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SURIYA TARANNUM SUSAN

Marriage in Islamic law is of contractual nature. The standard marriage contract form is known as Kabinnama or Nikahnama . Unfortunately, people treat Kabinnama as a mere formal document registering a marriage and are ignorant about the scope of inserting stipulations in it. Islamic law has kept many avenues open for women to negotiate marital rights and obligations and insert relevant details in the Kabinnama . A perusal of relevant clauses of Kabinnama is given below.

Dower

Clauses 13-16 deal with dower. Dower is a strict financial obligation set by Shariah that has to be performed by every husband during marriage. There can be two portions in terms of time of payment of dower: prompt and deferred. The prompt part of the dower needs to be paid immediately and the deferred portion is payable on dissolution of marriage, or on the occurrence of any specified event. Any stipulation regarding non-payment of dower is void. Dower is payable even if the amount is not fixed at the time of marriage. An unpaid dower is equivalent to debt. Unless the wife forgoes her claim, it is one of the first things to be paid out of the dead husband’s estate.

Clause 15 mentions the amount of dower paid. Clause 16 puts forth if any property has been given in lieu of the whole or any portion of the dower.

Special conditions

Clause 17 is of huge ambit. It permits the incorporation of special conditions permissible under law and Shariah . The conditions can vary from fixing the amount of maintenance, place of the couple’s residence after marriage, wife’s right to work or pursue education, distribution of household chores, restriction on the husband’s right to remarriage, compensation if the husband pronounces a “no-fault” unilateral divorce, etc. A valid condition is legally enforceable. However, the conditions should be unambiguous. Anything requiring further interpretation will create difficulties in enforcement.

Delegated divorce

Clause 18 speaks about the delegation of the right to divorce to the wife, also known as Talaq-e Tafwid . This right can be delegated unconditionally or with conditions attached by the husband. Prominent scholar Mulla quoted Talaq-e-Tafwid as one of the most important modes of divorce, because it gives a Muslim woman the right to repudiate marriage without the intervention of the court. Unlike Khula , maintenance and dower need not be waived in delegated divorce.

Restriction in husband’s right to divorce

Clause 19 makes room for imposing conditions on husband’s right to divorce. The conditions can be diverse. Monetary compensation can be asked for if the husband exercises the right. In case the husband brings any imputation against the wife, the production of evidence corroborating the same can be demanded. The conditions in this clause should also be unambiguous.

Documents pertaining dower, maintenance, etc.

Documents concerning the minimum amount of maintenance, property (if the same was given in lieu of dower) if existing, should be presented with Kabinnama under clause 20.

Remarriage of husband

Clauses 21 and 22 mention the perquisites of remarriage. If the bridegroom has any existing wife, he needs to take permission of Arbitration Council pursuant to the Muslim Family Law Ordinance (MFLO), 1961. An application along with prescribed fee needs to be submitted to the Chairman of the Arbitration Council of the area where the existing wife is residing. If the existing wife consents for remarriage, it should be attached in writing with the application. The further proceedings will be as per section 6 of the MFLO, 1961.

If used properly, the intricacies of Kabinnama can be a safeguard against arbitrary divorce and ensure financial security to women.

The Writer is a Contributor at Law Desk, The Daily Star.

An application along with prescribed fee needs to be submitted to the Chairman of the Arbitration Council of the area where the existing wife is residing. If the existing wife consents for remarriage, it should be attached in writing with the application.