extremely grateful to Dr Noah Coburn for his continued guidance and support in my ethnographic endeavours.
Note: This article was updated on 28 September 2022, to reflect that the bill permitting Muslims to marry under the Sri Lankan Marriage Registration Ordinance has yet to be passed, and to note correct authorship on the 2018 Nepal report to CEDAW.