Introduction:

Before Islam, women were treated as a „commodity‟ that closely resembled a sale through
which a woman became the property of her husband. Woman was given in marriage contract
without her consent as a sale commodity. In ancient Arabia, a woman was subjected by males
-her father, brother or close male relatives- when she was a virgin and her husband when she
became a wife. A female had no voice in her marriage (in its initiation or its termination). Islam
brought a shift in the basis of social foundation from blood kinship to fellowship in a community
of believers 1.

Classical family law as finally formulated was the product of Qur’ānic reform and customary
practice. Islam discouraged all existing practices and provided equal rights to women. The Holy
Prophet (PBUH) has emphasized on marriage in a large number of Hadith. Prophet (PBUH) said
on one occasion, “marriage is my Sunnah, whoever turns away from my Sunnah, does not
belong to me”2.

This Hadith highlights the importance of marriage contract. An important purpose of marriage is
to attain psychological, emotional and spiritual companionship3. Marriage helps men and women
to lead a life of chastity; it safeguards them against immoral sexual indulgence and develops
smooth relationship among a couple.

Muslim Marriage:
1 International Journal of Social Science and Humanity, Vol. 3, No. 3, May 2013Shariah Perspective on Marriage Contract and
Practice in Contemporary Muslim Societies . J. L. Esposito, Women in Muslim Family Law, New York: Syracuse University Press,
vol. 15, 1982.

2International Journal of Social Science and Humanity, Vol. 3, No. 3, May 2013Shariah Perspective on Marriage Contract and
Practice in Contemporary Muslim Societies . S. Bukhari, Hadit, no. 5063, Hadith, no. 4776, “Sahih Muslim,” Hadith, no, 1020

3 International Journal of Social Science and Humanity, Vol. 3, No. 3, May 2013Shariah Perspective on Marriage Contract and
Practice in Contemporary Muslim Societies .M. T. Mansoori, Family Law in Islam, Islamabad: Shariah Academy, International
Islamic University, vol. 7, 2009.

1|Page
If we focus at the concept of Marriage in Islamic Law, marriage has been widely interpreted by
the judiciary along with the matter associated with it. Indian Supreme court in Abdul Kadir v
Salima held that “marriage among Mohammadans is not a sacrament but purely a civil
contract4.” The idea about the muslim marriage that marriage is contractual in nature has been
established also by the Supreme Court of Pakistan in Khurshid Bibi case and by the High Court
division of the Supreme Court in Bangladesh in Anwar Hossain v Momtaz Begum case (1999)5.

As the marriage is of contractual nature so here the stipulation in marriage contract can be
recognized as the terms and conditions as in the purely civil contract. The marriage under
Islamic law has a religious connotation, thus stipulation under the contract of marriage which is
regulated by the law should be designed in accordance with the framework of the Sharia law.

The marriage contract ceremony must include the consenting and competent couple (who are of
marriageable age),6 the person solemnizing the marriage, and two witnesses. Although traditional
Islamic jurisprudence required two female witnesses to each male witness based upon7.

Stipulations to the Marriage Contract8

Adding Stipulation in marriage contract define where one party states a stipulation binding on
the other party for specified condition or conditions. There is a variance of opinion among the
scholars concerning the validity of conditions or stipulation.

Stipulation of contracts by nature are two types:

1) Those imposed directly by the Sharia;and

4 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, june 2015 page-48. . Indian Law
Report(1886)8 Alahabad, 149.
5 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, june 2015 page-48.
6 They must be of marriageable age according to the laws of the country in which the marriage is performed.

7 Qur’anic verse 2:282

8 http://www.islamswomen.com/marriage/fiqh_of_marriage_5.php

2|Page
2) Those drawn up by the parties(one/both) of the marriage contract.

While any contract is entered into, the first type of conditions are protected automatically even if
they are not stated in the contract.

According to the general principle of Fiqh that customs can take the status of law. In the region
of marriage, there are some stipulations that are known by custom in which it is understood that
people are going to behave in certain fashion. These customs do not need to be mentioned in the
contract to be binding. The customary practice cannot violate or refute anything expressly laid
down by the Sharia though the customary act must be common, familiar and widespread and not
something practiced only by some portions of the population.

Muslims Must Fulfill Their Agreements

Generally speaking, Muslims must comply with any agreements that they make. Allah said about
the believers:

"...And those who fulfill their pacts when they make one..."9

"O you who believe fulfill your contracts..." 10

The Prophet (peace and blessings be upon him) said:

"Muslims are bound by their stipulations." 11

Benefit of stipulation:

9 Quran 2:177
10 Quran 5:1

11 Abu Dawud & Al-Hakim – Sahih

3|Page
As we know that the general trend of Muslim Family law is about to grant more rights to men
than women.12 Therefore Stipulation in Muslim marriage is an important feature from many
aspects, such as;

1. It is beneficial for the women to amalgamate any added stipulation in the marriage
contract.
2. The delegation of the right to divorce by the husband to his wife (talaq-i--tafwid).
3. In case of a no-fault divorce the stipulation may be an option to increase in the amount of
dower and compensation.
4. It may discourages polygamous marriages.

Stipulation in Marriage contract and views of different schools:

The jurist’s disagreement over whether the rights recognized by the marriage contract can be
altered by the insertion of stipulations. Most frequently, such stipulations are intended at
safeguarding certain rights or privileges for the wife. The utmost debated provisions stipulate
that the husband will not take any additional wives or will not move his wife from her
hometown.

Among the four Sunni schools, the Hanbalis contribute the most recognition to these stipulations,
stating that if the husband violates either stipulation, the wife has the right to dissolve her
marriage. Nonetheless It does not mean that by violating the stipulation the additional marriage
he accomplishes will be void, merely that she can decide to leave him if he marries again.
Similarly, she cannot force him to remain with her in her town, but can obtain a divorce if he
contends to moving her. Jurists from three other legal schools, Maliki, Hanafi, and Shafi, by
contrast, consider both clauses to be completely void and have no effect.

The inclusion of stipulations in marriage contracts is discussed by many Muslims today as the
best way to protect women’s rights within marriage. In majority-Muslim societies, current legal
codes determine how stipulations will be enforced.

12 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, june 2015 Page-107.

4|Page
There is a Prophetic saying that goes, “Any stipulation that is not in the book of Allah (the
Qur’a¯n) is void13.” The majority of scholars believe that the above-stated stipulations are not
mentioned in the Qur’an and are, therefore, not binding.

Another saying of the Prophet (PBUH) is quoted as follows: The rights and obligations of
Muslims should be according to stipulations and conditions which they have set for themselves,
except any stipulation which legitimizes an illegal thing or prohibits something legal.14

Accordingly incorporating stipulation in marriage contract is not forbidden unless or until it

contradict with the sharia. According to Holy Qura’nic Verse: “O you who believe abide by
your contract15”.

This types of stipulations is the most significant and contains the 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. There are three main types of stipulations:

Stipulation may be of three types regarding the legal validity of such stipulation, name as;16

1. Valid stipulation – valid stipulations are those which highlights the Sharia obligations
which are not contrary to Sharia principle; those stipulations are binding in nature
without any disagreements. 17
2.

Here we can mention the Article 40(3) of the Kuwait Family Law 1984 (Personal Status
Law) in stated that stipulation that does not conflict with the basis and is not forbidden in law

13 Bukhari, Sahih, Vol. 1, pp. 1143–1144, Vol. 1, pp. 1153–1157, and Vol. 1, pp. 1234 and 1238–1239; Muslim, Sahih, Vol. 4, pp.
133–134
14 Tirmidhi, Sunan, Vol. 1, p. 420.
15 Ibid. Quran-5:1
16 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, June 2015pages117-119
17 ibid

5|Page
 then the stipulation is valid and must be fulfilled. In contravene of this stipulation can lead
the right to seek fask or judicial dissolution18.

For example-Stipulations regarding the husband responsible for maintaining the wife and
those which state that the wife will obey her husband within the acceptable/legitimate
parameters. These are valid and enforceable stipulations but are not necessarily required to be
stipulated as such because they are the objectives of the Marriage (nikah) itself. Nevertheless
if done, then it will endorse the existing duties and obligations of Muslim marriage.

3. Void stipulation- stipulation which conflicting the Sharia or differ such incidents of
marriage which should not be differed are void. Void stipulations, which neglect a
condition in the marriage contract, for example - the husband will not maintain his wife;
husband cancelling the wife’s dower; restricting a husband’s sexual relations with his
wife etc. In these situation marriage will remain valid except the stipulation.19

4. Invalidating stipulation: invalidating stipulation makes the whole marriage contract void
along with the stipulations. For example we can say a marriage concluded with a
stipulation for a certain period of time in which the stipulation itself and the whole
contract of marriage is void.20 For example if any of the party commence the marriage for
a specific period of time (for 2 months or 2 years) by stipulating as a term then both the
stipulation and marriage will be void. Article 42(2) of Sudanese Family Law 1991 stated
that “a stipulation prescribing a particular time limit will invalidate the marriage”.21

Article 53 of 'THE FAMILY LAW 2006 of Qatar stated that-

“a marriage contract that contains a condition contradicting its essence shall be void. If it
contains a condition that contradicts its necessary legal implication or which Islamic Sharia
18 Ibid
19 ibid
20 ibidi
21 Ibid page 119

6|Page
forbids, such condition shall be void but the contract valid. If it contains a condition that
contradicts neither the essence nor the necessary implication of a marriage contract nor which
Islamic Sharia forbids, such condition shall be valid and enforceable, and such non-satisfaction
shall give the party imposing it the right to claim rescission. Conditions may be proved by
Evidence.”

Modern Muslim countries like Kuwait, UAE have legislation regarding the provision of
stipulation in marriage contract.22

My research area is stipulation in Muslim marriage contract and impact on

women’s right. Therefore In the following sections I will discuss how
stipulations in Muslim marriage contract benefits the women in muslim
marriage without violating the Sharia provisions.

Stipulation regarding dower:

The solemnizer or kazi asks the couple, before signing the contract, whether they consent and
for the amount of the dower (mahr). Under traditional Islamic grooms must provide a dower, or
marital gift, for their wives23. There is no minimum or maximum amount specified for the dower,
and the gift can range from cash to gold to property. In addition to determining the dower,
Islamic law allows stipulations to be added to the marriage contract which also may include the
mode of payment of dower and time of payment of deferred dower.24

Stipulating regarding Polygamy:

The issue of polygyny in different Muslim countries are addressing in different ways. One group
of countries, including Tunisia, Turkey, and in part Lebanon, simply bans the practice outright.

22 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, June 2015pages130, 131
23 Qur’an 4:20
24 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, June 2015 pages137

7|Page
Whereas another group limits the practice, applying conditions that, in some cases, are quite
difficult to prevent a playful exercise of multiple marriages.25

So where polygamy is not banned or restricted, the women’s/ wife’s right to prevent her
husband’s polygamous marriage is stipulation in marriage contract. For example according to
Article 40 of the Moroccan Family Code (Moudawana) 2004 polygamy is forbidden when the
wife stipulates in the marriage contract that her husband will not take another wife.26

In Algeria, Egypt, Bahrain, Jordan , Lebanon, Mauritania, Palestine a woman can stipulate in
marriage contract that her husband cannot take another wife. If her husband breaches the terms
of the marriage contract then wife has the right to divorce.27

Here I would like to Mention that the case of Bangladesh. In Bangladesh there is no statutory
provision regarding the stipulations of marriage. Nevertheless, in the standard marriage
contract of Bangladesh, which is known as Kabinnama, there is few columns among which
Column 17 is the place where both parties may insert stipulations, which says “Description of
special conditions, if there is any28”.So if wife can insert such stipulation that her husband cannot
take second wife and if he contravene the term then the wife will have the right of divorce.

Stipulation regarding the power of divorce:

In Muslim law practices show that Husband has the ultimate and unilateral power to divorce his
wife even without any fault or showing any reason to divorce. It is unjust to continue to allow the

25 In an overview of his intent, the Moroccan king underlined the constraint of polygyny in accordance with the intentions and
justice of Islam, and the ‘distinctive wisdom of Islam’ in allowing a man to marry another wife ‘in a lawful manner by reason of
urgent and pressing need, and with the consent of the judge, rather than resorting to unlawful de facto polygyny in the event of
the total prohibition of polygyny.

26 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, June2015 page-125
27 JOINT REPORT ON ARTICLE 16, MUSLIM FAMILY LAW AND MUSLIM WOMEN’S RIGHTS IN KUWAIT
68th CEDAW Session Geneva, Switzerland November 2017
28 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, June 2015 page-136

8|Page
men the right to divorce their wives at will. The right of men to divorce his wife at will
contradict Qur’nic teaching specially the message of kindness, fairness, justice and what is right
and good29. According to Holy Qura’nic Verse-“either hold together on equitable terms or
separate with kindness30.

Wife’s possibility to end a marriage is secondary or delegated power given by husband which is
known as talaq-i-tafwid or delegated talaq.31

As mentioned above that in Bangladesh, Column 18 of Kabinnama (marriage contract) has the
provision of stipulation regarding the delegated power of divorce subject to condition or without
condition. Through this kind of stipulation wife acquire the right to divorce where the she has
been subject to torture or her husband has taken another wife, or not giving maintenance etc. In
this situation wife does not require to abandon her financial rights unlike Khul.

Stipulation regarding no-fault divorce by husband:

Many countries have provisions for compensation for no-fault divorce by husband. Such as;

“In Tunisia the court determines the financial compensation the parties owe each other in the
event of a divorce. Courts interpret this to mean that if a woman is “wrongfully” divorced, she
may be awarded mata’a in the form of a lump sum, a property transfer, or monthly installments.
The amount may be determined by the standard of living to which the wife is accustomed32.”

“In Malaysia A woman divorced “without just cause” may apply for mata’a, and she retains her
claim to mahr. The amount of mata’a is to be fair and just. The spouses are to inform the court of

29 JOINT REPORT ON ARTICLE 16, MUSLIM FAMILY LAW AND MUSLIM WOMEN’S RIGHTS IN KUWAIT 68th CEDAW Session
Geneva, Switzerland November 2017
30 Quran 2;229
31 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, June2015
32 “Best Practices” Progressive Family Laws in Muslim Countries August 2005

9|Page
any agreement or demands regarding maintenance and accommodation for the wife and
children, custody, and division of marital assets”.33

“One of the conditions of the nikah may state that if a divorce were ever to take place, his wife’s
dower may be doubled, or tripled. For instance, if the original amount is Rs. 50,000, it may
become Rs. 100,000 when and if the husband divorces his wife. So, in a way, this stipulation may
be deemed to safeguard the wife’s financial status, so that she does not find herself economically
crippled if her husband decides to divorce/abandon her.”34

So in countries where there is no provision regarding compensation for no-fault divorce like
Bangladesh they can stipulate this as a term of the marriage contract. In Bangladesh Column 17
of Kabinnama is the place where stipulation of this kind can be inserted.

Stipulation regarding study or work:

Female employment is a particular challenge within many Muslim region. The expectation of
obedience on the part of wives is often used by husbands with in many region to limit women’s
ability to find work outside the home. In a traditional Islamic marriage, the husband owes the
wife maintenance (he must provide for her); in return, she is expected to be obedient to him.35

The extent of his authority is a matter of debate, but traditional society often grants him broad
discretion, and husbands commonly restrict their wives’ activities, forbidding them to seek
higher education and employment or to travel. 36
33 Ibid.
34 Yearbook of Islamic and Middle Eastern Law Volume 12 2005–2006
35 “Best Practices” Progressive Family Laws in Muslim Countries August 2005

36 ibid

10 | P a g e
In Qatar, for example, a woman seeking employment must have written permission from her
husband. Other countries interpret obedience much less strictly or strike it from the law
altogether, as in Morocco, Turkey, and Tunisia.

So inserting stipulation to reserving her right to go out for study or for work is an another means
to uphold women’s right and economic empowerment of women

In Bahrain a wife can stipulate that she would like to continue working after marriage 37. In
U.A.E women are permitted to stipulate special rights regarding her right to study or work.38

Stipulation regarding property regime:

Law and custom are often vague on whether a widow is allowed to maintenance during idda
upon death of a husband or only entitled to her share of the estate.39

So stipulation may also be made regarding matrimonial properties by concluding separate

agreements on the management of property acquired during marriage.40

Conclusion:

Stipulation is an option which is open for both husband and wife. As the legal rights of women in
Muslim countries vary, typical stipulations tend to protect women’s rights by bringing couples to

37 Muslim Family Law, Sharia and Modern World by Dr. Muhammad Ekramul Haque, June2015, page 126, sabika al-Najjar,
Bhahrain ‘in Sameena Nazir and Leigh Tomppert(eds), Woman’s rights in Middle East and North Africa ( 1 st ed, Freedom House,
USA, 2005), 51, 54
38 ibid
39 “Knowing our Rights: Women, family, laws and customs in the Muslim World,” Women living under Muslim Laws, p. 303,
2003, London: UK.
40 WOMEN AND MUSLIM FAMILY LAWS IN ARAB STATESACOMPARATIVEOVERVIEWOFTEXTUAL DEVELOPMENTANDADVOCACY
Lynn Welchman

11 | P a g e
an agreement regarding an equal right to initiate divorce, an agreement to remain faithful,41 the
right to education and work, equal division of domestic responsibilities, and living conditions.
Stipulations regarding property tend to be absent in most Islamic marriage contracts as marital or
community property does not exist under traditional Islamic law; rather, a single person holds
each property title. All traditional jurists are in agreement that no stipulations can be added that
contradict the basic requirements of marriage or forbid that which is legally permissible. 42 Lastly
here it can be said that stipulation is a uniformed option for women in order to uphold their rights
without violating the Sharia provisions.

41 Based on the tradition of Prophet Muhammad’s great-granddaughter, Sukayna bint Hussein, who included a stipulation in
her marriage contract requiring her husband to remain monogamous.
42 Examples of stipulations that cannot be added include sexual abstinence, removing the husband’s obligation to financially
support his wife, and removing his obligation to provide her with a mahr.

12 | P a g e