Valid Stipulation
All the schools and sects regard as valid and enforceable any stipulation there merely seeks to reinforce the normal effects of marriage. Thus agreement to fix the amount of dower that shall be paid. Another example might be that express stipulations that hold the husband responsible for maintaining the wife and those which state that the wife will obey her husband within the permitted parameters. These are valid and enforceable stipulations but are not necessarily required to be covenanted as such because they are the objectives of the nikah itself, but if done, then it will reaffirm the already existing duties and obligations.
Invalid Stipulation
Invalid stipulations, which omit a condition in the marriage contract, for instance, one stating that the husband will not maintain his wife; one cancelling the wife’s dower; restricting a man’s sexual relations with his wife; or, one allowing a woman to partake from the share of her husband’s second wife. Imam Bukhari, reporting on the authority of ‘Abd Allah ibn-i-Mas’ud, states that a woman may not lay down in her marriage contract that her sister in Islam, i.e. the co-wife, be divorced. He also relates, on the authority of Abu Hurayrah, that the Holy Prophet (PBUH) has said that it is not legal for a woman to stipulate that the cowife be divorced in order to increase her own share because she will only get what Allah has prescribed for her.
Stipulations that invalidate the entire contract are those held to be contrary to the very essence of marriage. Into this category the four Sunni schools and the Ismaili sect of the Shia place all stipulations attempting to impose a time limit on the marriage, as the law regards marriage as being a life-long union. The Ithna‘ashari sect of the Shia regard such stipulations as valid and recognise the institution of the mut’a, or temporary marriage.
Mut’a is concluded by the same way as the Nikah (i.e. by an offer and acceptance). As in Nikah the wife receives a sum of money on the conclusion of the contract. This is not referred to as dower but is termed salary or wages. The contract may stipulate any time-limit. The wife is under no obligation to obey her husband and accordingly her husband is under no obligation to maintain her. Any children born of a mut’a marriage are legitimate but if either party dies during the subsistence of the mut’a the other party will not inherit from them. Either party may terminate the marriage at will. If the husband chooses to end the marriage before the expiry of the time-limit he may not reclaim any of the money he has paid to her. However, if the wife terminates the marriage she must repay her husband a proportionate amount of the money paid by her husband, taking into account the time she has spent with him. When the marriage ends the woman must observe an iddat of forty days or, if she is pregnant, until the delivery of the child. A man may have an unlimited number of wives by the mut’a contract. A mut’a marriage is dissolved ipso facto by the expiry of the term but if cohabitation continues after the expiry of the term, the inference is that the term was extended for the whole period of the cohabitation and that the children conceived during the extended period are legitimate.
Neither Prohibited nor allowed Stipulation
This category of stipulations is the most important and consists of conditions that benefit the wife, but are neither prohibited, nor expressly allowed in Islam. The husband will give up some of his rights by accepting them, for example, when his wife lays down the restriction that he will not marry a second time during their marriage, or that she should not be taken out of her matrimonial home/city. Not surprisingly, the validity of such stipulations is disputed amongst different schools of thought. The Hanafi, Shafi‘i and Maliki schools regard these conditions to be illegitimate while the nikah containing them will itself remain valid. Meanwhile, the Hanbali School
Arguments against stipulations
There is a Prophetic saying that goes, “Any stipulation that is not in the book of Allah (the Qur’a¯n) is void.” The majority of scholars believe that the above-stated stipulations are not mentioned in the Qur’a¯n and are, therefore, not binding.
Arguments for stipulations (Hanbali view)
There are, however, many great names in the list of those who regard these stipulations as legal and valid. ,whose arguments run as follows:The Holy Qur’a¯n states: “O you who believe abide by your contracts”. (Sura 5, verse 1) This verse, being the basis of all contracts, prevails and therefore all obligations, when undertaken, should be carried out accordingly. The Hanbalis regard the above verse as the basis of the law of contract, thereby invoking the principles of freedom of contract. Another Qur’a¯nic verse that is cited to support this view is: “And fulfil every engagement, for it will be enquired into (on the day of the Reckoning)” (27:34). These arguments are further supported by the following verse, “And fulfil the covenant of Allah when you have covenanted.”
Accordingly in Hanbali law, any stipulation, not itself forbidden or not contrary to or inconsistent with the essence of the contract of marriage, is valid. A stipulation falling into this category would be a provision to the effect that the husband will not take a second wife or that the wife will be free to leave the matrimonial home whenever she wishes. If such a stipulation is inserted into the contract and the husband breaches it, the wife’s remedy is to apply to the court to grant her a dissolution of the marriage on the grounds that her husband is in breach of contract and she is therefore no longer bound by it.
Reform
Reformers in many parts of the Muslim world have adopted the Hanbali law allowing stipulations which vary the normal incidence of the marriage contract to be inserted if such stipulations are for the benefit of one or both parties to the contract. Such a stipulation in the marriage contract that restricts the husband’s right to practice polygamy is specifically recognized in many Middle Eastern Countries. Article 38 of The codified 1917 Ottoman Family Rights Code was the first piece of legislation that had adopted the Hanbalite’s rules on inserting stipulations in marriage contracts. This stipulation includes allowing the wife to seek a divorce in case the husband contracts another marriage.
The Jordanian Law of Personal Status 1976 maintains provisions that allow the insertion of the stipulation in the marriage contract whereby the husband should not take another wife. In this stipulation the wife has the right to divorce in a situation where the husband has violated the stipulation.
The Syrian Personal Law Code of 1953 provides general provisions that allow the wife to insert a stipulation in her marriage contract. This general provision in actual fact does not state specifically that the wife has the right to divorce in case the husband violates the stipulation by contracting another marriage. However, such a stipulation was made possible under article 14 of the Syrian Personal Law Code 1953.
The Moroccan Code of Personal Status of 1957 and 1958 has a similar provision. In Article 31:
… A woman has a right to stipulate in the marriage contract that her husband should not take any co-wives, and that if the husband does not comply with that to which he has bound himself, the wife shall have the right to demand that the marriage be terminated.
Article 6(4) of the Iraqi Law of Personal Status (no. 188) of 1959 also gives a woman the right to apply to court for a divorce if her husband fails to honour a stipulation agreed upon in the marriage contract.
Kuwaiti law differentiates between three types of stipulations that may be incorporated into the marriage contract as stated in Articles 40 and 41 of Law No. 51 concerning personal status:
Firstly, a condition that violates the very purpose of marriage shall render the marriage contract absolutely void.
A stipulation that runs counter to the implications of marriage, without contravening its principles, shall be void, but the marriage contract itself will remain valid.
But a clause that contravenes neither the roots nor the implications of marriage is not prohibited by Shariah, and thus shall be binding and enforceable, but only if it is included in the marriage contract.
Article 11 of Tunisian Code of Personal States, 1956, permits stipulations in a marriage contract. ‘If any stipulation is violated the aggrieved party may apply for dissolution of marriage.’
Indian Sub-Continent
Similarly, such stipulations have been accepted as valid by courts in the sub-continent. However, they did not adopt the Hanbali doctrine but iterated that a Muslim marriage is a civil contract, and as long as a stipulation does not contravene the Indian Contract Act 1872, it will remain valid and binding. In Muhammad Amin v. Amina Bibi Addison J. put it this way: “marriage is a civil contract and the parties may contract in any way they wish to within certain limitations.”
No comments:
Post a Comment