Asslamo Allaikum Wa Rahmatullahi Wa Barakatuh,
Re: Muslim Marriage Contract
The above-mentioned document is being put forth primarily by "The Muslim Institute" with the endorsement and backing of numerous Islamic organisations (listed on the front) to be used by Muslims as evidence for their Marriage.
It is written in the introduction (last paragraph/page 1) that the original draft was prepared by Mufti Brakatullah and he continued to lend his full support to the project, since Mufti Saheb is a graduate of Darul-uloom Deoband his support to this project places the Ulama of Deoband in the spot-light.
I would like to understand your position on this document and the legality of the Nikah done under the explanatory notes in particular according to the Hanafi Madhab:
1) Point 5/ Witnesses: According to Islamic law, a witness should be sane, adult and reliable. This requirement is gender/faith neutral. Hence, the Muslim Marriage Certificate requires to be witnessed by 'two adult witnesses of good character'.
Can an Islamic Nikah be witnessed by two women only?
2) Point 6/ Wali: However, parental or guardian's legal role finishes when children reach adulthood. Thereafter their role is optional and complementary. Hence the Muslim Marriage Certificate does not require the approval of the parents.
It may be correct that Nikah doesn't require the approval of Parents, but is this sound advice for youngster?
3) Point 7/Divorce: If the divorce is initiated by the wife, and the husband is found to be at fault by the arbiters she does not lose her Mahr. But if she cannot prove his fault, she has to return to her husband whatever Mahr amount she has already received.
If a woman cannot prove the fault of the husband, does she have to return the Meh'r ONLY or does she herself has to return into the fold of marriage?
Furthermore your opinion on the following matters from the terms of conditions section would be appreciated:
4) Obligations of the husband: In addition to the mutual duties and obligations, the husband undertakes not to:
a) abuse his wife/child(ren) verbally, emotionally, physically, or sexually
b) desert/be absent from the marital home for more than 60 days unless by mutual agreement
c) withhold economic contribution towards his wife/family
d) sexually transmit disease or other transmissible diseases
e) misuse /interfere with the wife's property
There is no mention of "knowingly or deliberately" in any of these clauses? Can such conditions be attached to marriage? And then be enforced upon the husband?
5) Special Conditions:
a) Both parties reserve the right to amend/alter the contract through mutual written agreement.
b) Both parties undertake to stay loyal to each other and never to engage in extra-marital affairs with the opposite or same sex.
c) The husband is not to enter into formal or informal nikah (Muslim marriage) contract in the UK or abroad with another woman, as it is unlawful under the laws of England and Wales as well as the Scottish legal system.
d) The husband is to procure separate/independent accommodation from shared or parental abode.
e) The husband delegates his power of divorce (talaq al-tafwid) to his wife.
Can conditions (a, b, c & d) be attached to marriage? And are they enforceable on husband and/or husband (where applicable)?
What is your opinion on condition (e)? Many Deobandi Ulama (e.g. Maulana Yaqoob Qasmi [Dewsbury] have been recommending this for a while due to problems with Muslims marrying Non-British citizens and due to the VISA process failing parties are then stuck in two different countries etc.6) Arbitration and adjudication:
a) In matters of child(ren), custody and property possession/division the decision of a British courts will be acceptable to both parties.
Are Muslims under obligation to accept this condition when the judgement of the court is contrary to the Shariah?
Please understand that my consideration are purely from an "enforcebale perspective and whether can be made into conditions for Nikah", anyone following the Sunnah should look after his/her spouse and fulfil their obligations to the best of their ability.
Jazakullah Khairun.
Abu Salih Muadh Khan
