In an almost anticlimactic end to the complex arguments advanced during the six-day hearing on triple talaq, the Constitutional Bench led by Chief Justice JS Khehar asked whether a clause could be inserted in the nikahnama, the Muslim marriage contract, restraining the husband from pronouncing instant divorce.

Since the Muslim marriage is contractual and the bride’s consent is essential, it is within the Islamic precept to specify the nature of her consent. The ulema, specifically the All India Muslim Personal Law Board, could easily have taken this simple step decades ago, in response to demands made by some Muslim women’s groups, but they let the controversy simmer. Now, the board must carry out the direction of the Supreme Court lest it lose its autonomy to govern the affairs of the community through a legislation brought in by a right-wing government.

Interestingly, the Supreme Court’s directive has served to underline the progressive nature of the Muslim marriage, and the agency it affords the woman, as against the Hindu marriage of Saptpadi – a Brahminical ritual prescribed for all communities under Section 7 of the Hindu Marriage Act, 1955 – and Kanyadaan, where the girl is “given away”, thereby notionally extinguishing her rights in her parent’s home.

Some Muslim women doubt tweaking the nikahnama would really help. Uzma Naheed, a member of the Muslim law board, said the board has rejected her suggestion to include Talaq-e-Tawfitz (delegated right of a Muslim woman to divorce) in the contract. They argued that as women tend to be emotional, they may irrationally use this right, destabilising the Muslim society. (The argument is not dissimilar to the concerns expressed by Congress leaders during the parliamentary debates on giving Hindu women the right to statutory divorce.)

Talaq-e-Tawfitz, though, is different from what the Supreme Court has suggested. It would have enabled the wife to get a divorce instantly in a similar manner as the husband. The court’s suggestion is to the contrary: to restrain the husband’s power to pronounce arbitrary triple talaq.

In the past, several Muslim women’s groups have engaged with the task of evolving a model nikahnama. The Bharatiya Muslim Mahila Andolan, which has spearheaded the campaign to “ban triple talaq, polygamy and nikahhalala”, released a “model nikahnama” in 2012 but there is no way to gauge its popularity even among the organisation’s members. Another such nikahnama was prepared by the Muslim Women’s Personal Law Board, a breakaway faction of the All India Muslim Personal Law Board, but, again, there is no evidence it has changed anything.

Some Islamic scholars have dismissed the proposal as “mere eyewash”. If instant divorce anyway falls foul of Quranic injunction, they argue, what is the need to introduce a safeguard against it in the nikahnama? It would be akin to inserting a clause that the husband shall not prevent his wife from praying or fasting during Ramzan, remarks the scholar A Faizur Rahman.

In any case, in a patriarchal society where most women cannot even choose their spouses, the bride and her family have little, if any, say in wedding-related decisions. The nikahnama is usually drawn up by qazis affiliated to the Muslim law board and they hardly ever inform the bride of her right to negotiate the terms of her marriage.

Proud legacy

In the Mughal period, on the other hand, as the legal scholar Prof Faizan Mustafa has noted, it was a norm for the nikahnama to prohibit polygamy, domestic violence and desertion, and provide for a matrimonial residence. Any violation of the conditions entitled the wife to divorce the husband.

The Islamic jurist Ameer Ali cites similar conditions enforced on Indian Muslims by the British courts.

  • The husband will not contract a second marriage during the subsistence of the first.
  • The husband will not remove the wife from the matrimonial home without her consent.
  • The husband will not absent himself from the conjugal domicile beyond a certain period.
  • The husband and wife will live in a specified place.
  • A certain amount of dower will be payable immediately after marriage or within a stipulated period.
  • The husband will pay the wife a fixed sum of maintenance.
  • The husband will maintain the children of the wife from her former husband.
  • The husband will not prevent the wife from receiving visits from her relations whenever she likes.

An affected husband would argue that such agreements were against public policy, but the courts held them to be enforceable, reasoning that since Muslim marriages were contractual, conditions could be stipulated at the time of entering into the contract.

How come what was possible in pre-Independence India for Muslims – Hindu and English law prohibited marriage arrangement – was rendered impossible afterwards? Did the Muslims become more patriarchal post Independence, or is it that the status of the community as a whole, and the women in particular, has been reduced?

Further, is Islam to be blamed for this decline in the status of Muslim women, or do we need to look for the causes elsewhere? What would be the contribution of the polarised and communal environment that renders the Muslim woman powerless, not only against men of her own community but also against the society at large? Does pushing an entire community against the wall render it more patriarchal?

A survey of 4,710 women conducted by the Bharatiya Muslim Mahila Andolan found that many did not even known if they had a nikahnama at all, and around half did not know where their nikahnama was. Most of these women came from backgrounds of poverty and low literacy. So, even if they had the nikahnama, they could not read it. The finding corresponds with the 2011 census figures, which show around 48% Muslim women are illiterate.

It is widely known that Muslims are one of the poorest communities in India. Though poverty levels in the country are reducing overall, the rate is the slowest for Muslims. In urban areas, most Muslims live in ghettos.

Islam certainly gives women agency, but it can be actualised only when their socio-economic condition improves. We must address these core concerns instead of using triple talaq as a stick to beat the community with. Otherwise, even if a new law is brought against triple talaq, the cost of litigation, and fear of courts and lawyers will continue to drive deserted Muslim women to the qazis for the enforcement of rights granted by their scriptures. The change must come from within the community, and the society at large.