N€GOTIflTING IN MARRinGC CONTRACT: fl SOCIO-L€GAL STUDV THESIS SUBMITTED FOR THE AWARD OF THE DEGREE OF Boctor of $})tlosfopiip IN LAW By TANZeCM fATIMA Under the Supervision of PROP. SALCBM AKHTAH Ex. Dean & Chairman DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH (INDIA) zaaz T6C.68 ABSTRACT The requirement of our age make it necessary to examine and weigh once more many Islamic legal matters about which it is no longer enough to accept the old assessment with the passage of time. There is no clarity in the mind of people regarding sources of Islamic law, which influence all the matters relating to it. The most fundamental problem concerning the system of family rights, or atleast one which is one of the same level as the fundamental and complex is, firstly, how parties negotiate in marriage contract? Secondly, whether this give the right to choice to the parties ? and when there is denial of consent by parents and when her consent in marriage was not generally thought to be necessary. So women was obliged to submit to the wishes of her parents, this directly conflict with religious, legal and secular norms in contemporary society globally. Marriage under Islam is a unique institution. The institution of marriage which constitutes the foundation of personal, family and community relationship, is the backbone of our social system in the society of Islam, has been the subject matter of judicial interpretation in India. It is first considered in famous case of Abdul Qadir Vs Salima. The Islamic institution of marriage is known as Nikah/Aqd. Marriage in Islam is a highly recommended practice (Sunnah). Present work scruitnize negotiations in marriage contract and their related issues. The present study was undertaken keeping in view the following broad objectives : 1. To spread awareness, knowledge and information regarding the status of women in Islamic Shariah. 2. To evaluate the cases as in actual practice consent is lacking during marriage negotiations though Quran and Sunnah provides this explicitly. 3. To highlight importance of her right to choice and its implementation in accordance with Shariah laws in the future generations. 4. To inculcate awareness among Muslim women regarding of standard nikah-nama and its contents to avoid demise of their legal rights conferred by Almighty. 5. To show the importance of compulsory registration of marriage so that it avoid post marriage hazards. 6. To be aware with religious and legal laws those conferred social status to women. 7. To avoid misinterpretation of Islamic text in future by estabilising Muslim matrimonial code which is headed by ulema. 8. To evaluate the existing legal measures and to assess the impact of codified part of Muslim law. 9. To draw conclusions and to put forward suggestions in order to eradicate the menace of forced Marriage Negotiations. For conducting the study one shall have to divide the whole work into number of chapters, so as to give a correct picture to the reader with regard to conduct of work. The present study consists of seven chapters. In order to understand the subject matter its introduction is very important. It deals with plan of study, study area, research methodology, conceptualization of change, the objectives and hypotheses which one has to discuss in the study. Under chapter-I Further this chapter sub divided into following parts as to discuss about origien of Isalm, Islam in India, followers of Islam, Muslim community : a profile and historical sketch about education of Muslim women. Chapter II provides an insight into the concept of institution of marriage has been analysed. This chapter has been discussed under different parts namely as, aspects of Muslim marriage, ordinary contract vis-a-vis marriage contract, effects of a valid Marriage, importance of consent during marriage negotiation, its comparison with Hindu law, option of puberty and marriage by guardianship has been discussed. Chapter III devoted to Islamic Feminism. This chapter sub divided into 5 parts namely. Islamic Traditions and the feministic movements and factors thereof, directives for the feministic movement in an Islamic environment, form of an Islamic feminism and brief history about feminism in west and feministic awakening and movements lastly. Chapter IV focusses attention to the role of Human Rights in Islam and its affects on matrimonial laws. This chapter further focuses on Islamic approach and western approach about human rights. Chapter V is intended to analyse with the help of statistical package of social science. The respondents were ask to record their responses on attitude scale. Results were tabulated on the basis of simple percentage method and their graphical representation included at appropriate places in this study. To analyse various hypotheses and to put them on test a questionnaire was prepared and a field study was conducted. The object was to ascertain impact of negotiation in marriage contract with detailed description about each issues. In certain cases even personal interviews were also conducted. The findings were tabulated, analyses and discussed in detail. Chapter VI attempt is made to analyse legal cases and theirt judicial interpretation under marriage. The institution of marriage constitutes the foundation of personal and family relationship. It is backbone of social system in the society of Islam. The institution has been the subject matter of judicial interpretation in classical judgement of Abdul Qadir Vs Salima (1886) 8 All. 149. where the courts held that Muslim marriage is nothing but civil contract. This controversial judgement continued even in subsequent cases, i.e. Anis Begum Vs. Istafa Hussain(1933) 55 APP 743, where Sir Shah Sulaiman, C.J. delivered the judgement in length discussed and evaluated the 'purely civil contract notion' evolved by Mahmood, J. He further pointed out: "....but if the consummation of marriage has taken place and the part of dower remains unpaid it would be absurd to suppose that the Marriage could be cancelled by wife at her will...." Unlike western concepts where celibacy is regarded as the most approved way of life. Islamic approach accepts marriage as an essential requirement for the well-being of individual and the society. It is Islam which stop this evil. The limit placed on sexual relations by Islam promote genuine interests of the present and future society. So this chapter points out the critical appraisal of the cases on marriage negotiations. The last and final chapter deals with the conclusion and suggestions, which may be helpful for the growth of Islamic Matrimonial jurisprudence in accordance with the path shows by Allah, inter alia. Findings of the Survey : In summary the data shows that in the Aligarh district 90 % population is literate and non formal form of education have also contributed in raising the literacy rate of Muslim women. Women have had access to and had benefitted from other forms of education. Even in semi-urban and rural areas women have religious education and counts as literate. However those 10% are illiterate, they are migrant home based workers came from Bihar region for employment. But Findings also shows that in most of the family male members get preference over female in every matters. This evidence shows that the education levels are declining in the rural women. Education per se does not inform women's awareness as about Muslim personal law, importance about contents of nikah-nama, compulsory registration marriage, knowledge about their social status rights as enshirned in Quran and sunnah, importance of consent in marriage negotiations and unhealthy attitude of Indian judiciary. Women with formal education who have opted for Muslim personal law to be retained without reform more than women with no education who prefered its replacement with gender just secular laws. Majority of women in Aligarh district working and even some house wives earning through the self employment like embroidery and handicrafts. In home based workers conditions are poor, their income does not exceed Rs 500 a month. These women totally ignorant about their religious and legal rights though they offer prayers and read Quran. Women therefore participate in the employment as a need to sustain and support their families. These are teachers, office employes, lawyers who earn their handsome amounts in comparison with home based workers and housewives. Formally educated women want to marry according to their choice but they submit her wishes to their parents and marry according to their parents choice. But all the respondents in this survey want compulsory registration of marriage. Participations of these women in marriage negotiations with the permission of their elders. Thus we can find that there is clear relations between education, exployment and decision making during marriage negotiations. Educations influence women's awareness and enhance their aspiration for changes and reformations under laws as well as strict imposition of laws when their is curtailment of their rights. All the respondents in this survey wanted to enact Muslim personal matrimonal code. Women in many Islamic societies lack personal autonomy. Before marriage they are under the tutelage of their father or other male relatives. According to hypotheses findings of this designated research confirmed that they are expected to marry a husband chosen by her before marriage she obey her parents, after that obey their husbands, bring up children, stay at home and mostly avoid participation in public life. At every stage of their lives, they are denied freedom of choice and their consent in different matters. They may be forbidden to acquire an education, prevented from getting a job and thwarted from exploring their full potential as members of the human community. If we have watched an official Islamisation programmes in Saudi Arabia, Pakistan, Iran, Sudan and Afghanistan have led to serious violations of the human rights of women. Muslim conservatives in all Islamic countries, and even in nominally secular India, have refused to recognize women as full, equal human beings deserving of the same rights and freedoms as men.