MUSLIM WOMEN'S IDEA OF MARRIAGE - BMMA DRAFT LAW PROVISION ON SOLEMNIZATION OF MARRIAGE

DAY 19

SOLEMNIZATION AND REGISTRATION OF MUSLIM MARRIAGES

BMMA spent 8 years to prepare this draft law. Today onwards we will see the various provisions of the draft law. Starting with marriage today. 

What are the conditions for the solemnization of Muslim marriage according to BMMA's draft law?

1. A marriage between any two Muslims may be solemnized under this draft law [DL], if at the time of the marriage the following conditions are fulfilled, namely: 
2. Every marriage solemnized under this  DL shall include payment of Mehr at the time of the solemnization of marriage which is the groom’s annual income. 
3. Express and unambiguous consent of both parties is necessary before a marriage contract becomes valid. This consent must have been obtained without undue influence, coercion and fraud. 
4. The bridegroom has completed the age of twenty- one years and the bride has completed the age of eighteen years authenticated from reliable proofs or records of the date of birth. 
5. The parties are not within the degrees of prohibited relationship 
6. In the subsistence of one marriage a man cannot marry another woman. 

What is the procedure for solemnization of a Muslim marriage? 

1. For the solemnization of the marriage, the parties have to approach a qazi 
2. The parties have to send a letter of application to a qazi 30 days before the date of solemnization where either bride or groom is residing for the last 30 days. 
3. The procedure of solemnization would include ijaab [proposal of the marriage] and qubool [acceptance of the proposal]. Both the proceedings of ijaab and qubool must happen in the same sitting in the presence of witnesses and the qazi. 
4. Nikaahnama must be filled up and original, true copies of the same is to be provided to both the parties. 

What are the responsibilities of the Qazi?

1. Must take separate application from both the parties 
2. Must ensure that both parties have fulfilled conditions linked to solemnization of marriage as given above
3. Must demand from both parties' authentic proofs pertaining to dates of birth and their place of residence and retain copies of the same after having them personally authenticated
4. Must ensure that the bride consents to the marriage without pressure or coercion
5. Must ensure that the bride knows and consents to marry the bridegroom if his previous wife has been divorced or deceased and has children from the said marriage
6. Qazi must solemnize marriage by filling up the nikaahnama which must be signed by her/him, the contracting parties and two witnesses from each party present at the time of marriage
7. 2 original copies of the certified nikaahnama must be given to both the parties
8. Qazi must maintain a proper record of the marriage in its centre. 
9. Qazi can act as an Arbitrator if it is also registered under this DL as an Arbitrator 
10. Qazi must ensure that the parties submit the divorce papers of previous marriage if divorced and death certificate in case of the death of the previous spouse. In case where the party is marrying for the first time, it must submit to the qazi affidavit stating that it is his/her first marriage.
11. Qazi must meet the parties to the marriage separately as well as together to ensure that the parties know about each other's background and also to ensure their willful and free consent to the said marriage. 

What should be an ideal mehr amount which the bride should get at the time of marriage?

1. The minimum amount of mehr shall not be less than his one full annual income which could be his income from property, business, agricultural or commercial land and salary. It can be given either in cash/gold/kind. 
2. If income/salary cannot be determined then the mehr can be fixed based on the minimum wages of his occupation where he is residing. 
3. The mehr must be prompt and must be paid to the bride at the time of the marriage. 
4. The mehr is the wife's exclusive property to be used by her at her absolute discretion without any manner of interference from parents and relatives of both parties. 
5. The wife cannot be forced or compelled or emotionally pressurized to forego/return the mehr anytime during the subsistence of marriage or after divorce or widowhood. 
6. The groom/husband and his family cannot demand dowry nor can they casually and innocently express their desire for dowry before or during the subsistence of marriage. 

Where and how should a Muslim marriage be registered? 

1. Immediately on solemnization of the marriage the signed nikaahnama should be registered by the parties at the local state bodies like the Panchayat, Block Office, District office, Ward Office or Marriage Registrar Office under the relevant marriage registration Act. 
2. The parties must ensure that they each have true, original copies of the registration certificate. 
3. The qazi may take additional responsibility of registration of the said marriage if the parties wish so. 

What is the responsibilities of the witnesses to the marriage?

The witnesses must sign the relevant documents and ensure that the party to which they are supporting as witness must have the relevant documents, which is; 

1. Death certificate if the spouse of the party has died 
2. Divorce papers if the party has been divorced 
3. Whether the party they are supporting is previously married
4. Whether the parties are violating any law of the land 

When does a marriage become irregular or Fasid? 

A marriage solemnized shall be considered irregular: 

1. If two adult witnesses are not present at the time of nikaah. 
2. If the marriage has been solemnized during the period of iddat 
3. If the marriage has been solemnized without the qazi 
4. If the marriage is not registered as mentioned in this Act 
5. If the amount of mehr is not paid 

How can this irregular marriage be regularized?

All marriages termed irregular in this DL can be regularized. The rights of women and children accruing from the said marriage are not affected if the marriage is not regularized. The regularization process would include: 

1. Approaching a qazi along with witnesses and attaching affidavits from all witnesses affirming the said marriage. 
2. Approaching a qazi after which the parties will give an affidavit stating that the period of iddat is over deeming their marital status legal under this Act. 
3. Approaching a qazi and resolemnise the marriage with a fresh nikhanama 
4. The parties themselves should take their filled up nikhanama along with an affidavit and register it with the authority as specified in this Act. 
5. Payment of mehr as promised. 

When do we consider a marriage as invalid?

Any marriage solemnized under this Act shall be an invalid marriage: 

1. If the consent of either party to the marriage contract has been obtained by force, coercion, undue influence or fraud. 
2. If the bride and groom are within the prohibited degrees 
3. If the bride and groom have not completed 18 and 21 years of age respectively 
4. If the husband has entered into another marital contract in the subsistence of a marriage contract, the second marriage will be an invalid marriage. 

What will happen if an invalid marriage is solemnized?

1. In case of underage marriage the provisions of The Prohibition of Child Marriage Act, 2006 will apply. 
2. In any of the above four incidents of invalid marriage the qazi who has solemnized the said marriage will be penalized. 
3. The rights of women in any of the above four incidents of invalid marriage must be protected. 
4. In case of polygamy by the husband, under this DL it should be punishable by punishment or fine or both or alternative 494 IPC must apply. 

NATIONAL STUDY ON POLYGAMY MUSLIM WOMEN’S VIEWS AND EXPERIENCES

Summary Of Findings

NATIONAL STUDY ON POLYGAMY

MUSLIM WOMEN’S VIEWS AND EXPERIENCES

Our survey indicates that being in a polygamous marriage causes tremendous emotional trauma to the woman apart from economic and other hardships. It effects the woman’s sense of self respect, self-esteem and dignity as a human being. The issue is compounded by educational and economic deprivation as they are in no position to raise their voice and demand fair treatment. Most wives in polygamous unions have low education and income status. 77% first wives are dropouts below SSC, 43% do not have an income. Further, a large proportion of women in such arrangements – about 52% - have an income below Rs 10,000. This indicates that women in these marriages are deprived of economic independence. In 45% cases the age of the husband at the time of the 1^stmarriage is between 21 and 26 years and in 38% of the cases the age of the husband at the time of the second marriage is between 21 and 26 years. With only 9% of the husbands having studied between graduation and post-graduation, it can be concluded that the educational level of husbands in such unions is also quite low. Another important piece of data that has come out of this survey is that in 49% of the cases where the woman happens to be in a polygamous union, the parents have selected the spouse. This shows the relatively little autonomy that women have within this institution and makes a mockery of the Quranic provision of consent. It also highlights that assumptions about free, autonomous choice of spouses in polygamy is not true.

It is clear that women hardly have the same bargaining power as men when it comes to choice of spouses, especially in instances of polygamy. An overwhelming number of women said they felt a sense of betrayal, loss of dignity and loss of self-respect when the husband remarried despite her being the wife. The survey highlights severe mental health issues that plague the women. 50% of the women said that they were depressed most of the time. They also reported other symptoms of depression such as lack of adequate sleep (43%), frequent aches and pains (33%), not feeling good about themselves (33%), and even a tendency to self-harm (43%). An overwhelming number of women (84%)  felt that polygamy should be outlawed. A large number of them (73%) even said that the husband who takes a second wife should be punished.

Under- age marriages:

o    29% girls [ who are 1^stwives] and 18%  [ who are 2^ndwives] were married below the age of

18

Low education:

o    71% second wives are dropout below SSC, 20% illiterate, 4% graduate

o    77% first wives are dropout below SSC, 11% up to SSC, 7% graduate, 1% PG

Poverty:

o    42% first wives have no income at all; 40% have an income of below Rs 1000

o    45% second wives have no income at all; 34% have an income of below Rs 1000 

 Wife’s permission not sought:

o    Only 23% husbands informed the wife about their second marriage

o    72% women learnt about husband’s second marriage through family or external sources like neighbours or friends.

o    90% wives’ said their permission was not sought by the husband

Reasons: the women narrated the kind of reasons provided by the husbands as follows:

o    35% of the husbands gave the reason that they fell in love with someone else o 11% gave the reason of no children

o    6% said they remarried to support a widow or divorcee o 12%  said their parents asked them to o 4% said their wives were bed-ridden o 10% blamed their first wives o 6% remarried because they wanted sons

o    11% were not happy with her body (skin colour, too fat/thin)

45% of the husbands threatened their first wife with divorce if she resented his second marriage

Role of Qazi Court

o    29% of the women approached a Qazi for redress after their husband’s  second marriage

o    42% of the women were told to adjust because it is allowed in Shariat o 10% said it was his right in Islam o 22% were asked to take Khula

o    26% were asked to file a case against the husband if they were unhappy

Relations  after Second marriage

o    41% of the husbands do not live with her anymore, o 25% husbands spend less time with her,

o    16% said the frequency of fights has increased,

o    15% husbands do not at all care for the first wife

Monthly maintenance

o    40% of the husbands provide first wife’s monthly maintenance, o 47% do not provide monthly maintenance,

o    13% husbands provide monthly maintenance irregularly

o    44% of women started working after the husband remarried

Housing status

o    41% moved to their parent’s house, o   35% live in the same house as before, o            14% live on their own in a rented house

o    10% live in a new house provided by their husband

45% women said they are tolerating the second marriage because they have no other option and they are concerned about their children

Over 50% women suffer from mental trauma such as depression, self-blaming, suicidal tendencies

84% women feel that polygamy should be made illegal

73% women feel that husbands indulging in polygamy should be punished.