Noteworthy changes in the nikahnama include an overt commitment to equality between men and women. This is translated into actual stipulations by: doing away with the wali requirement and enabling Muslim women to contract their own marriages, delegation of the right to divorce or talaq-e-tafweed — making it possible for either party to initiate divorce proceedings without affecting their financial rights under the contract, and forbidding polygamy both in the UK and abroad.
The new nikahnama has been endorsed by several leading Muslim organisations in the UK including the Imams and Mosques Council (UK), Muslim Council of Britain, The Muslim Law (Shariah) Council UK, Utrujj Foundation and The Muslim Parliament of Great Britain.
According to the authors, one of the purposes of the document is to bring Muslim family law in Britain in line with the advances in sharia jurisprudence that have been legislated in other parts of the Muslim world.
Indeed several of the progressive interpretations of sharia included in the new document, which its authors are pushing to be used in every Muslim marriage in Britain, have precedent in other Muslim countries.
In Moroccan family law, the requirement for a wali has been abandoned and in Algeria it is optional. In addition, in both Pakistan and Bangladesh (which follow Hanafi jurisprudence), a woman has the right to talaq-e-tafweed and can ask for a divorce without jeopardising her financial interests as pursuant to the document.
The requirement to waive the right to polygamy — a criminal offence in Britain — also follows interpretations of sharia which recognise that the perfect justice that is demanded to be applied between wives is a human impossibility thus invalidating the premise of polygamy itself.
The development of a uniform document and its endorsement by a large number of Muslim groups also represents an effort by British Muslim leaders to obtain acceptance for Islamic marriages. Currently, Islamic marriages conduced by an imam are not recognised in Britain, with the result that most British Muslims have to contract two marriages, one with an imam and another in civil court.
The result has been that many Muslim marriages are not registered with civil authorities causing all sorts of problems for spouses that can be denied immigration and state benefits because of their lack of official status.
The hope is that this uniform written document will make inroads toward having the British Government recognise Islamic marriages as a form of legal marriage without requiring Muslims to go through two different ceremonies. Further, it will put an end to de facto Islamic marriages that are promulgated without a written nikahnama and with little negotiation regarding the rights of the spouses or the obligations of each party in the case of divorce.
However while the document itself has been lauded by some, many critics coming from disparate ends of the ideological spectrum have blasted the document. On one side are critics of multiculturalism who fear that recognition of the document, in paving the way to a separate legal system using sharia law for British Muslims, will further alienate them from society and be an attack on the idea that all British citizens have to follow one law.
Prominent among them are those that castigated the Archbishop of Canterbury Rowan Williams for suggesting that sharia has a place in British society, since other religious minorities in Britain have the right to use religious law in alternative dispute resolution.
Critics of multiculturalism see the effort as a means of further dividing mainstream and minority cultures. Posing as “progressive nationalists”, these critics, who wish to deny any accommodation to British Muslims, have arguably been successful at wrapping the more ugly faces of British xenophobia and unwillingness to recognise the emerging diversity of Britain under the seemingly neutral and legitimate guise of preserving a core British character necessary for national cohesion.
The other side up in arms over this new nikahnama is conservative British clerics that see any institution of gender equality within Islam as a threat rather than a cause for celebration. These include prominent British clerics such as Shaykh Haytham Haddad who in a virulent rant (easily accessible on YouTube) denounces the new nikahnama as an illegitimate pandering to kufr, designed to change Islam to dictations of a Western environment.
Designed to elicit fear and apprehension, Shaykh Haytham peppers his sermon against the contract liberally with rhetorical allusions to instil repulsion and a parental fear of loss of all moral control over children. He says “what will you do when your daughter comes home late at night with a man and introduces him as her husband and says she has slept with him?”
Another critique of the document has been made by Shaykh Abu Yousuf Tawfique Chowdhury, director of Al Kauthar and Mercy Mission, who insists that “the contract lowers the status and position of the husband treating him constantly with mistrust whereas the position of husband is one of tremendous right over the wife”.
In terms of substantive progress, the new nikahnama should be celebrated as a form of consensus among British Muslims that recognises the urgent necessity of reforming Sharia towards gender equality. As a woman I can’t help but wonder whether the motivation toward gender equality arises from a true desire amid these groups to give Muslim women equal rights or the strategic effort to gain recognition for Islamic marriage — hence their institutions — by the British Government.
Despite my scepticism regarding motivations, the fact remains that institutionalising gender equality in Islamic marriage contracts the Muslim Institute has enacted a strategic victory in terms of group rights claims.
The onus now lies with the British Government which can no longer use the argument of protecting Muslim women in its refusal to recognise Islamic marriages.
Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at email@example.com
Source: Daily Times, 18/10/2008