Contents
Securing Gender Balance through Inserting Stipulations. 4
How gender balance through stipulation in marriage contract been introduced in different countries 7
Gender Balance in Marital life: Possibilities in Islam
Introduction
Marriage is a contract in Islam; not a pure civil contract, rather a contract of civil nature. One of the basic features of a contract is the insertion of terms and conditions. Therefore, a marriage contract also contains this fundamental feature. Muslim women are more vulnerable than Muslim men in several Muslim or non-Muslim countries. Due to some patriarchal traditions and conservative societal views, women are often suppressed and are less likely to protect their rights in a marital life. Thus, insertion of stipulations is more important for women than men to protect their interests.
The rights and duties of both husband and wife have been determined by Sharia Law where it states that, a husband has immense level of power over his wife’s movement. On the other hand, a wife is always obligated to be obedient towards her husband. The Sharia has also opened up a scope for obtaining gender balance and an option for women to control the excessive power of husband through inserting stipulations in marriage contracts. This paper will be focusing on how gender balance can be established in marital life by inserting stipulations in a marriage contract between spouses to be and examples of several countries ensuring gender equality with the use of stipulations in marriage contracts. Furthermore, it will also be addressing the situation of rights of women and gender balance in marital life in Bangladesh and how it can be improved.
Securing Gender Balance through Inserting Stipulations
Gender balance can be ensured by stipulating some fundamental rights of women in marriage contracts. Power to divorce, restricting husband from polygamy, equal or proportional division of property, right to reside in father’s residence after marriage are some of the stipulations that a woman can insert in her marriage contract before marriage and ensure gender balance in marital life.
1. POLYGAMY
Even though Islam permits a man to have four wives,[1] however, it contains certain conditions or special circumstances whereby which one can be able to have four wives. Islam neither promoted polygamy nor introduced it. Rather it restricted unlimited numbers of marriage by a man by limiting the number of having wives to only four. Polygamy interpreted by Islam is an exceptional circumstance whereas, monogamy is the rule.[2] In specific circumstances polygamy can be performed in Islam. In the Holy Quran it has been mentioned that:
And if ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; But if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess. That will be more suitable, to prevent you from doing injustice.[3]
However, sometimes the concept of polygamy is used as an excuse by men. Sometimes men treat this power as unconditional and as an absolute privilege. The Sharia mentions nothing regarding polygamy for women rather women are bound to stay obedient towards their husbands. And hence, the only option left for them regarding marriage is marrying one man at a time and being obedient. Thus, it creates gender inequality. However, a woman can restrict his husband from having another wife by inserting this clause in her marriage contract. If there is a stipulation in the marriage contract that the husband shall never entertain polygamy, the wife will have the right to repudiate the marriage if he breaches the condition. Furthermore, according to section 6(1) of MFLO, 1961,
No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under the Muslim Marriages and Divorces (Registration) Act, 1974.[4]
As per Bangladeshi statutory Law, a polygamous marriage shall be entertained after obtaining the permission from the Arbitration Council rather than from the existing wife. The Council can give permission even if the existing wife does not consent to the new marriage.[5] Therefore, by inserting a stipulation by the woman regarding the restriction of the man having more than one wife and regarding the pre-requisite of obtaining her permission before entertaining second marriage in the marriage contract will definitely ensure gender equality in their marital life.
2. WIFE’S RIGHT TO DIVORCE
The scope for dissolving a marriage by a wife is nearly impossible unless wife sacrifices or compromises her dower or some amount of monetary compensation or seeking help from judiciary.[6] However, if the husband delegates the power of terminating the marriage to the wife only then the marriage can be terminated by her.
The delegated power of terminating the marriage from a husband to his wife is called Talaq-e-tafwid. The only way of acquiring this power is by inserting a stipulation regarding the delegation of power to divorce in the marriage contract. In Sainuddin vs. Latifannessa Bibi case, the husband agreed with the stipulation in their marriage contract of not marrying a second wife without the consent of his first wife. The first wife left her husband since he breached the stipulation of the contract by marrying a second wife. The Court accepted the validity of the dissolution of marriage by the first wife and dismissed the suit of the husband regarding restitution of conjugal rights.[7] The reason behind the verdict was that the contract was valid and the husband violated a stipulation of a valid contract.
3. RESIDENCE
Another kind of stipulation a wife can insert is the place of residence. The wife can add a clause in the contract that her husband will not make her leave her home. As mentioned above, men have immense power over the movement of his wife. Hence, he has an absolute power of choosing the place of residence according to his will.
Here comes the question of “wife’s obedience”. However, the Jordanian Law of Personal Status, 1976 states that the husband can choose the place of residing but also added that as long as there is no stipulation to the contrary in the marriage contract.[8] Therefore, a woman can refuse to go with her husband by using this stipulation. And if he refuses to give her maintenance due to being disobedient, the wife can use this stipulation as a defense and can even repudiate the marriage contract if the husband does not comply with the stipulation. Therefore, restricting the immense power of men by inserting stipulation regarding place of residence can also secure gender balance in marital life.
4. PROPERTY REGIME
Generally a wife gets 1/4th of property if the deceased leaves no child and 1/8th if there is any child.[9] However, a wife gets nothing when the marriage is dissolved. Stipulations regarding division of property acquired during the time of marriage period can ensure a better economic life for women. The Moroccan Law (Mudawanna), 2004 has identified property regime for women where the spouse shall be entitled to get a portion of his whole property which has been acquired during their marriage. Since the property was acquired by the effort of both the husband and the wife hence, the wife is surely entitled to get a portion when the marriage dissolves. Although the wife might not show her effort directly but for the level of support and assistance she accorded during her marital life acquiring those property, she unquestionably deserves a portion of those property. Iran has also mentioned about the stipulation regarding wealth acquired during marriage stating that it will be divided in half on divorce.[10] This scope has also been accepted by several other countries. Hence, deciding property regime through inserting stipulation in marriage contract will protect the economic interest of women and keep a balance between both the parties.
How gender balance through stipulation in marriage contract been introduced in different countries
India is one of the countries which had significant reformations and is still trying to reform the existing conservative religious views in the country. Starting from Mohammad Ahmed Khan vs Shah Bano Begum (1985) to several other verdicts the Supreme Court upheld the women’s rights and still trying to pursue gender balance in the country. From the ancient period when women interests were not recognized, maintenance was not an absolute right, thus marriage contract used to play a vital role in that regard. In the case of Muhammad Muin-ud-Din vs Jamal Fatima 1921, maintenance was given for longer period only if it was stated in the marriage contract.[11] In Muhammad Ali Akbar vs Fatima Begum 1929 the Lahore High Court upheld the agreement between a husband and his wife where the husband accepted the stipulation of not taking second wife and the first wife shall be entitled to utilize the power of Talaq-e-tafwid or reside separately.[12] Contract pursuing gender balance with the help of inserting stipulations is considered to be an evidence regarding dissolution of marriage by the wife, restituting maintenance or any other right of women nowadays in India.
In Pakistan, marriage contract and stipulations given by the wife or both the parties have been recognized as a significant document. In Muhammad Zaman vs Mst Irshad Begum, 1967, the Lahore Court rejected the argument by the husband that the marriage contract was void because it opposed to public policy. However, rejecting the husband’s suit for restitution of conjugal rights, the Lahore Court was clearly enforcing the terms of the contract entered into by the spouses. If there were no agreement between the spouses, the wife would never have been able to successfully obtain maintenance from her husband while living separately.[13]
Sudan has taken many initiatives eradicating conservative perspectives of Islam through reformation in Sudan’s Personal Law. For the purpose of improving the condition of women in public sphere or even in military, Sudan is emphasizing on equal rights between men and women.[14] A woman can give her consent to a marriage contract made by her wali or guardian. She can even refuse to consummate the marriage through court procedure if any of the condition is violated. However, the Alternative Family Law (2009-2012) of Sudan protects the women’s interests and for eradicating the ambiguous duty of women being obedient suggested some changes. For example, a stipulation to choose her husband and making a contract of marriage without the consent of any male guardian and a stipulation regarding wife’s right to divorce on equal terms in judicial method are two most unique practices in Sudan.
In Egypt, marriage contract with stipulations was considered to be pessimism or a negative thing. The male-dominated society and the patriarchal customs, traditions influenced the religious aspect of Egypt. But in recent years, marriage contracts including stipulations are considered appropriate unless it is prohibited in Islam.[15] Moreover, the latest format of marriage contract in Egypt included a white piece of paper for inserting stipulations by the spouses in the marriage contract.[16] And thus, the interests of women can be protected easily by adding the necessary terms and conditions in favor of them to ensure gender equality.
The Personal Status Code in Tunisia is based on Quran and Sunnah and focused on gender equality. Tunisia has mentioned about marriage contract stating that the spouse can add anything in their marriage contract as stipulations. The marriage can be nulled if any of the stipulation is not implemented.[17]
Morocco has also modified their codified law where they inserted stipulations forbidding polygamy and corroborated that the wife has the right to terminate the marriage due to polygamy.[18] Nevertheless, the Moroccan Law has mentioned about a scope where the spouses can decide about the property regime.[19] The women will get a portion of wealth acquired during their marital period.
In Bangladesh, there is no specific law regarding insertion of stipulations in marriage contract. However, there is a form recognized as marriage contract named as the Kabinnama[20] where the spouses can insert appropriate stipulations. Column 17 contains an immense scope for obtaining gender balance since it mentions about any special conditions if the husband or wife wants to insert as valid terms of marriage. Column 18 talks about the probability of delegated power of divorce to the wife from husband. These columns have options of inserting stipulations in favor of the wife especially in column 17. However, Bangladesh as a male-dominated country, discourages women from adding stipulations and women are certainly unaware of the column or even the idea of inserting stipulations in marriage contracts in Bangladesh. If the people of Bangladesh utilizes the marriage contract or the Kabinnama appropriately, the possibility of securing gender balance will surely be increased.
Recommendations
Islam always refers to gender equality. The customs, traditions and patriarchal views of several countries tend to demean the position of women in Islam. However with certain necessary steps women can acquire their rights. For instance, stipulation regarding divorce, polygamy, dower, maintenance, study, work, separate residence or any other conditions which are suitable for the wife can be inserted.[21] Through the binding effect upon these stipulations and the whole contract, gender balance can definitely be ensured in Islamic world. In the context of Bangladesh, some important recommendations can be given for protecting women rights in marital life. Those are:
- Making the female population aware of the column 17[22] of Kabinnama[23]
- Stipulation can be inserted in column 18[24] where delegation of power to divorce by wife is under a condition. The wife can give the condition like,
“If there is any difference of opinion between the spouses, the wife shall have the right to dissolve the marriage”.
- Making people aware of the scope of inserting stipulations regarding the protection of female rights
- Legal definition and specific provisions regarding marriage contract and insertion of stipulations in the contract should be made
- Attaching an annexure regarding the list of stipulations with the marriage contract or Kabinnama
- The Quazi will read out before the marriage that women have the right to insert stipulations, because most women in our country are unaware of this fact
By using the opportunity of insertion of stipulations in marriage contract, Muslim women can effectively ensure gender balance in their marital life.
Conclusion
This paper is to accumulate the important aspects of marriage contract with regard to protecting women interests and to establish a better atmosphere for the women by guaranteeing gender balance in their marital life. Islam has always emphasized on justice. Hence, gender equality by ensuring women’s rights, principles and justice is one of the core elements of Islam. Muslim women should utilize the scope of inserting stipulations in marriage contracts for protecting their rights. Bangladesh as a patriarchal country needs to take more initiatives to ensure gender balance in marital life.
Bibliography
- Amira Mashhour, ‘Islamic Law and Gender Equality: Could There Be a Common Ground?: A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt’ [May, 2005] Vol. 27, No. 2, pp. 562-596
- The Holy Qur’an Sura 4, Verse 3
- Lynn Welchman, ‘SPECIAL STIPULATIONS IN THE CONTRACT OF MARRIAGE: LAW AND PRACTICE IN THE OCCUPIED WEST BANK’ [1994] pp. 55-77
- Michelsen Institute, Family law reform in Sudan: Competing claims for gender justice between sharia and women’s human rights (Samia El Nagar and Liv Tønnessen, CMI report, number 5, December 2017)
- Narendra Subramanian, ‘Legal Change and Gender Inequality: Changes in Muslim Family Law in India’ [2008] Volume 33, Issue 3, 631-672
- Lucy Carrol, ‘Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife’ [1982] Vol. 16, No. 2, pp. 277-309
- Moroccan Code of Personal Status, 1958
- Dr Muhammad Ekramul Haque, Muslim Family Law Sharia and Modern World (June 2015) 133
- The Muslim Marriages and Divorces (Registration) Rules, 2009
- Muhammad Jawad Mughniyya, ‘Stipulation of Conditions by the Wife’ (Marriage according to the Five Schools of Islamic Law) <https://www.al-islam.org/marriage-according-five-schools-islamic-law-sheikh-muhammad-jawad-mughniyya/stipulation-conditions> accessed 12 April 2020
- ‘Stipulations in Marriage Contract’ (Muslim Marriage Guide) <https://www.muslimmarriageguide.com/stipulations-in-marriage-contract/> accessed 12 April 2020
- Sardar M.A. Waqar Khan Arif, ‘Contractual Stipulations in Muslim Marriage Contract with Reference to Classic Islamic Law and the Case Study of USA’ (International Islamic University, Islamabad, Department of Law, 1 February 2016) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2723540> accessed 15 April 2020
- Library of Congress, WOMEN IN ISLAMIC SOCIETIES: A SELECTED REVIEW OF SOCIAL SCIENTIFIC LITERATURE (Priscilia Offenhauer, November 2005)
- United Nations University World Institute for Development Economics Research, Gender, Islam and law (John R. Bowen, WIDER Working Paper 2017/152, July 2017)
- Ewa Strzelecka, ‘Gender and Islam in Development Policy and Practice in Yemen’ (2013) Arabian Humanities <https://journals.openedition.org/cy/2062> accessed 12 April 2020
- Justin Jones, ‘Towards a Muslim Family Law Act? Debating Muslim women’s rights and the codification of personal laws in India’ [2019] pp. 1-14
- Islamic Relief, AN ISLAMIC HUMAN RIGHTS PERSPECTIVE ON EARLY AND FORCED MARRIAGES Protecting the Sanctity of Marriage (2018)
- Rethinking Muslim women’s equal rights: faith, property and empowerment (M. Siraj Sait)
- Dr, Muhammad Ekramul Haque, Islamic Law of Inheritance Rules and Calculations (2009)
[1] The Holy Qur’an Sura 4, Verse 3
[2] Amira Mashhour, ‘Islamic Law and Gender Equality: Could There Be a Common Ground?: A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt’ [May, 2005] Vol. 27, No. 2, pp. 562-596
[3] The Holy Qur’an Sura 4, Verse 3
[4] Muslim Family Laws Ordinance, 1961 s.6(1)
[5] Dr Muhammad Ekramul Haque-Muslim Family Law Sharia and Modern World (June 2015) 222
[6] Ibid.p,3
[7] Lucy Carrol, ‘Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife’ [1982] Vol. 16, No. 2, pp. 277-309
[8] Lynn Welchman, ‘Special Speculations In the Contract Of Marriage :Law And Practice In The Occupied West Bank’ [1994] pp. 55-77
[9] Dr, Muhammad Ekramul Haque, Islamic Law of Inheritance Rules and Calculations (2009) 50-51
[10] Dr Muhammad Ekramul Haque, Muslim Family Law Sharia and Modern World (June 2015) 133
[11] Narendra Subramanian, ‘Legal Change and Gender Inequality: Changes in Muslim Family Law in India’ [2008] Volume 33, Issue 3, 631-672
[12] Lucy Carrol, ‘Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife’ [1982] Vol. 16, No. 2, pp. 277-309
[13] Ibid
[14] Chr. Michelsen Institute, Family law reform in Sudan: Competing claims for gender justice between sharia and women’s human rights (Samia El Nagar and Liv Tønnessen, CMI report, number 5, December 2017)
[15] Amira Mashhour, ‘Islamic Law and Gender Equality: Could There Be a Common Ground?: A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt’ [May, 2005] Vol. 27, No. 2, pp. 562-596
[16] Dr Muhammad Ekramul Haque, Muslim Family Law Sharia and Modern World (June 2015) 114
[17] Ibid
[18] Moroccan Code of Personal Status, 1958
[19] Dr Muhammad Ekramul Haque, Muslim Family Law Sharia and Modern World (June 2015) 133
[20] The Muslim Marriages and Divorces (Registration) Rules, 2009
[21] Dr Muhammad Ekramul Haque, Muslim Family Law Sharia and Modern World (June 2015) 137-138
[22] Ibid p. 535
[23] The Muslim Marriages and Divorces (Registration) Rules, 2009
[24] Ibid.536