Exploring the “Islamic” marriage contract
The so-called Islamic marriage contract recently proposed by the Muslim Institute has attracted a lot of attention in the Muslim blogosphere lately, much of it negative, for reasons anyone who has read it will understand. It contains brazenly anti-Islamic elements, much of the rest is useless boilerplate, and they have dishonestly claimed (by placing their logos on the front) support from Muslim organisations which do not, in fact, support the finished product even if they supported the idea of such a contract before. Haitham al-Haddad, one of the imams at al-Muntada al-Islami in London, explained this, along with a lot of the other Islamic legal issues, in this series of YouTubed lectures. (More: Traditional Islamism, Muslim Matters with a letter from Sh. Tawfique Chowdhury of AlKauthar Institute, IslamicPolitik.)
It was Ed Husain, in this article on the Guardian’s website, which drew my attention to this lecture. He dismisses it as “a rant” from “an Arab male cleric with extreme Wahhabi leanings, denouncing the contract as kufr, or non-belief”. Well, most “clerics”, or scholars as Muslims actually call them, are male. This has always been the case, although the fact that there are not enough female scholars (as there used to be plenty) is acknowledged in some quarters at least. Ed is also male; why should anyone take any notice of him if this trait is a black mark against Haitham al-Haddad? The lecture’s biggest offending seems to be that it rubbishes a point of view Husain agrees with, and does so pretty comprehensively, and I cannot call its delivery a “rant” although I think he over-eggs the pudding a bit regarding the decline of the West.
“Ed” starts off with a sob story about a female former colleague of his, who caved into parental pressure to marry a cousin who then treated her badly. Given how much of what Ed has told us over the past couple of years has been debunked, I wonder how much of what Ed says about this woman is true, or if she even exists. Ed reckons that, if this contract had been used, his friend might have been able to divorce this abusive husband, or indeed, to have married her “first love” whom she had sacrificed to marry this man. The fact is that it would have had no such effect.
You can download the Muslim Marriage Contract (PDF) here. You will notice that the first page contains a substantial array of logos, including that of the Islamic Shari’ah Council and Muslim Council of Britain, both of which have withdrawn their support for the contract. The MCB have explained their position thus:
In furtherance of its policy to work with others for the unity of Muslims and for the common good, the MCB had collaborated on a worthwhile initiative on enabling parties to a Muslim marriage to understand and respect their rights and obligations and to enable Courts to enforce the rights of parties in accordance with what is agreed at the time of the Nikah. That initiative has regrettably led to misinterpretation of Shari’ah by those who the MCB had trusted to take the lead on this matter. Those representing the Muslim Institute were reported as saying that the documentation produced was a “re-invention of Shari’ah” or that it was a “modern” or ” reformist” view of the Shari’ah. These types of glib generalisations on sharia councils are unhelpful and not in keeping with MCB’s evidence-based approach to community issues. Moreover the MCB looks to the traditional Islamic institutions of ijma (the consensus of scholars) as the way forward in resolving the issues of our times.
The MCB rejects the misguided and incorrect assertions made by and ascribed to the Muslim Institute.
Given that the Muslim Institute is run by Ghayasuddin Siddiqui, one would have expected that the MCB would have checked up on his record, which includes rubbing shoulders (if not literally) with Cassandra Balchin of the secularist pressure group, Women Living Under Muslim Laws. I saw him present a lecture at SOAS on a bill which included Balchin and Chetan Butt, a Harry’s Place type based at Goldsmith’s College. Ed accuses the Council of having a position “as retrogressive and insular as its previous decision to boycott attending Holocaust Memorial Day”, a decision they had every right to take, particularly given that the memorial was all about an event which had nothing to do with Muslims, particulary those from the Indian subcontinent. Ed thinks that the City Circle were ahead of the MCB on that issue as they are on this one. The City Circle is run by Asim Siddiqui, who is the son of Ghayasuddin Siddiqui, who has run the so-called Muslim Parliament and Muslim Institute for years, whose name is on this contract, a fact that Ed does not bother to mention in his article. Whatever the inadequacies of the MCB, it is not a family affair.
The tolerance the Muslim Institute gets from the secular establishment is amazing; the Muslim Institute and Parliament have been part of the same establishment since the 1980s, and were then noisily pro-Iranian, and both have degenerated into vehicles for Ghayasuddin Siddiqui; both are run out of the same address (109 Fulham Palace Road, London W6). In 1989, they were among the foremost cheerleaders for the Iranian fatwa on Salman Rushdie, while UKACIA (UK Action Committee on Islamic Affairs, run by the same people who later set up the MCB) stuck to demonstrations and lobbying. Perhaps the Iranian money has dried up, or perhaps Siddiqui has realised that the Muslim community no longer regard Iran as a great hope for the revival of Islam, or have decided that they do not want to be dominated by Shi’ites after all; or perhaps the secularist lecture circuit provides more money nowadays. The Muslim “Parliament” still exists, or at least its website does, but its website lists just two people as Personnel - Siddiqui himself and one Jaffer Clarke - and it seems to contain no references to past or forthcoming elections. Is a man really to be taken seriously when he runs a “parliament” to which nobody is ever elected? Running front organisations for oneself is normally the hallmark of a kook, not a respectable community leader.
The main problem with this contract is that parts of it are simply not religiously valid. The right of a man to take other wives, for example, is one which the Islamic community has agreed upon for its entire history. This contract, meanwhile, lists among the “special conditions” that 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”. If this really were illegal in this country, there would be no need for it to be included in this contract (more on that issue later, insha Allah), but as it is, informal marriages are not unlawful; what is unlawful in the UK is registering them. Even in the USA, where polygamy was outlawed as a response to the Mormon practice, informal polygamy is tolerated, whether among the Christian sects which practise it or among Muslims. However, in Islamic law, polygamy is a right men have, and no contract can take that away. A woman can stipulate a right to divorce for herself if she is particularly averse, but cannot stop it happening altogether. So, this part of the contract is null and void. Similarly, since the fact that a man’s divorce of his wife is binding is a matter of consensus among the scholars, and is well-known, no contract can make it non-binding, or bind a man to seek counselling or judicial approval.
While not part of the terms and conditions, the certificate also specifies that the marriage be witnessed by “two adult witnesses of good character”, which it alleges is “gender/faith neutral”. This has never been accepted by any Muslim authority; rather, some authorities accept one male and two female witnesses, while others insist on two men. Furthermore, they must be upstanding Muslims, and some suggest that, if there is a shortage of upstanding men, that the marriage be witnessed by a large number of people. Needless to say, classical Islamic jurisprudence does not insist that the witnesses be resident in the country where the marriage takes place, or that the marriage certificate records the postcode of their place of residence.
I suspect that this contract is, for British legal purposes, highly dubious. It mixes boilerplate rhetoric better suited to a preamble into the terms of the contract, and makes stipulations which are completely redundant. Among the terms and conditions is too much vague material. For example, it requires the couple to “undertake to stay loyal to each other and never to engage in extra-marital affairs”, the second of which is already a condition on which a marriage can be ended, and the first is too unspecific to be enforceable, since one person’s idea of what is acceptable as loyalty will differ from another’s, and in the case of marriage, may well go beyond merely not having affairs. The entirety of the “mutual rights and obligations” section is boilerplate and does not belong in the section on terms and conditions; some stipulations, such as the obligation not to spread sexually-transmitted diseases or sexually abuse the children, are already more than adequately covered by civil and criminal law; it also carries the offensive presumption that Muslims will sexually abuse their own children unless you really spell it out to them that you can’t do that sort of thing. It is rather like making people sign an agreement not to throw someone under a train every time they buy a train ticket or enter a station.
So, this contract is legally shoddy, and Islamically invalid. I doubt very much whether it would have helped Ed’s supposed friend, because the right not to marry someone you don’t want to marry is already established, at least in the Hanafi school followed in Pakistan, as is the ability to stipulate a right to divorce at the instigation of the wife. Would this woman have been offered the chance to enter a marriage based on this particular contract when caving in to family pressure to marry a clearly undesirable man? I really do not think so. It is my contention that Muslim women who want to escape from difficult family situations, or to study against the wishes of their family or whatever, do not need outside meddling in Muslim family structures or institutions; they need actual material help, which means money. If these people, and their secularist liberal supporters, wanted to help people other than themselves, they might put their hands in their pockets to help these women pay for food, accommodation and other needs, rather than drawing up a silly little document which is so badly researched and drafted that it will end up helping nobody.
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