They say “being married is the nicest thing to be...” , but the increasing divorce rate in Pakistan today presents a different picture. Whereas for some divorce may be a devastating experience, for others it surely turns out be reconstructive. In either case, once couples have split up, what becomes more important is the terms on which their marriage ended and how they plan to decide financial matters or other pending issues.
A sound understanding of the Pakistani marriage contract (The nikah-nama) can help both parties get their legal rights in the event of divorce. If the nikah-nama was filed carefully, it would help them avoid unnecessary family pressures attempting for out of court settlements as well as the much dreaded and tedious court litigation. Furthermore, even in the event that they do end up in the court, this two-page document, will no doubt be, one of the most important aspects bearing influence on the strength of the claims put forward by each party.
For these reasons and for many others, one cannot and should not, overlook the importance of this document.
One of the most important clauses of the nikah nama are those pertaining to the age of bride and bridegroom at the time of marriage. In Punjab, Khyber Paktnkhwa (KP) and Balochistan, the minimum age for a girl to get married is 16, and for a boy it is 18. In Sindh, the law is now indiscriminate as to having the same legal age of 18 years for both the genders.
Another important clause in the nikah nama that the parties should be mindful of is the one stipulating the haq mehr – an obligatory gift given to the wife by the husband in consideration of marriage. When filling out the marriage contract, it is absolutely essential that the form in which the haq mehr is to be paid is clearly specified. Mehr could be in any form, ranging from cash to property, from gold to even the groom agreeing to fund the bride’s higher education after marriage. If the clause about the form and amount/precise quantification of mehr is left empty, then an amount keeping in mind how much mehr was given to wife’s sisters’, her mother etc may be set. Similarly, it is equally important that the time at which the mehr is to be paid i.e. whether at the time of the nikah (in which case this mehr would be ‘muajjal’) or upon the happening of a certain event (in which case the mehr would be mehr ‘muwajjal’) is clearly specified too. In the absence of such specification, mehr would be payable on demand to the wife.
The most ignored clause of the nikah nama – which more often than not is crossed out without even consulting the bride – is the one allowing her to reserve her ‘right of delegated divorce’ for herself. The ‘right of delegated divorce’ (talaq-e-tafweez) allows the bride to divorce her husband exactly in the same manner as that exercised by her husband. Hence, if this clause is struck out, the only way a woman is allowed to end the marriage contract (on her own accord) is by either filing a suit for Khula or one for dissolution of marriage under the Dissolution for Muslim Marriages Act 1939, both of which necessitate her going to the court.
The bride may be given the option to exercise this right of divorce ‘with condition/s’ or ‘without any condition/s at all’. Meaning that if the woman wants to retain this right unequivocally, then it is essential this is clearly mentioned while filling out this clause in the nikah nama.
Interestingly, just like the women’s right to divorce her husband (on her own accord) can be regulated in the marriage contract, the husband’s right to divorce his wife can be curtailed in a similar manner too. The wife can, for example, place conditions upon the husband’s right to divorce her. She may ask for financial compensation if the husband divorces her after they have children, she may even claim alimony if he remarries without taking her permission etc.
Since the nikah nama is like any other civil contract, the parties may insert any terms and conditions in it, as they so please. The only caveat here is that the clause entered should not be in contravention of law or public policy. Conditions detailing who will get the custody of children in case of divorce, the exact amount of maintenance to be paid etc ; anything and everything as long as it does not contravene the very institution of marriage, may be added in the nikah nama.
For reasons aforementioned, it is imperative that the contracting parties themselves openly discuss the terms of the contract which will, on paper at least, define their life long union. Since the nikah nama, in law at least, lays down the basic foundation of the relationship of “marriage”, its importance must be remembered. Women should also made aware of all important clauses of the marriage contract so they can duly exercise the rights granted to them.