By Aasha Eapen
A Muslim marriage, called a Nikah is both a civil contract and a religious affair, can be terminated by divorce. The fundamental features of the Nikah are common to both Sunni and Shia Muslims.
Questioning the validity
Validity is dependent on mental and physical capacity. The marriage must be proposed by one party and accepted by the other in a single meeting and should take place in the presence of mentally sound witnesses (two males / four females) belonging to the Muslim community.
In order to be considered valid, the bride and the groom are asked for their voluntary consent by the Kazi before the witnesses. However, it is possible for the marriage to be arranged and signed in the bride’s absence so long as 2 of her witnesses are present. A valid contract is called Nikahnama, and the groom gives the bride an amount of Mehr (bride price) either during or after the marriage. The marriage should be declared publicly, and this is usually done by throwing a walimah (banquet).
Liberties and restriction
A Muslim man is allowed to have up to four wives at a time if he can treat each wife equally. He is also permitted to marry a woman of a different religion as long as she is Jewish/Christian (Kitabia). A Muslim woman can only have one husband at a time and is permitted only to marry a Muslim man. However, most modern Muslim societies do not practice polygamy. A marriage would be deemed invalid on the grounds of consanguinity between the man and the woman, between those who are in foster relationships or with two wives who have a consanguineal relationship during their lifetime. Since homosexuality is forbidden, civil partnerships and same-sex marriages are not allowed. This is due to the belief that marriage should be between a man and a woman and should create children.
Since Muslim marriage is a social contract, payment of Mehr is considered indispensable. It functions as a payment made for the bride’s surrender of the person after the marriage and the imposition of restrictions for divorce.
While the main tenets of the Muslim marriage stipulate provisions for the woman, several variations make the marriage contract prone to exploitation.
The Nikah Mut’ah is a verbal or written contract where both parties agree to the duration (ranging from a few hours to years) of the marriage and stipulate conditions for this. The end of the contract is the end of the marriage. It was originally intended for businessmen who frequently went on long journeys but is now cited as an opportunity to know a prospective long-term spouse better. It is practised by Shia Muslims but considered haram (forbidden) by Sunni Muslims; who might equate it to prostitution.
Sunni Muslims practice informal marriages too. Nikah Misyar enables couples to live separately as long as they are mutually agreeable to this while Urfi takes place without the explicit approval of the bride’s guardian. Unlike the Nikah Mu’tah, both these arrangements do not have time limits.
Muslims who agree with the triple talaq concept (divorce through repetition of his repudiation thrice, either electronically, in written form or verbally) may also agree with Nikah Halala.
To them, it is the only way to remarry a divorced spouse. It involves marrying another person, consummating that marriage, getting divorced and then remarrying the initial partner. This is strongly opposed by many Muslims and in many cases, women have been financially and sexually exploited and blackmailed.
Moving the legal system
In India, Muslim women were subject to customary laws before independence. In a bid to ensure more equality, they petition for Muslim ‘personal law’ to be made applicable to them. Though Article 14 of the Indian Constitution grants all Indian citizens “equal protection under the law”, personal issues like inheritance, marriage and divorce are regulated by personal laws.
This is how the Muslim Personal Law (Shariat) Application Act, 1937 was passed.
There is also a Special Marriage Act amended in 1954. The act specifies marital laws for all people, irrespective of religious belief and Muslims can marry under this law.
In 2016, Shayara Bano of Uttarakhand challenged the validity of talaq-e-biddat, arguing that it violated the fundamental rights of Muslim women. The process was not without struggle, with opposition from sections of the Muslim community and political parties who sought to mobilise support against Muslims. However, relief came in August 2017, when the Supreme Court viewed the practice to be unconstitutional. Enforcement, however, can only take place once a law declaring the illegality of arbitrary talaq is enacted.
A call for a uniform civil code
Changing the personal law is an uphill task both due to the fervent opposition and section 2 of the Act which states the Muslim Personal Law (Shariat) would prevail where the parties are Muslim.
A uniform civil code would render more equality to Muslim women in these matters but would severely hinder traditional Islamic practices. The imposition of the same law in personal affairs in a country whose citizens have such diverse cultures and religions is unjust. Individual rulings against practices that impinge on fundamental rights are better and less disruptive, as means to bring about reform.