A model ‘nikahnama’ offers an option

A model nikahnama (Islamic prenuptial agreement) has been submitted to the Constitution Bench of the Supreme Court by lawyer and women’s rights activist Flavia Agnes in the ongoing hearing of the Shayara Bano case and the constitutional validity of triple talaq.

The model provides that the husband shall provide maintenance to the wife and children as per her standard of living. The husband shall respect the reproductive rights of the wife. The husband or his family members shall not take away the wife’s personal jewellery, gifts or valuables, which she received either from her husband, his family or her family.

“The Muslim Personal Law Board hasn’t responded to the nikahnama, but I don’t think they will oppose the draft nikahnama because the Board has also submitted in court during the arguments that a woman can protect herself through the nikahnama. Every woman is entitled to include her own conditions in the nikahnama,” the lawyer told National Herald.

Stressing that this wasn’t a new issue for her organisation Majlis, she pointed out, “This is a matter we had been pursuing all along. We released a model nikahnama in the 1990s. We had publicised it then too, but now, because of the mobilisation at the ground level, the model nikahnama is likely to be seen by more persons. We had submitted this along with our submission during the Supreme Court hearing on triple talaq in May,” she added.

Agnes’s 44-page submission includes findings of NALSAR (National Academy of Legal Studies and Research) in Hyderabad on the access to justice by women. The NALSAR report states that Muslim women frequently resort to Darul Qazas (courts operating under the Muslim personal law) in addition to regular courts under Dissolution of Muslim Marriage Act, 1939.

“We decided to include the NALSAR study also in the submission because both the state and Indira Jaising have submitted that all divorces must happen in court only. I have been opposing this view because many women prefer to go to Darul Qaza for enforcing their rights. Even Hindu women in smaller towns prefer to go to their village Panchayats to resolve the issues,” adds Agnes.

The model nikahnama that Agnes has submitted makes the following suggestions:

• The stipulated mehr would be prompt or paid within a clearly stipulated time.
• The husband shall provide the wife and her children residence during the subsistence of marriage according to his standard of living.
• The husband shall not prevent the wife from taking up gainful employment if she so desires.
• In case of a dispute, the spouses will go through a process of counselling/mediation/ arbitration to resolve their differences with the help of two counsellors or arbitrators — one from each side, appointed for this purpose.
• Only if differences are not reconciled, the husband may pronounce Talaq, in the presence of two witnesses. The same may be reduced to writing in the form of a Talaqnama.

The model nikahnama also gives options in cases of irreconcilable differences where the arbitrators can resolve issues regarding outstanding mehr dues, payment of maintenance and division of properties.

In her submission, Agnes has included that the rights of the women under Protection of Women from Domestic Violence Act, 2005; the Dowry Prohibition Act; the Dissolution of Muslim Marriages Act, 1939; the Muslim Women (Protection of Rights upon Divorce) Act, 1986 as well as rights under other statutes are not extinguished through this nikahnama.

Agnes maintains that the issue is not if talaq is pronounced in one siting or over a period of 90 days, but whether there are effective mechanisms for helping poor, marginalised and vulnerable women to access courts for protection of their rights.