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Clauses in the nikah contract

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  • #16
    Re: Clauses in the nikah contract

    I think 'contracts' and 'clauses' and all these things associated with nikah have become too OTT to be completely frank. He SHOULD be a good providing loving husband and she SHOULD be a dutiful protecting and hnourable wife. They SHOULD uphold the rights of one another which we have in front of us in the Quran and hadith, for Allah, for themselves and their own souls and for one another.

    Putting it in writing or as a 'clause' doesn't make it anymore binding than it already is as the rights you owe your spouse or the rights he/she owes you.

    You answer to Allah first, not your spouse, so if you cannot uphold what is expected of you as a husband/ wife as stated in the Quran then why would you do it when written on a piece of paper?
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    • #17
      Re: Clauses in the nikah contract

      It's like any other contract. If you're going to have special clauses, then it might be a good idea to write it down. Though, it's better if you have more trust in your spouse.
      Secure few moments, everyday, to reflect upon the innumerable blessings of Allah and thank Him for bestowing them upon you.

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      • #18
        Re: Clauses in the nikah contract

        Originally posted by Saif-Uddin View Post
        Ukthi Neelu, are you saying that it's OK to have the Wife give up some her rights?

        :jkk:
        Perhaps it depends on what you mean by rights. My original question was regarding whether a woman can stipulate in the nikah contract that her husband does not do something that ordinarily is permitted (such as take another wife)- it was not about neglecting his rights or refusing to fulfil her duties to him as a wife.

        As for your question as to whether a wife can give up her rights, then let me state that it is my observation that husbands are able to routinely prevent wives from doing things that Islam ordinarily permits them to do as they have that authority. So for example if a woman (who doesn't have children) wants to work in an all female environment her husband can forbid that as he has the authority to make that decision. I'm not saying that her rights are neglected by her husband (if we assume that he's providing for her etc) or anything like that but a husband has the authority to make a unilateral decision and she has to stick with it, even if he's forbidding her from something that is ordinarily permissible or not forbidden by shariah. On the other hand, a woman wishes to have a certain type of marriage and there is this one permissible thing she doesn't want her husband to do and it's like well tough luck, like it or lump it you can't do anything about that. I'm not saying women should be given authority or become amir of the household but rather trying to find out what Islam says about stipulations within the nikah contract in certain situations and whether they are binding or not. I'm not even asking for myself, like you, most marriages I've attended don't appear to have clauses attached either it's a pretty straightforward process.

        Originally posted by .mirror. View Post
        She can have the contract state something like where she'll automatically will have the option to divorce in case he takes in another wife. Meaning, she won't have to go through Sharia court for divorce.
        Thanks for the explanation, that makes more sense now.
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        • #19
          Re: Clauses in the nikah contract

          Originally posted by .mirror. View Post
          According to Hanafi fiqh, the conditions are valid. So, if she/he changes maddhab, then that's a diff. case. But, then again, same can be said of things like the issue of 3 divorces.
          :jkk:.
          A source so that I can quote this :)
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          • #20
            Re: Clauses in the nikah contract

            Originally posted by neelu View Post
            Just to be clear, I don't intend to add clauses myself if I were to get married in future. I only ask because I take an interest in knowing what a woman's Islamic rights would be if she were to consider adding a clause. I've heard different opinions on this issue too so just wanted to know. Also in light of the other thread regarding the sister who does not want to marry someone who may take another wife in future- I was going to simply say she can stipulate this in her nikah contract if she wants to (as others have suggested) but there's no point in suggesting it if it is not binding or not allowed.

            I don't understand the statement that it would be haraam to ask a husband to give up one of his rights and would like to hear a little clarity regarding this. What exactly can a woman stipulate in her contract then without potentially infringing on his rights (aside from the mahr of course)?
            The brother I spoke to told me his in-laws made him sign that condition in their contract. However, he views that condition as baatil (invalid), but a baatil clause does not negate the contract so he is not bound by it.

            This is contract law though, and honestly it's a massive topic =/. I only know bits and pieces, I still have to study this stuff properly.

            Originally posted by .mirror. View Post
            According to Hanafi fiqh, the conditions are valid. So, if she/he changes maddhab, then that's a diff. case. But, then again, same can be said of things like the issue of 3 divorces.
            Are you sure about this akhi? What I had understood is that only the shafi's allowed this clause. I will have to investigate further.
            If you have any questions feel free to PM me!

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            • #21
              Re: Clauses in the nikah contract

              Originally posted by al-siddiq View Post
              The brother I spoke to told me his in-laws made him sign that condition in their contract. However, he views that condition as baatil (invalid), but a baatil clause does not negate the contract so he is not bound by it.

              This is contract law though, and honestly it's a massive topic =/. I only know bits and pieces, I still have to study this stuff properly.



              Are you sure about this akhi? What I had understood is that only the shafi's allowed this clause. I will have to investigate further.
              What do you mean he's not 'bound' by it? All conditions of a contract are only binding to the extent it gives the other party the option of living with it or calling it quits. If it thinks it's baatil, then he should have said so.

              Because if the family asked him to sign it on the basis they believe it's a valid contract, they can take the matter to their scholar/aalim/imaam who they have likely already consulted before making the conditions/contract. There would be no reason for him not to approve khul' for example at the stage.

              It makes no sense. You can consider a contract baatil, but if the authority consider to be legally binding then you're opinion matters very little. In this case, the authority is the scholar the family consulted in the first place to make the condition and used as their point of reference. They can use that authority to apply for khul', mediate etc.

              That and there's an argument to be made about deception and whether that's grounds for divorce.
              Last edited by mizfissy815; 27-03-12, 09:31 PM.
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              • #22
                Re: Clauses in the nikah contract

                Originally posted by neelu View Post
                Perhaps it depends on what you mean by rights. My original question was regarding whether a woman can stipulate in the nikah contract that her husband does not do something that ordinarily is permitted (such as take another wife)- it was not about neglecting his rights or refusing to fulfil her duties to him as a wife.

                As for your question as to whether a wife can give up her rights, then let me state that it is my observation that husbands are able to routinely prevent wives from doing things that Islam ordinarily permits them to do as they have that authority. So for example if a woman (who doesn't have children) wants to work in an all female environment her husband can forbid that as he has the authority to make that decision. I'm not saying that her rights are neglected by her husband (if we assume that he's providing for her etc) or anything like that but a husband has the authority to make a unilateral decision and she has to stick with it, even if he's forbidding her from something that is ordinarily permissible or not forbidden by shariah. On the other hand, a woman wishes to have a certain type of marriage and there is this one permissible thing she doesn't want her husband to do and it's like well tough luck, like it or lump it you can't do anything about that. I'm not saying women should be given authority or become amir of the household but rather trying to find out what Islam says about stipulations within the nikah contract in certain situations and whether they are binding or not. I'm not even asking for myself, like you, most marriages I've attended don't appear to have clauses attached either it's a pretty straightforward process.



                Thanks for the explanation, that makes more sense now.
                She can Ukthi, but this will open up a whole load of Problems for Brothers/Sisters, especially if brothers start making their Stipulations, Also note that a brother or a sister can reject a proposal if they do not agree with a Stipulation.

                :jkk:
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                • #23
                  Re: Clauses in the nikah contract

                  Originally posted by Brother Hassan View Post
                  :jkk:.
                  A source so that I can quote this :)
                  Originally posted by al-siddiq View Post
                  The brother I spoke to told me his in-laws made him sign that condition in their contract. However, he views that condition as baatil (invalid), but a baatil clause does not negate the contract so he is not bound by it.

                  This is contract law though, and honestly it's a massive topic =/. I only know bits and pieces, I still have to study this stuff properly.



                  Are you sure about this akhi? What I had understood is that only the shafi's allowed this clause. I will have to investigate further.
                  See post 5.
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                  • #24
                    Re: Clauses in the nikah contract

                    Originally posted by mizfissy815 View Post
                    What do you mean he's not 'bound' by it? All conditions of a contract are only binding to the extent it gives the other party the option of living with it or calling it quits. If it thinks it's baatil, then he should have said so.

                    Because if the family asked him to sign it on the basis they believe it's a valid contract, they can take the matter to their scholar/aalim/imaam who they have likely already consulted before making the conditions/contract. There would be no reason for him not to approve khul' for example at the stage.

                    It makes no sense. You can consider a contract baatil, but if the authority consider to be legally binding then you're opinion matters very little. In this case, the authority is the scholar the family consulted in the first place to make the condition and used as their point of reference. They can use that authority to apply for khul', mediate etc.

                    That and there's an argument to be made about deception and whether that's grounds for divorce.
                    This is contract law ukhti, and there can be no emotions or self-interpretations. This topic is large and complex, and perhaps unknowingly you have using logic here (aql as opposed to the naql).

                    According to the opinions I hold, a contract must itself not be baatil. However, if there is a condition within the contract that is invalid, this clause can be ignored without invalidating the contract itself.

                    The imam you speak of cannot change the understanding you have of contract law just like that. Since there is no khilafah, there is no central authority to bind certain opinions upon the public (in areas where there are difference).

                    You have also incorrectly made the assumption that the brother held this opinion when he first signed the contract (hence deceit and the point on the family + imam are incorrect).

                    The brother changed his opinion on this matter as he learned more about contract law.

                    In any case, my understanding had been that even if a incorrect clause had been added to a contract, as long as the root of the contract was not baatil, you could sign it and ignore that clause.

                    Like I said, contrast law is complex, and I know bits and pieces here and there. Most 'imams' are not at all near the level they need to be in the topic, and even quotations of classic scholars require context in which they said it. Not so straightforward, but inshAllah khayr. If there is more concern here, I can bring it up with a brother who understands such things, or email a mujtahid I know (only if it's practical to someone).

                    Originally posted by .mirror. View Post
                    See post 5.
                    JAzakumAllahu khayr. I will look into it further!
                    If you have any questions feel free to PM me!

                    Humililty, Sincerity, and the quest for Truth. There is no purpose in life but to seek the pleasure of Allah.
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