Thursday, August 14, 2008

Pre-Nuptial Contracts in India

This wonderful news of two bold Muslim activists getting married in an unconventional ceremony did not make it to the front page of any Newspapers I read, but it made me very happy, and it has made history! "Besides, the nikahnama signed by the couple was also not the conventional one. It was drafted by Bhartiya Muslim Mahila Andolan, the NGO run by Naish Hasan, the bride. Why the new nikahnam? Because the conventional one had a male bias, Naish was quoted saying."

May I say hats off to the bridegroom, without whose support this would not have been possible :)

Three negative reactions:

1. There have been comments that it is a publicity stunt! I say, may there be many more such publicity stunts :)

2. 'Very surprisingly, the All India Muslim Women Personal Law Board president Shaista Amber has not welcomed the idea wholeheartedly. “Although women are known to have performed as Qazi and mufti in earlier times, it would be better if religious work is performed by men. Women can take over in the absence of men,” she said.' - What's wrong with this woman??? How is it better if religious work is performed by men? Hasn't History proved exactly the opposite!

3. 'The families of the bride and bridegroom had planned to have only women witnesses. But reportedly after the intervention of the woman member of All India Muslim Personal Law Board Begum Ikhtidar Ali Khan, a male witness was included.'
Why was a male witness essential? Sounds more like they wish it was them and not Naish Hasan who was getting the publicity. Very disappointing reactions.

I think one way to empower all Indian women is to make Pre-Nuptial Contracts legal, even mandatory.
I saw a grey haired, wrinkled, sparkling eyed Muslim woman from Lucknow, on TV ages ago, and she said something about Islamic weddings, that every Muslim parents and daughters should know (the ignorant and the illiterate don't, I guess) : The Nikah is a contract where a woman can insist on a clause that provides for her demanding a divorce without losing her 'meher'. She can add other clauses, like the husband would not remarry without first divorcing her, the husband will not have the right to pronounce triple talaq or that she would get the custody of their children if there is a divorce.
So we do not necessarily need a Universal Civil Code (which upsets a lot of people), we simply allow every Indian woman of every religion the right to have pre-nuptial contract.

Take a look at what Catherine Zeta Jones has done.

"Actress Catherine Zeta-Jones is rumored to have an infidelity clause in her prenup with Michael Douglas. Jones stands to pocket several million if Douglas is unfaithful. Since sleeping around isn't exactly rare in the acting world, this little clause would definitely motivate a fidelity doubletake."

And in UK...

Leading Islamic organisations and clerics in Britain have done much better. Hailed as the biggest change in Sharia law in Britain for 100 years, a married Muslim couple will now have equal rights. A husband will have to waive his right to polygamy, allowed under Islamic law, in the new contract which has been described as "revolutionary".

Quoting Samia Rehman: 'What better way to encourage social cohesion and tackle radicalisation than building families in a context of harmony and cooperation, where the rights of women are not only respected, but valued? Bringing up children in a positive, nurturing environment will do much to combat disaffection and alienation in future generations, and could help cut off the oxygen that fuels extremism.'

In India prenuptial contracts are not recognized by the law. 'One of the major objections to prenuptial contracts is the supposed sacred nature of Hindu marriage.' You can't get married while negotiating the terms of your divorce. But prenups are much more than divorce negotiations. I know many women helplessly hanging on to their marriages to straying husbands, in at least two cases the families and in one everybody knows that the husband is having an affair, but nobody can stop him. He does not want divorce, he wants the woman to sit at home and take care his parents while he has an affair with a girl young enough to be his daughter! And this is not his first affair. Catherine Zeta Jones' prenuptial contract has a clause that would interest these women, and maybe deter such men. (Obviously all this applies to wives also).

Well, so prenuptial are not about divorce they are about ensuring that the marriage vows are not completely disregarded or forgotten. Violence, alcohol addiction, infidelity are all condemned, but as of now you can only condemn. Prenuptial agreements can be deterrents in such situations, if not then at least the Contract can ensure some relief for the suffering party!

Again we will need legislation about the kind of terms the Contracts are permitted. 'Divorce if no male child within first two years.' or 'Divorce if no promotion.' will probably not be acceptable :)

Edited to add : I just read and loved this heartbeaking article by Nimmy who talks about Muslim women being deprived of their rights...all in the name of religion. It made me so sad, because it is easy to accept injustice if you are not intelligent, but if you are a smart, thinking woman it must be so terrible......Do take a look.

28 comments:

Thought Room said...

That was a wonderful post. I did not really know many of the information you let me have in this write up. Wants to make me do some more reading. Have to think a bit before opining here. Thanks.

nimis540 said...

Excellent article with all required references..Hats off mate!!!

It was really a honour to include my silly post in your great article..thanks again:)

Devaki said...

I understand where you are coming from IHM - perhaps what I am saying is not valid in the context of your post - but doesn't the idea of a prenup destroy the beautiful idea behind marriage? Its like we are going into one of the most important relationship of our lives with all exit options open and discussed and pre-decided. I don't like that thought somehow. I am just not that practical I think.

But you are probably right in the end - romantic notions and the real world rarely go hand-in-hand, and what these women have been suffering goes way beyond all this.

Albertina said...

This was insightful. But by the way, don't universalise about India. In Goa, as per the Family Laws, pre-nuptial contracts are allowed on matters relating to property. It's another thing that few people go in for them.

Indian Home Maker said...

@Devaki It's like taking a Life Insurance Policy or the writing of a Will. Most of us relate them to death. I think, quite on the contrary divorce can actually be avoided with prenups. Couples will enter into marriages with open eyes - knowing no extra marital affairs; alcohol; weight gain (!!! one celebrity contract had this clause :); violence etc will be accepted.
Monetary compensation can give security to the victim and pinch the offender. For e.g.a little restraint on the straying husbands I have mentioned would have made them behave :) As of now they know they can get away with anything, it is really tough, almost impossible, for their wives to leave them.
I just feel we should have a choice to sign prenups, and I also feel this can empower Muslim women, inter religion/inter caste marriages- as of now, Indian law does not recognize such contracts.
The standard compensation or maintenance that our law provides (-if I am not mistaken it is around Rs 500/ to 2000/...just read of cases in the News, I may be wrong here) pittance and does not deter anyone.

Indian Home Maker said...

@Nimmy Thanks, for letting me add your link here. I know anyone who reads your post will feel the way I did, it broke my heart and gave me goose bumps. Loved the honest, straight from heart plea that the post is.

Indian Home Maker said...

@albertina Thanks for this information, are this contracts admissible in the court? This is what blogging is all about, we learn all the time :)

Indian Home Maker said...

@thoughtroom Thanks :) I look forward to hearing your opinion!

@lankr1ta said...

I kind of agree with Devai about "agreements" destroying the relationship.
But I don't think other people have "relationships" in the pure sense. They need these contracts- to protect the very marriage, which by its pre-supposition of "relationship" can become a liability.

I am all for change of this nature.

Perhaps many many years later, when equality has been achived in marital relationships- equality of the sort that breaking the signed contract is deemed as "wrong" as can be, we can discuss the need ot have them.
Right now women need to be as protected as they can.

Manasa said...

..But what about the women in other countries???

Even though we talk of all these and blog about it, will this solve the real issues?

Though, many Muslim women are highly educated, they still practice wearing purdah and the no of kids a muslim family has is 3-4 times compared to a Hindu family.

You can delete this comment if you want to!

chandni said...

fantastic!

churningthewordmill said...

wonder how i missed reading that article in the ppr.. thanks for putting it up on ur blog..
i have mixed feelings about pre-nup agreements..on one hand i totally believe they can save a woman from lots of unnecessary trouble when and if she gets divorced..and on the other hand i sometimes think signing a pre nup is almost like believing that something is going to go wrong with ur marriage .not the best note to start ur marriage on...

Aneela Z said...

pakistan (with all its kindness impaired policies where women are concerned) has been accomodative where the nikah nama is concerned (this is after the introduction of the Family Laws circa 1960s)...so our nikah-namas have a clause re: under what cicumstances can the marriage be dissolved by both partners...if the husband is re-marrying has the consent of the first wife been attained (and she has to sign...twisted I know...but well...) and any other conditions..and there is article 18-b which asks whether the wife has the right to take a divorce (interesting use of language, men give a divorce, women take) but basically this means that she can take with her what she brought in and there are less dramas when it comes to dissolving the marriage...what is problematic is that there are still families who strike out this clause saying its a bad shagun at the time of nikah...leading to major problems when their daughters do want to take a divorce and they bring out the nikahnama and find out that she had not "taken the right"...I know my response is getting pretty long winded but for us the nikah nama is THE PRE-NUP as I keep on explaining to my friend/colleagues...I am in one of the "inter-community" marriages you refer to and I guess my use of the nikah nama was kind of a heart attack for some of the in-laws who were raised on the male-friendly Indian Muslim versions...it was kind of a kick that the Aus (read secular) civil ceremony had none of the safeguards that my "religious" certificate had..so I used my nikah nama as our pre-nup and assured how we would share custody of future kids, division of assets et al..I wanted to insert guarantees that the husband continues to make the morning tea but my mother thought I was stretching it too far...oh well...there is more but I guess this turning more into a post than a comment...apologies!!

D said...

I'm kinda with Devaki on this one. Pre-nups are not for people like me who believe in love. And if my husband's not going to cheat on me only because he has money to lose, I would rather not have him for a husband. I believe in emotional fidelity as much as physical.

Pinku said...

Hey!

Lovely post...thanks for all the info.

And as for prenuptial contracts I think they would help both parties to walk into marriage with eyes open...if the girl can put in the infidelity clause so can the man...basically allows one to not be duped later...am all for it.

Pinku said...

hey my last comment doesnt show...didnt think I wrote something offensive. Or did I?

Thought Room said...

I nearly ended up wanting to write a post.

Islam as I have been led to believe does not give women more status than that of property. With poly gamy a common practice, and divorce easily accessible, her economic security, becomes of paramount importance. So I can understand the need of a pre nuptial contract that ensures her and her children’s economic safety. Hinduism on the other hand does not easily accept polygamy, and divorce is not heard of. In an arranged marriage set up, even if the man and woman are incompatible, it was unheard of for them to divorce, because it was a social taboo. So even when a man and woman did not live as man and wife, they were man and wife in the society, and the woman enjoyed economic security, even if her man was unfaithful. Love and marriage are emotional concepts that have to be worked upon, and will never be perceived by every body in the same light. In today’s world where divorce is no longer a taboo, but where women’s rights has yet to catch up, I think this pre nuptial contracts will be a light at the end of the tunnel for many women, who have emerged from idealistic dreams and are caught in the web of life. When a man is not shy to ask for money for taking in a wife, a realistic woman, should ensure economic security as well.

Indian Home Maker said...

@@lankrita You summed it up so well, 'Right now women need to be as protected as they can." And with women also the children.

@Manasa That is why they need Prenups or a Model Nikahnama. Do you think they have any say in how many children they have? It's like my maid said, "Of course he beat his wife, can you believe it she burnt all the rice!" The social conditioning can convince us that all kinds of wrongs are men's rights!

@Chandni :)thanks!

@Mandira If only life was perfect, if only all marriages brought happiness, if only there was no harassment, cruelty, violence... this should be taken in a very matter of fact way, it's just something that's done. Just think why get married, if love is true then why not just live together? We need the protection and security of marriage,and pre nups :)
It should be a part of registered marriages, compulsory. Parents who do so much to protect their daughters can add this to the means of securing her a peaceful, secure life...

@Aneela z Thanks for this wonderful comment. And welcome on my blog :)
All marriages, no matter what we call them, are basically a kind of a pre nuptial contract, sacred, socially respected, very successful and extremely popular contract. I think all religions are misused by the unscrupulous and it is time we made them be interpreted in a way that benefits human kind, because that was all they were created for. Do visit again!

@D At your age I would have said the same thing! But now I have seen women suffering in unhappy marriages. If only life was perfect, if only all marriages brought happiness, if only there was no harassment, cruelty, violence... this should be taken in a very matter of fact way, it's just something that's done. Just think why get married, if love is true then why not just live together? We need the protection and security of marriage,and pre nups :)
There comes a time in life, when you have dependent children, and a husband who is equally responsible for their lives, should women allow their lives to be ruined if the husband turns irresponsible? Ideally this should not be required, but if it happens then any woman would be glad she has something to fall back upon.

@Pinku Hey...your comment got delayed because I was so, so neck deep into some other commitments ...glad you agree with the usefulness of Prenuptials for women AND MEN. It benefits all concerned I think.

@Thought Room Loved the way you summed it up - "...a realistic woman, should ensure economic security as well."

Aneela Z said...

Thanks for the lovely welcome, IHM!!
I re-read my post and I have to confess that I was a bit harsh on the civil ceremony...actually that had more "romance" and personal input (as in where it was conducted and both us were allowed to speak) whereas the nikah (read prenup had its good bits as it "insured"Gman's and my future) was a bit cut and dry...oh well. I guess the ceremonies like married life needs a balance of the romance and the " practical" cut and dry...and the rest you leave to God or the state!!

Aaarti said...

Woww, so much i dint know of!! Thanks for the wonderful post... am opening all those links to read up...

always knew muslim women needed something to protect them in a marriage, but dint know they had all these options!! awesome!!!:D

some see pre-nup as a way of anticipating something mite go wrong.. for others, its a safety net.. much needed!!!tho it does spoil the romance/mushiness, i agree to it...

Vinod_Sharma said...

Great, informative post. pre-nuptial contracts can a go a long way in giving women a safrty net.

I would like to add that such contracts can also be very helpful for men who are harassed and blackmailed, particularly by well educated and already empowered women. There are umpteen cases where such women have unscruplously exploited the provisions of law meant for the really helpless women. Pre-nupts will go a long way in stopping this reverse exploitation.

Vinod_Sharma said...

A great, informative post. Pre-nups can be of great to many women who are exploited. All marriages are not realised love stories. Even if they are, a pre-nup need not take the love out of a relationship.

In fact, a pre-nup can be a 'safety net' for men too. There are umpteen number of cases of educated, empowered women unscruplously and ruthlessly exloiting the provisions of law meant for actually exploited women to harass and blackmail men.

So, whichever way you look at it, all couples should be encouraged to sign such agreements.

Indian Home Maker said...

@Vinod Sharma Welcome to my blog:) And I agree with you, prenuptials can protect both men and women.

Roop said...

fabulous writing, IHM. I always look forward to read your writing. Not only it is informative but also written with passion and truthfulness. there is political correctness or dikhava per se. Brilliant. blogrollin ya... moved to wordpress now ... so doin it all over again. :) yep im cheatin on blogger heh.

Indian Home Maker said...

Aneela Z :)

Aaarti It's like taking a life insurance policy or getting an HIV test done, or matching of horoscopes or finding out if the guy has a secure job...at least women should have the option. Most romances are quite practical! Life is unpredictable...You get to choose...

Indian Home Maker said...

@Roop Compare blogger and wordpress for me...I am clueless about wordpress:(

Mampi said...

IHM, the blogroll failed me, duh ! Your post was long awaited so I didnt trust the blogroll i have on my page and just clicked on your name and came and lo, you had a new post a week back, and the silly me missed it.
Very well done post, as usual. Yes, Devaki's concern came to my mind too, but I agree that not all marriages are so romantic as to keep both the individuals happy. In the orthodox Indian context, a lot of marriages are still crude social contracts.
And Catherine Zeta-Jones is one heck of an intelligent woman.

nimis540 said...

Great constructive discussion here :)

"When a man is not shy to ask for money for taking in a wife, a realistic woman, should ensure economic security as well."A well said thought from Thought room..But i have to disagree that polygamy is not the main reason. I had a post in my blog about polygamy, as from my research, it seems that it is not widely practised in India..


Aneela Z says it right "what is problematic is that there are still families who strike out this clause saying its a bad shagun at the time of nikah..."..it happens to the larger part of community..Even when i not down the police or highway ambulance helpline number,whole of my family tease me "silly you"..How do we know we are not gonna have an accident ahead(God forbid, nothing such happens any day)All of us live in a fool's paradise thinking that "Nothing bad is gonna happen to me or my family"..Let it not happen,but why not take care..Same logic applies to pre-nup contracts..

Unless government or law board makes marriage registration ,with a common nikamma as we talked above,I don't think single women out there can insist on having such a contract,bcoz then we are outlawed as not being "shy, conservative Indian Muslim girl"..Damn it:)

Unless it is made law and common,even i myslef won't have the courage to do it,since i won't want to get labelled as arrogant,rude bla bla bla by my husband's family..So i pray that this registration with gobernment,signing of pre nup etc comes into practice soon..

P.S :Im married,didn't know all these..I even don't remember signing any paper during my marriage..gotta ask my father:)

Do visit my bolg..Good day to all