Qaradawi, who is the head of the Sunna Institute in Qatar, said that such a marriage — in which a woman specifically repudiates the rights given to her in Islam — is indeed Sharia-compliant. According to Qaradawi, some of the rights a woman can repudiate include, but are not limited to, her claim to inheritance, cohabitation or any sort of financial maintenance.
This re-envisioning of the nikahnama or the Islamic marriage contract is not exclusive to Sunni Islam. In Iran, a similar recasting of marriage took place almost immediately after the Islamic revolution when temporary marriages known as sigeh in Persian or mutah in Arabic were legalised. According to an article published on the Iranian website Alborz, sigeh marriages have since been made even easier under legislation passed by the first Ahmadinejad administration the new family law bill, passed despite strong opposition by Iranian women, not only allowed conditional polygamy and sigeh but also removed any requirement of permission from prior wives before the husband contracted another marriage. As the article's author Fatemeh Sadeghi points out, sigeh has been legalised even though there is no consensus among Twelver Shia jurists regarding the basis of its legality.
While sigeh in the Iranian Shia case or misyar marriage in the Sunni case may have varying juristic rationalisations, both represent a reconstruction of the Islamic marriage contract in a way that differs from the form traditionally prescribed. Varying explanations are offered in both the Sunni and Shia cases for such departures from the prescribed forms. In the Iranian case, government authorities are said to have attempted to cast temporary marriages as a means to give legal cover to extra-marital relationships and also enable women to contract such arrangements if they need a man to fulfil the function of a wali for travelling purposes.
Meanwhile, in his opinion justifying misyar marriages, Sheikh Qaradawi emphasises that they potentially allow women such as those of 'advanced age' to also be married when they waive conditions of financial support from their husbands. While the justifications differ, the fact remains that both forms of marriage suggest ways of ordering the marital relationship in society.
At the heart of this re-envisioning is the Islamic marriage contract or nikahnama, which is the basis of defining this new form of relationship between a man and a woman. The question posed by such an ongoing redefinition of Islamic marriage is whether similar opportunities for redefining marriage may also be available to women wishing to add more rights to their Islamic marriage contracts. According to Sheikh Qaradawi, “both parties have the right to add terms and conditions”.
The biggest obstacle in popularising such a project is the demotion of the nikahnama to a mere formality when it comes to the rights of the woman. Yet it is considered crucially important when it comes to the rights of the man. Simply put, Pakistani women, indeed Muslim women around the world, are discouraged from reading or stipulating the contractual terms. A host of excuses and superstitions discourage women from even perusing, let alone actually negotiating, the terms of the contract. Most nikah ceremonies involve the bride only nominally and primarily constitute the signing of papers whose content is arbitrarily determined or stipulated entirely by the groom's side.
For Pakistani women, the situation is replete with both irony and tragedy. It is ironic because while long negotiations may be held over inanities such as the number of guests each side can invite and the colour of the bride's outfits, crucial details such as the bride's ability to initiate a divorce, the amount of meher, or the custody of any future children are all considered matters too delicate to include in discussions between the families. In this way, the relative cultural powerlessness of women hinders tragically their ability to take advantage of the very open-endedness of the Islamic marriage contract to further the rights of Muslim women. While patriarchal lobbies in societies as disparate as Iran and Saudi Arabia have managed to recast the Islamic marriage contract in a way that reduces women's rights, dismally few overtures are being made in the opposite direction.
The task of changing the dynamics of marital relationships in such a manner that women have some equality within the relationship, are able to obtain a divorce as easily as men, maintain custody of their children, or continue their education or careers could all be achieved by their inclusion as clauses within the contract and in making the nikahnama a basis for serious consideration and negotiation between the bride and groom prior to marriage. It is true that in Pakistan, illiteracy and women's relative lack of social power may make such negotiations a challenge for the poorest of women. However, for the hundreds of thousands of educated Pakistani girls and their mothers, emphasis on ensuring that the nikahnama protects the rights of women can be considered both a religious duty and an activist imperative.
Much effort is expended in Pakistan on passing laws that have little on-the-ground effect on women's lives and are relegated to the darkest recesses of legislatures nearly as soon as they are passed. In making the nikahnama a crucial focus of activism, Pakistani women can use the contract's status as the determinative marital document within Islam to ensure a more robust set of rights for themselves. If cultural patriarchy has produced sigeh and misyar marriages, surely women can just as legitimately insist on a feminist nikahnama that provides more rights rather than less and reverses the disturbing trend of making the nikahnama an instrument of maintaining male dominance.
The writer is a US-based attorney teaching constitutional history and political philosophy.
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