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FAMILY LAW. Issues of law affecting the family, known as family law, are central to the shari `ah. The Qur’anic verses which concern themselves with issues of law deal to a great extent with matters affecting the family. Many of the hadith concentrate on the same area, and it is therefore no surprise to find that the leading texts of classical Islamic jurists concentrate similarly on the subject of family law. As John Esposito has said it “has enjoyed pride of place within the Shariah” (1982, p. 13). Family law, perhaps more than any other part of the law, is seen as having an eternal value; the rules laid down in the Qur’an and sunnah are viewed as comprehensive; and human intervention in the area is limited to application and adoption of the principles, rather than to innovative reappraisal. In the words of N. J. Coulson, family law is the “strong hold of the Shariah” (1964 p. 161).

At the heart of family law is the creation, the incidents, and the termination of the contract of marriage which, in the language of the Hedaya (the authoritative work used in South Asia, originally compiled in the late twelfth century), “implies a particular contract used for the purpose of legalising generations.” The classical jurists do not differ substantially among themselves about the particular attributes of family law, although there are of course many differences of detail. Modern eyes often see Islamic family law as patriarchal and insensitive to the position of the woman, who is not viewed as an equal partner in the relationship. Much occidental criticism has concentrated on the right of polygamy, the power of the husband to terminate unilaterally the relationship, the lack of the wife’s similar entitlement, and the rights the husband has over both his wife (as an obedient wife) and as wall (“guardian”) of his children.

In broad outline, the marriage (nikah) is a contract which the groom enters into with the bride or the bride’s legal guardian. The guardian can contract his minor daughter in marriage without regard to her consent, although she does have a right, in certain situations, to rescind the contract as soon as she attains puberty. The contract is created by the two “pillars” of offer ijab) and acceptance (qabul) in the presence of two Muslim male witnesses or one Muslim male and two Muslim female witnesses. The groom contracts to pay his wife a dower (mahr) which arises incident to the marriage. Some marriages are considered void (batil) and others are irregular (fasid). Examples of void marriages are marriages with maharim, for instance, female ascendants and descendants or those related through affinity. In contrast, a fasid marriage is irregular in that, after the required separation of the parties, the particular defect can be removed, at least in theory, and they can then remarry; for example, a fasid marriage occurs when a marriage is entered into in the absence of witnesses. In a fasid relationship, if there has been consummation, then a mahr must be paid to the wife, and any children who are born to the couple are deemed to be legitimate. As polygamy is permitted to the maximum of four wives, a fifth marriage would be fasid.

Divorce by the husband is effected by a unilateral pronouncement known as the talaq which is a repudiation that cuts off the marital tie. The power to exercise talaq belongs to the husband and does not depend on any judicial involvement or consent of the wife. There are a number of different forms of talaq, some seen to be more meritorious than others. The most meritorious is the talaq as-sunna ahsan. When the wife is free from her menstrual flow, the husband pronounces a talaq; he must then refrain from any sexual intercourse for the duration of the `iddah period, which is a period of three menstrual cycles or three months in the case of women who no longer menstruate. At the end of this time, the marriage is terminated. The wife’s right to bring a marriage to an end (khul `) is very restricted; it involves consent of the husband and consideration paid by the wife. Maliki law, in particular, gives prominence to the qadi (judge) who, in certain situations, can separate the parties.

During the marriage, the wife is entitled to maintenance and support which includes food, clothing, and accommodation. This entitlement, however, terminates after the `iddah period on a divorce, and there is no ongoing entitlement to financial assistance. The entitlement can also be suspended if she is “disobedient,” for example, if she refuses to acquiesce in the husband’s desire that she not leave the house. Legal adoption of children is not permissible in Islamic law. The mother initially has the entitlement to custody (hadana) of a child, but the father acquires custody as soon as the child reaches a certain age. Although each school has different rules, the mother’s custody of a child is not extended beyond the age of puberty, by which time, according to all schools, the father has acquired the residual custodial right over the child.

Reforms in Family Law. The emphasis on the preeminent position of the husband and the marked absence of equality within the family between husband and wife were both seen as handicaps by those involved in the drive by some Muslim states toward a process of westernization. Reformers were able to adopt stratagems not unknown in the Islamic world. Reforms in the family law area were designed to solve particular perceived problems in an eclectic manner, formally following the jurisprudential principle of taqlid (imitation) and based on the right of the ruler to define and confine the limits of judicial intervention (siyasah shar`iah). Thus, differences of detail between the schools have enabled reformers in Hanafi countries to adopt the stance taken by jurists of schools other than their own in situations where a change has been seen as desirable. For instance, in 1915, the Ottoman rulers enacted legislation by imperial edict designed to improve the legal status of Muslim wives and provide them with certain rights to petition for divorce. These rights, which were not available in the dominant Hanafi law of the Ottoman Empire, were based on Hanbali and Maliki law and the “weaker” minority Hanafi doctrine. Similarly, the criminal law was used to introduce what were seen to be improvements to family law; for instance, in Egypt in 1923 it was made a criminal offense for a registrar to register a marriage when the bride was not above the age of sixteen and the bridegroom not above the age of eighteen. Egypt used procedural devices to restrict further the solemnization of child marriages by precluding the court from hearing any claim arising out of a marriage if the husband had not attained the age of eighteen and the bride the age of sixteen at the time of the litigation, and the courts were barred from considering the question of a disputed marriage unless the marriage had been registered. These early reforms were followed by the adoption of a somewhat more unorthodox approach, namely, talftq (“combining together” the doctrine of one school or jurist with another). This approach allowed reforms viewed as socially desirable to be introduced, while ensuring that there was no significant departure from the shari `ah.

After 1945, however, reforms tended to be based more on the alleged right of a Muslim state, through its rulers, to exercise ijtihad (search by independent deduction). Perhaps the most celebrated example of this approach is the abolition of the entitlement of polygamy  by Article 18 of the Tunisian Code of Personal Status (1956), based on a reinterpretation of surah 4.3, which states “Marry women of your choice, two or three or four; but if ye fear that ye shall not be able to deal justly [with them], then only one. . . .” The Tunisians equate justice not merely with nafaqah (“financial support”) but also with love and affection. It is then argued that only the Prophet can treat two wives equally in this way; therefore, in today’s conditions the irrebuttable presumption is that a Muslim husband cannot fulfil the requirements laid down in the Qur’an.

Reforms in other Muslim countries relating to polygamous marriages have not been so dramatic; most countries simply make second marriages dependent on the permission of a court (for example, Syria, 1953; Iraq, 1959) or an arbitration body (for example, Pakistan and Bangladesh, 1961). Similarly, stipulations can be made in the marriage contract that the husband cannot have a co-wife. If he does take a second wife, then the first wife is entitled, for that reason alone, to seek dissolution of the marriage (Jordan, 1976; Morocco, 1958). Indeed, even in the absence of such a stipulation, the Moroccan qadi may consider whether the second marriage has caused any injury to the first wife. The end result of all these developments has been the enactment of Codes of Family Law in almost all Islamic countries.

Reappraisal of Reforms. Even such limited reforms have been subjected to critical reappraisal in the light of Islamic revivalism. Two examples of this new development illustrate the trend that now appears to be active throughout the Muslim world, the first from Egypt, the second from Pakistan. In Egypt, Law 44 of 1979 was issued by a presidential decree which amended the 1920 and 1929 laws. A pronouncement of talaq by the husband is required to be registered, and notification of the talaq must be given to the wife. The divorce does not take effect if the notice does not reach her. In the event of a judicial application by the wife for a divorce, which is dealt with by arbitrators, the court is empowered to dissolve the marriage, although the wife must pay compensation. These reforms were far from radical, yet the 1979 law has not survived; in July 1985, the Constitutional Court adjudged it unconstitutional. A new law, Law 100 of 1985, was enacted, which complies more closely with the perceived orthodoxy. For instance, Article 6A in the 1979 law gave a first wife the right to ask for a divorce solely on the basis of a second marriage by her husband. The new Article 11-A of Law 100 of 1985 states that a first wife who finds herself in this position must petition a court for a divorce, alleging that she has suffered harm as a result of her husband marrying a second wife; the court must then try to reconcile the parties, and it can grant a divorce only after such endeavors have proved to be unsuccessful. Thus, the attempt in 1979 to introduce a substantial reform which would have given the first wife an automatic right to terminate the marriage in these circumstances has been replaced by a much more limited provision. Islamic tendencies were primarily responsible for the demise of this short-lived 1979 reform.

Perhaps an even more dramatic example of this trend can be seen in Pakistan. The reforming Muslim Family Laws Ordinance 1961, which among other matters imposes restraints on the husband’s power to divorce his wife by talaq (s 7) and on his right to marry polygamously (s 6), has been subjected to executive, legislative, and judicial attacks of considerable ferocity. The Federal Shariat Court in 1988 ruled that a pronouncement by a husband of a talaq which complies with the provisions of Islamic law is not invalid solely on the basis that no notice is given to the chairman of the Union Council as required by section 7 of the Muslim Family Laws Ordinance 1961. This approach has been affirmed in Karachi in a case called Ashique Hussain v. First Additional judge (1991; PLD Kar 174) where it was held that the applicant’s failure to send the notice of the talaq to the chairman under the provisions of section 7 would not be of any consequence so long as the applicant had pronounced talaq with an intention to dissolve the marriage. An important development toward the so-called islamicization of the laws in Pakistan has been the introduction in 1985 of Article 2A of the Constitution, which inserts, as a substantive provision, the Objectives Resolution of 1949. This refers to, inter alia, “. . . sovereignty over the entire universe” belonging “to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people being exercised within the limits prescribed by him” as “a sacred trust.” Some have argued that this development undermines all the “non-Islamic” provisions in Pakistan law, including the 1961 ordinance. A number of shari `ah bills have been brought forward, the most recent in April 1991 by Prime Minister Nawaz Sharif. The National Assembly voted to approve the bill, and it was endorsed by the Senate on 28 May 1991.

Is the return to a form of Islamic orthodoxy, which is illustrated by the Egyptian and Pakistan instances but which occur from Algeria to Malaysia, a passing phase? Or is it an expression from the Islamic world that some of the reforms of the earlier part of the present century have gone too far in the direction of simply aping the West and ignoring completely the aspirations of the Muslim community? The wholesale abandonment of Islamic family law for whatever reason is an approach which no longer commands support. The approach taken at one time by some elements of Muslim opinion not to meddle with the Qur’an and sunnah but to place it entirely on one side and adopt a code of Western inspiration (as in Turkey in 1927) is not likely to be copied. Flirtations with secular radicalism (Somalia, 1975) would appear to be of limited significance on the wider stage. Many of the debates which one associates with discussions on family law in the Western world, such as the rights of unmarried couples, are simply of no consequence in the Islamic world.

It is probable that the mood of Islamic revivalism will involve the continuing dismantling of some aspects of the reform tendencies of the twentieth century. It is, however, highly unlikely that such reforms as those in the field of child marriages, the limitations on polygamy, and the equalization of divorce entitlement between husband and wife will be undermined. Economic considerations could well be as important in this context as religious orthodoxy. More probable to occur in the last years of this century is the continuation of the process whereby Islamic states adopt sympathetic minority opinions of early jurists, or indeed the more acceptable law of another school, as a more accurate reflection of the Islamic ideology of a particular Islamic country.

[See also Law; Marriage and Divorce; Polygyny]

BIBLIOGRAPHY

Anderson, J. N. D. Law Reform in the Muslim World. London, 1976. Important description, by one of the most respected commentators on the Islamic world, of trends in the Muslim world up to the mid1970s. Concentrates on family law reform.

Beck, Lois, and Nikki R. Keddie, eds. Women in the Muslim World. Cambridge, Mass., 1978. Includes a valuable essay by Coulson and Hinchcliffe, “Women and Law Reform in Contemporary Islam.” Coulson, Noel J. A History of Islamic Law. Edinburgh, 1964. Masterly discussion of the development of Islamic law, with considerable emphasis on family law.

El Alami, Dawoud S. The Marriage Contract in Islamic Law. London and New York, 1992. Analysis of marriage law as applied in Egypt and Morocco. Useful for its discussion of Egyptian and Moroccan court decisions.

Esposito, John L. Women in Muslim Family Law. Syracuse, N.Y.,

1982. Examination of the process, methodology, and extent of modern legal reforms, focusing on Pakistan and Egypt. Mahmood, Tahir. Family Law Reform in the Muslim World. New Delhi, 1972. Useful examination of the pace of reform up to 1970. Mahmood, Tahir. Personal Law in Islamic Countries. New Delhi, 1987. Contains the text of family law statutes from twenty-two countries, together with a helpful comparative overview, and an exceptionally good bibliography at the end of each chapter.

Nasir, Jamal J. The Islamic Law of Personal Status. London and New York, 1986. Systematic account of Islamic family law under both shari ah and modern enactments, particularly in the Arab states. Pearl, David. A Textbook on Muslim Personal Law. 2d ed. London, 1987. Introduction to the main aspects of Islamic family law.

DAVID STEPHEN PEARL

Azhar Niaz Article's Source: http://islamicus.org/family-law/
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  • writerPosted On: November 7, 2012
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