A remarkable feature of Muslim matrimonial law is that it permits the spouses to enter into agreements, either at the time of marriage, or even thereafter. These agreements, relate mainly to two aspects: (i) regulation of matrimonial life, and (ii) stipulation for dissolution of marriage on the happening of stipulated contingency.
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It is obvious that only those agreements will be enforced which are not unlawful or contrary to public policy. It has been held that an agreement for future separation between a Muslim husband and wife is void as being against public policy.
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Mulla takes a different view. According to him, “If a Mahomedan wife can lawfully stipulate for a divorce there is no reason why she cannot stipulate for future separation, at all events if the separation is for a justifiable cause.
Such stipulations can hardly be said against the policy of the Mahomedan law”. With this view the present writer is in respectful agreement. Ameer Ali holds the view that agreements stipulating for the following are enforceable:
(a) The husband will not contract a second marriage during the subsistence of the first.
(b) The husband will not remove the wife from the conjugal domicile without her consent.
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(c) The husband will not absent himself from the conjugal domicile beyond a certain period.
(d) The husband and wife will live in a specified place.
(e) Certain amount of dower will be payable immediately after marriage or within a stated period.
(f) The husband will pay to the wife a fixed sum for maintenance.
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(g) The husband will maintain the children of the wife from her former husband.
(h) The husband will not prevent her from receiving visits from her relations whenever she likes.
It is submitted that the better classification of such agreements is the one suggested here at the beginning of this Part. Under the former head, viz., regulation of matrimonial life, the most usual stipulations relate to the residence and the payments of periodic sums to the wife by way of maintenance or otherwise.
Under the second head, viz., the stipulations for dissolution of marriage on the happening of stipulated contingency, the commonest cases relate to such conditions that the wife will have a right of pronouncing divorce on herself in the event of the husband taking a second wife, or treating her with cruelty, or ill-treating her otherwise. We proceed to examine some illustrative cases.
It seems that reasonable conditions regarding the wife’s right to reside at a stipulated place are enforceable. In some cases it has been held that the stipulation in an agreement that the wife should have liberty to live with her parents after the marriage has been held void. However, under certain circumstances such stipulations may be valid. Thus, where the husband is a khana damad, the stipulation that the cohabitation after marriage will be at her parental home was held valid.
Similarly, stipulation that in the event of husband taking a second wife, the first wife will have a right to reside at her father’s house and to a certain sum of maintenance per month was held valid. In Saifuddin Soneka, a stipulation with the third wife by a husband, already having two wives, that she will have the right to divorce him or live at her father’s house in case he brought any of his former wives to live in the matrimonial home was held enforceable.
Fyzee opines that “if the agreement provides that the wife shall have the absolute and unqualified right to reside permanently with her parents, the court will hesitate to enforce such a stipulation as it would create moral, social and legal difficulties.” The Shias take a liberal view.
An agreement that the husband will not take away his wife from her own city is binding. Thus, if a man marries a woman on the express condition that she would be allowed to reside with her own people or in a specified country, then such a stipulation is valid. The Shias hold that all conditions in agreements between the spouses are valid unless they go to legalize what is forbidden or forbid what is permissible.
Agreements stipulating that certain amount will be paid periodically or in lump sum, either by way of maintenance or otherwise, to the wife after the marriage or on the happening of certain contingency, are valid and enforceable. In Mydeen v. Mydeen, upon taking a second wife, husband entered into an agreement with his first wife under which he settled certain properties on her for life.
After some time he divorced her and brought a suit for the recovery of the property settled upon her. The court said that his wife was entitled to enjoy the income of the property, notwithstanding the fact that she had been divorced by her husband.
Among the Muslims of rank it is customary to give her some sum of money periodically for her personal expenditure under the kabin-nama or marriage contract, this is known as kharch-i-pandan or mewa-khori. Such stipulations are valid and enforceable. In the leading case on this subject, Khawaja Md. v. Husaini Begum, a father agreed at the time of the marriage of his minor son that he would pay a sum of Rs. 500/- per month to his son’s wife.
This amount was payable by the husband’s father from the date of the reception of the wife in her conjugal home. A charge for his sum was created on the properties of the wife’s father-in-law. The wife lived in the conjugal home for a while, but later on, on account of some differences, left it.
Her suit for the payment of the monthly allowance of Rs. 500/- was decreed against the father-in-law. The court said that once the wife joined the matrimonial home, the amount became payable, irrespective of the fact whether she continued to live there or left it.
We have already seen under the head, “Talak-i-zweez” that if under an agreement entered into either before or after the marriage stipulating that the wife will have the right of pronouncing divorce on the happening of certain events, such as if the husband takes a second wife, then such an agreement is valid, and if the wife so desires, she can exercise the right of divorcing herself.
It should be noted that the breach of a valid condition in a kabin-nama does not necessarily confer a right of dissolving the marriage, unless there is an express stipulation to that effect. If the husband commits a breach of the agreement, the consequences that are stipulated therein will ensue.
It may go to defeat the husband’s suit for restitution of conjugal rights. It may give rise to the wife’s claim for the payment of the entire sum of dower immediately, or to the wife’s right of living separately from her husband.