Question Summary:
Re: Muslim Marriage Contract …. Are Muslims under obligation to accept this condition when the judgement of the court is contrary to the Shariah?

Question Detail:

Re: Muslim Marriage Contract
http://www.muslimparliament.org.uk/Documentation/Muslim Marriage%
20Contract.pdf
The above-mentioned document is being put forth primarily by "The Muslim Institute" with the endorsement and backing of numerous Islamic organisations (listed on the front) to be used by Muslims as evidence for their Marriage.
It is written in the introduction (last paragraph/page 1) that the original draft was prepared by Mufti Brakatullah and he continued to lend his full support to the project, since Mufti Saheb is a graduate of Darul-uloom Deoband his support to this project places the Ulama in the spot-light.
I would like to understand your position on this document and the legality of the Nikah done under the explanatory notes in particular according to the Hanafi Madhab:
1)    Point 5/ Witnesses: According to Islamic law, a witness should be sane, adult and reliable. This requirement is gender/faith neutral. Hence, the Muslim Marriage Certificate requires to be witnessed by `two adult witnesses of good character'.
Can an Islamic Nikah be witnessed by two women only?
2)    Point 6/ Wali: However, parental or guardian's legal role finishes when children reach adulthood. Thereafter their role is optional and complementary. Hence the Muslim Marriage Certificate does not require the approval of the parents. It may be correct that Nikah doesn't require the approval of Parents, but is this sound advice for youngster?
3)    Point 7/Divorce: If the divorce is initiated by the wife. and the husband is found to be at fault by the arbiters she does not lose her Mahr. But if she cannot prove his fault, she has to return to her husband whatever Mahr amount she has already received.
If a woman cannot prove the fault of the husband, does she have to return the Meh'r ONLY or does she herself has to return into the fold of marriage?
Furthermore your opinion on the following matters from the terms of conditions section would be appreciated:
4)    Obligations of the husband:
In addition to the mutual duties and obligations, the husband undertakes not to:
a) abuse his wife/child(ren) verbally, emotionally, physically, or sexually
b) desert/be absent from the marital home for more than 60 days unless by mutual agreement
c) withhold economic contribution towards his wife/family
d) sexually transmit disease or other transmissible diseases
e) misuse /interfere with the wife's property
There is no mention of "knowingly or deliberately" in any of these clauses? Can such conditions be attached to marriage? And then be enforced upon the husband?
5)    Special Conditions:
a)    Both parties reserve the right to amend/alter the contract through mutual written agreement.
b)    Both parties undertake to stay loyal to each other and never to engage in extra-marital affairs with the opposite or same sex.
c)    The husband is not to enter into formal or informal nikah
(Muslim marriage) contract in the UK or abroad with another woman, as it is unlawful under the laws of England and Wales as well as the Scottish legal system.
d)    The husband is to procure separate/independent accommodationfrom shared or parental abode.
e)    The husband delegates his power of divorce (talaq al-tafwid) to his wife.
Can conditions (a, b, c & d) be attached to marriage? And are they enforceable on husband and/or husband (where applicable)?

What is your opinion on condition (e)?
6)    Arbitration and adjudication:
a)    In matters of child(ren), custody and property
possession/division the decision of a British courts will be acceptable to both parties.
Are Muslims under obligation to accept this condition when the judgement of the court is contrary to the Shariah?
Please understand that my consideration are purely from an "enforcebale perspective and whether can be made into conditions for Nikah", anyone following the Sunnah should look after his/her spouse and fulfill their obligations to the best of their ability.

Answer :

In the name of Allah, Most Gracious, Most Merciful
Assalaamu `alaykum waRahmatullahi Wabarakatoh
At the outset we wish to clarify that our observations are based on the limited documentation available in the link provided to us in the query. If there is any additional information which proves the information provided to be inadequate, our response mentioned hereunder will not apply.
We acknowledge that there are many issues mentioned in the Muslim Marriage Contract which are not in accordance with the rules and principles of Shari’ah, some of which have been made mention of by the questioner. However, our major concern is the enforcing of Shari’ah law through a civil court, as stated on the first page of the contract which reads as follows:
The Muslims married in Britain will be able to access the Brirish courts regarding marital issues whilst at the same time enabling British courts to enforce the rights of parties to a Muslim marriage in accordance with the Shari’ah.
We understand from the abovementioned clause that the British court will pass a ruling according to Shari’ah when Muslims resort to the British court to resolve marital issues.
In order to understand the harms of such a clause, we wish to brief you with a similar scenario that took place in South Africa. The Muslims of the country had drafted a Muslim Personal Law (MPL) Bill and had intentions to introduce it. However, we feared that the Divine Law will be contaminated and interpolated by the introduction of such a Bill. The Constitutional Law of South Africa has stated that statutes and laws have to be interpreted in a way that is consistent with the Constitution and its overall purpose and objectives. The Constitution allows for the development of Common Law, Customary Law and Religious Law; but only so far as these laws are consistent with the Constitution. It is an undeniable fact that the Constitutional laws of non-Muslim countries are not in accordance with the rules of Shari’ah and many such laws violate the basic principles of Shari’ah. If the Constitutional Court or the High Court were to interpret the MPL statute in terms of the Constitution, it will be considered the jurisprudence and every court will have to follow that, even if is against the principals of Shari’ah. Hence, a so-called Shari’ ruling will be passed by the court which will be contradictory to the teaching of Shari’ah. This is clear contamination and interpolation of Shari’ah.
We fear that similar problems will be faced with the introduction of the Muslim Marriage Contract, wherein the British court is allowed to pass a Shari’ ruling in marriage disputes between Muslims. It is very unlikely that Shari’ law will be given preference when it contradicts the Constitutional Law of the country. Hence, this will lead to the contamination of the Shari’ law. This could lead to the separation of spouses where the marriage is still intact according to Shari’ah, validation of a marriage which in reality is invalid according to Shari’ah and many other violations of the Divine Law.
Therefore, on the premise that the information acquired and our understanding is correct, we would not encourage the introduction of such a contract. We do not question the intention of the ‘Ulama and other organisations and individuals who have contributed to the introduction of the contract, and are confident that they had the best interest of the Ummah in mind. However, contamination in the principles of Shari’ah will not be tolerated, and the harms emanating with the introduction of such a contract cannot not be overlooked.
As an alternative, we suggest that Muslims should seek arbitration and reconciliation through a Shari’ah council or body, and effort should be made, by ‘Ulama and other Muslims in professional fields, for a resolution to be passed by the British court, wherein rulings passed by Shari’ah bodies are recognised and accepted by the British court. Moreover, all Muslim contracts drafted should be checked and approved by reliable and reputable ‘Ulama of the country, who are aware of the application of such contracts.
Hereunder is the link to an article found on our website, in which detail discussions pertaining to the MPL issue have been mentioned.
http://www.al-inaam.com/misc/mpl-const.htm

And Allah knows best
Wassalam
Ml. Abu Yahya,
Student Darul Iftaa
Checked and Approved by:
Mufti Ebrahim Desai
Darul Iftaa, Madrassah In'aamiyyah