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Sharia Family Law and Women
Sharia Family Law and Women
Islamic sharia law represents a serious and growing threat to the safety and equality of women, and indeed children. The evidence for this assertion can be seen in both Islamic doctrine, and in the practice of Islamic family legal throughout states governed by sharia law. There are four main areas of sharia law that expressly discriminate against women in family law. As with the laws of Britain, family law and criminal law frequently interact and when sharia criminal punishments are applied to matters involving marriage for example, women risk terrible and lethal punishments – including being stoned to death.
Sharia Watch is deeply concerned about the growth of the use of Islamic sharia law in family matters in the UK, and the beliefs and aims of the individuals and organisations which facilitate this increasingly utilised regulatory system. (See also ECHR ruling on Sharia Law)
The main areas of concern include underage marriage, domestic violence, divorce and child custody, and the value of women’s testimony during family law hearings.
Khadija died three years before the Prophet departed to Medina. He stayed there for two years or so and then he married 'Aisha when she was a girl of six years of age, and he consumed that marriage when she was nine years old. Sahih Bukhari 5:58:236
'A'isha (Allah be pleased with her) reported: Allah's Apostle (may peace be upon him) married me when I was six years old, and I was admitted to his house when I was nine years old. Sahih Muslim 8:3310
The above quotes are extracted from a section of Islamic doctrine known as hadith. These are essentially a record of the actions and sayings of the Islamic Prophet Mohammed during his lifetime. The primary hadith are Sahih Bukhari, Sahih Muslim, Abu Dawud, and Al-Muwatta. Together with the Quran and Islamic jurisprudence, the hadith form the basis of sharia law and are widely implemented – with little variation – in Islamic states across the world.
Aisha is perhaps the most revered, and most certainly the most widely-known, of Mohammed’s many wives. While there are small numbers of Muslims who dispute the age of Aisha when she was married to Mohammed, the age recorded in the hadith above is more widely accepted to be accurate. It is on the basis of these hadith that the marriage of young girls is practiced in many Islamic states.
In Saudi Arabia for example, a country which is governed by sharia law (according to its own constitution) in 2009, a judge, Sheikh Habib Abdallah al-Habib, refused to annul the marriage of an 8 year old girl and a 47 year old man (a marriage allegedly arranged by her father in settlement of a debt) and stated "We should know that Shariah law has not brought injustice to women." http://edition.cnn.com/2009/WORLD/meast/01/17/saudi.child.marriage/ He added that "It is incorrect to say that it's not permitted to marry off girls who are 15 and younger".
Dr. Salih bin Fawzan – a member of Saudi Arabia’s highest religious council – issued a fatwa (religious ruling) in 2011 that girls could be married “even if they are in the cradle.” According to author Raymond Ibrahim , the cleric concluded “It behooves those who call for setting a minimum age for marriage to fear Allah and not contradict his Sharia, or try to legislate things Allah did not permit. For laws are Allah’s province; and legislation is his exclusive right, to be shared by none other. And among these are the rules governing marriage.” http://www.frontpagemag.com/fpm/99768/new-saudi-fatwa-defends-pedophilia-marriage-raymond-ibrahim
It is true to say that there is some debate at a current around child marriage and its justification in Islam. This debate will doubtless continue, however for the moment, the practice of child marriage remains widespread and is defended by numerous clerics in the name of sharia. In Yemen for example, attempts to raise the age of marriage for girls was dismissed as “un-Islamic” http://edition.cnn.com/2013/09/15/world/meast/yemen-child-bride/ by clerics in that country and as a result, child marriage remains widespread.
The matter of child marriage and sharia has also caused much controversy here in the UK. An undercover investigation in 2013 revealed that several major mosques across the country had shown themselves willing to marry underage girls http://www.itv.com/news/2013-10-06/uk-imams-agree-to-perform-underage-marriages/. At the Central Jamia Mosque Ghamkol Sharif in Birmingham, a cleric agreed to marry a 14 year old girl and said “In Islamic law she is ok to get married because she will be the age of maturity”. Representatives responded to the secret recording stating “though Islamic sharia law allows marriages in special circumstances in the Muslim world when girls reach puberty, with the consent of the girls and parents concerned, we do not live in a Muslim country, so we do not practice that”. Following the ITV broadcast, Sheikh Ibrahim Mogra, of the Muslim Council of Britain, condemned the underage marriage girls and said “UK law does not allow the marriage of underage girls and that’s all that matters to us here. In this country, it is illegal, it is forbidden and no imam should be allowed to conduct the marriage of an underage child.” http://www.dailymail.co.uk/news/article-2447720/Clerics-18-mosques-caught-agreeing-marry-girls-14-Four-imams-investigated-undercover-operation.html It is extremely important to pay close attention to the exact words used by both Mogra and the Central Jamia Mosque Ghamkol Sharif mosque. Neither claim that underage marriage is not permissible under sharia law, nor do they condemn it on the grounds that it is an appalling crime against young girls. Sajid Zafar Hussain, the cleric who agreed to marry the young girl, was initially suspended by the mosque, but was welcomed back to his job not long afterwards. http://www.birminghammail.co.uk/sport/football/football-news/jamatia-islamic-centre-protests-child-6307565
The Iranian and Kurdish Women’s Rights Organisation (IKWRO) claimed in 2012 that large numbers of girls, as young as 9 years old, were being forced in to marriage in London. A report from the Islington Tribune said that 30 girls, in that borough alone, had been married by Islamic clerics in one year. The Government’s Forced Marriage Unit (FMU) revealed that a girl of 5 years old was among 400 they had helped that same year. http://www.bbc.co.uk/news/uk-17534262 The FMU said that 29% of the cases it sees involve underage girls.
Men have authority over women because God has made the one superior to the other, and because they spend their wealth to maintain them. Good women are obedient. They guard their unseen parts because God has guarded them. As for those whom you fear disobedience, admonish them and send them to beds apart and beat them. Then if they obey you, take no further action against them. Quran 4:34
The above verse is taken from the Islamic holy book the Quran. It is one of the most significant verses in the matter of women’s rights and equality and clearly represents major challenges in the battle for the rights of Muslim women.
Domestic violence against women is a major issue across the sharia-controlled world. According to the Pakistan Tribune in 2011, a staggering 90% of women in that country suffer domestic abuse. http://tribune.com.pk/story/189294/pakistan-ranks-3rd-on-list-of-most-dangerous-countries-for-women/ In 2013, Human Rights Watch reported that “for victims of domestic violence, there was "no protection from the government." http://www.refworld.org/docid/51222ba42.html Other countries, such as Saudi Arabia and Iran, also have worrying records on the rights and protections of women.
Domestic violence against Muslim women here in Britain is also a matter of urgent concern. In 2013, the BBC carried out an undercover investigation in to the practices of the Islamic Sharia Council – Britain’s largest sharia council network – and its approach to cases of domestic violence. An undercover reporter approached the council and met with senior cleric Suhaib Hasan. Upon complaining that she had been subjected to domestic violence, Hasan replied “I think you should be courageous enough to ask this question to him: Just tell me why you are upset huh? Is it because of my cooking? Is it because I see my friends? So I can correct myself”. http://www.youtube.com/watch?v=XOaJ_y8piNE The reporter was then referred to Hasan’s wife for “counselling” where she was asked “Did you, before he come, did you try to dress up and have a make up and get ready or not?” She also asked if “the food is ready, the house is clean and you are ready as well? You did not ignore yourself?”
Attitudes towards women expressed by senior members of the Islamic Sharia Council are deeply alarming. The above quotes demonstrate where the ISC apportions blame when a woman is subjected to domestic violence; the blame is placed on the woman herself.
Haitham al-Haddad is another senior member of the ISC and hears and delivers rulings on domestic violence cases. In lecture entitled ‘Why Marriages Fail’, Haddad was recorded saying the following: “A man should not be questioned why he hit his wife because this is something between them. Leave them alone. They can sort out their matters among themselves. Even the father of the daughter who is married to the man, he should not ask his daughter why you have been beaten or hit by your husband.” http://www.youtube.com/watch?v=Bn0meVQiOuU He claimed these were the words of Mohammed and should therefore be obeyed.
In a BBC interview, the spokesman of another large body of sharia tribunals – the Muslim Arbitration Tribunal – made the following statement: “We do not get involved in criminal cases, but the only sort of remit we are looking at at the moment, and we are discussing it with the authorities like the CPS and the police at the moment, is we desire to give – in the case of domestic violence – the opportunity to look at an alternative form of resolution.” http://www.youtube.com/watch?v=XsvHo9z_fL0 Campaign group One Law for All http://www.onelawforall.org.uk/ contacted the CPS who denied any such discussions had taken place.
On marital rape, Maulana Abu Sayeed, President of the Islamic Sharia Council told reporters: “Clearly there cannot be any rape within the marriage. Maybe aggression, maybe indecent activity... Because when they got married, the understanding was that sexual intercourse was part of the marriage, so there cannot be anything against sex in marriage.” http://www.independent.co.uk/news/uk/home-news/rape-impossible-in-marriage-says-muslim-cleric-2106161.html
It is clear that the Islamic Sharia Council and the Muslim Arbitration Tribunal (and other organisations applying sharia law) are a serious threat to the safety of women. What is less often recognised however is the danger that is presented by such attitudes to children.
British laws have determined that witnessing violence against a parents constitutes harm and as such, brings children under the protection of local authorities. On most occasions, local authorities become aware of violence through police arrests or court hearings in the mainstream system. The growing expansion of sharia tribunals mean that it will inevitably be that fewer children come under the radar of local authorities as being at risk of domestic violence, if such cases are heard in closed sharia ‘courts’. A further area of concern however is the matter of child custody, and the potential danger sharia rules in this regard present for young children in Muslim families.
The Islamic Sharia Council runs the largest network of sharia councils in Britain. It deals primarily with matters of family law and describes itself as “an authoritative body, consisting of a panel of scholars, representing many established institutions in the UK” http://www.islamic-sharia.org/about-us/about-us-3.html. In 2002, the Council claimed to have “dealt with almost four thousand five hundred cases” http://www.islamic-sharia.org/about-us/about-us-7.html – the majority of which concerned matters of family law.
On October 25th 2011, in a broadcast entitled ‘What Would Sharia Do?, Aina Khan – a family law solicitor who works with sharia law clients – stated the following:
“Traditionally, sharia councils dealt only with Islamic divorces asked for by women, with time, they’ve been asked to do mediated solutions for example with children’s matters and finance, because the law is so very expensive and so slow so these alternatives have been set up”Aina Khan, Current TV, What Would Sharia Do?, 25th October 2011.
In beginning to advise on matters of family law, the Islamic Sharia Council states the following: “When spouses separate by divorce or annulment, these welfare responsibilities get also split according to best abilities of each parent”http://www.islamic-sharia.org/children/islamic-perspective-on-child-cust.... This statement instantly raises some alarms as it does not state, as with English law, that the interests of the children are paramount but instead places emphasis on parents. It goes on to say “While fathers are vested with financial burden and legal guardianship roles, mothers are given role of physical carer and emotive guardian of child(ren)” http://www.islamic-sharia.org/children/islamic-perspective-on-child-custody-after-divorce-3.html. This principle implies a sex-related role for women and men and does not take in to account the attributes of the individual parent (without regard to sex) nor does it place the rights or needs of child in first priority.
The Council goes on to state that it believes women to be better placed for raising small children and would “give first preference to a mother’s claim to physical custody of her young child” http://www.islamic-sharia.org/children/islamic-perspective-on-child-custody-after-divorce-3.html However, this only applies for as long as the mother does not remarry.
“A woman came to the Prophet and said: 'Truly my belly served as a container for my son here, and my breast served as a skin-bag for him (to drink out of) and my bosom served as a refuge for him; and now his father has divorced me, and he (also) desires to take him away from me.' The Prophet sallalahu Alaihe wasallam said: 'You have a better right to have him, as long as you do not marry again” http://www.islamic-sharia.org/children/islamic-perspective-on-child-custody-after-divorce-3.html
Under sharia law, according to the Council, the period for which children live with their mother is referred to as the “period of female custody”. This period ends, and custody of children awarded to fathers, at a preset age. The age will depend upon the interpretation or the school of Islamic law applied. The Council states:
““Till the age of seven the mother has the sole right to have the custody of the child if she marries someone who is not related to the child, she loses her right in the custody. If the child were still under seven, he would be given custody of a female (preferably among the mother's relatives like his maternal aunt or grandmother). But if he is above seven, he is no more in need of a woman's care and he is to be in custody of the father” http://www.islamic-sharia.org/children/islamic-perspective-on-child-custody-after-divorce-3.html.
It further states:
“Under the Hanafi School, female custody of a boy ends when he is able to feed, clothe, and cleanse himself. Most Hanafi jurists set this age of independence at seven years, although some set it at nine. Hanafi jurists differ on when a mother’s custody of her daughter ends. Most maintain that the mother’s custody ends when the girl reaches puberty, set at either nine or eleven years of age”http://www.islamic-sharia.org/children/islamic-perspective-on-child-custody-after-divorce-3.html.
The above statements on the position of sharia law with regard to the raising of children are demonstrative of conflict between sharia law and the principles of the Children Act. It is fair then to question that would happen, for example, if a father were abusive or violent towards his children, and whether the practice of sharia law in such cases places children within a Muslim family at a distinct disadvantage and subjects them to a greater risk of harm. The Islamic Sharia Council does not address this issue.
Women do not have unilateral rights to divorce under sharia law; she must obtain the permission of her husband or (male) Islamic clerics. This is the case even when she is physically abused or raped.
In Islam, there are separate rules for divorce for men and women under the terms of Islamic law. When a man initiates divorce, the procedure is called ṭalaq. When a woman does the same, it is known as khula. Talaq is easily obtained (a man my divorce merely by repeating talaq on three occasions), while obtaining khula is typically very difficult.
According to sharia law, there are two reasons a wife can obtain divorce: when she can prove that the husband did not have intercourse with her for more than two months, or if the husband does not provide her with what she needs for living such as food and shelter.
When seeking divorce, women face vast legal and financial obstacles. In many cases, the woman must repay her dowry and marriage expenses. She also has to forfeit child custody (as above) if the child is older than seven years. If a child is less than seven years old at the time of divorce, she will have to hand over the child when he/she reaches that age. She will then lose access rights and rights to make decisions regarding the life of the child.
A woman must pay to obtain a divorce, whereas men must not. Furthermore, when attempting to convince a sharia court to grant her a divorce, a woman’s word to the court must be witnessed. This is due to the sharia requirement that a woman’s testimony must be corroborated.
In a report Equal and Free, published in 2012, women who had been through the sharia divorce process in the UK testified as to their experiences. These included:
“The Sharia Council then insisted that I brought along two Muslim witnesses to attend the Sharia Council with me to confirm that I was telling the truth. However, Janaid did not require any witnesses because he is a man. I did not know any Muslim women who could be witnesses and I didn’t want to get anyone from my community involved.”
Under sharia, it is also the case that women cannot marry of their own volition; they must have the permission of a male family member. In the Equal and Free report, the following testimony was given:
“A leader of my community visited me and told me that he wanted me to marry Khaled. I felt under enormous pressure to accept his proposal. The Imam told Khaled and me that he required permission from a male guardian from my family before he could marry us. I told him that I am in my late 40s, I have travelled all over the world, faced death on numerous occasions, provided for my children and supported male members of my family. “I have grey hair – what kind of mentality is this?” I said to him. The Imam insisted that he was applying Islam. Khaled travelled to Jordan to gain written permission from my 11-year-old son, who represented my guardian according to the Imam. My son’s written permission stated that I could marry Khaled. I received a copy of my son’s letter and I still have a copy of it. I agreed to the marriage at the Imam’s home.”
In summary, the dictats of Islamic sharia law reduce women to the status of property. Under some forms of sharia, such as that practiced in Saudi Arabia, a woman’s entire life is determined by her male family members - including her marriage or divorce, whether she can have medical treatment, and even whether she can work or leave the home.
In sharia criminal law, women are subject to the death penalty if they are accused of adultery. This can often take the form (such as in Iran) of death-by-stoning; a woman is buried to her chest in the ground and stones thrown at her head until she dies. The authority for stoning is usually derived from the following hadith:
A bedouin came to Allah's Apostle and said, "O Allah's apostle! I ask you by Allah to judge My case according to Allah's Laws”. His opponent, who was more learned than he, said, "Yes, judge between us according to Allah's Laws, and allow me to speak”. Allah's Apostle said, "Speak”. He (i .e. the bedouin or the other man) said, "My son was working as a laborer for this (man) and he committed illegal sexual intercourse with his wife. The people told me that it was obligatory that my son should be stoned to death, so in lieu of that I ransomed my son by paying one hundred sheep and a slave girl. Then I asked the religious scholars about it, and they informed me that my son must be lashed one hundred lashes, and be exiled for one year, and the wife of this (man) must be stoned to death”. Allah's Apostle said, "By Him in Whose Hands my soul is, I will judge between you according to Allah's Laws. The slave-girl and the sheep are to be returned to you, your son is to receive a hundred lashes and be exiled for one year. You, Unais, go to the wife of this (man) and if she confesses her guilt, stone her to death”. Unais went to that woman next morning and she confessed. Allah's Apostle ordered that she be stoned to death.
Sahih Bukhari 3:50:885
The Hudood Ordinances, introduced in Pakistan in 1979, provide that if a woman alleges she has been raped, she must provide four male Muslim witnesses to the fact. If she cannot do this, she can charged with adultery – a crime which carries the sentence of death by stoning. In 2002 for example, a young woman in Pakistan accused her brother in law of rape.http://www.nytimes.com/2002/05/17/international/asia/17RAPE.html The judge rule that in making her accusation, she was confessing to adultery – she was sentenced to death by stoning. The jailing of rape victims is more common however, and in Pakistan, according to a report in 2003, around 80% of the women in prison in Pakistan were there for “moral crimes” – including failure to provide four male Muslim witnesses to their rape. In Afghanistan, around half of women in prison are there for being victims of rape.http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/10070377/Sharp-rise-in-jail-terms-for-Afghan-rape-and-abuse-victims.html
Under sharia family rules, a woman’s testimony is also worth half of that of a man. She has no unilateral divorce rights – even when subjected to violence, no child custody rights (when the child reaches a certain age), and child marriage and marital rape are widely condoned – including by organisations in Britain.
The sharia family law rules are being applied in a de facto parallel legal system throughout the UK, with the full knowledge of successive governments and the full support of high-profile public figures.