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October 31, 2014 | Last Updated 8:08 AM
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Comment & Analysis
 
Analysis: Inside the Muslim Ma

Waheeda Amien

There is a lot of misleading and inflammatory information relating to the Muslim Marriages Bill, which is doing the rounds in the Muslim community and popular media.

This article attempts to demystify the bill and to provide accurate information regarding its main features, and what it will mean if it is enacted.

The bill aims to regulate Muslim marriages and divorces within a Sharia framework while at the same time providing protection to women.

For example, the bill requires a marriage officer who is

defined as a person with knowledge of Sharia to solemnise the marriage. This person must inform the parties of their right to enter into a standard contract or, if they wish, to enter into a separate contract.

If the person marrying the couple is not a marriage officer, he must also inform the couple of their right to have their marriage registered. If the person solemnising the marriage fails to comply with these requirements, he may be subject to a fine.

These requirements were inserted into the bill to ensure that parties are made aware of their rights so that they can make informed choices about how they wish their marriage to be governed.

Under the bill, men are allowed to marry up to four wives. They have to apply to court for approval of the subsequent marriage by showing that they will be able to treat their wives equally according to the precepts of the Qur’an.

Regulation of polygamy in the bill is aimed at addressing injustices that are perpetrated by men who marry more than one wife without maintaining them equally.

In many instances, men secretly enter into polygamous marriages and existing wives may only find out about the other wives many years later. Therefore, the bill requires that existing wives be joined in the proceedings when the husband applies for court approval of his subsequent marriage.

The consent of the existing wife is not required. The bill simply affords her the opportunity to be made aware that her husband wishes to remarry and to place information before the court that she thinks is relevant for the court to know.

The bill recognises a husband’s right to talaq his wife, which is a unilateral repudiation of the wife without having to provide grounds. Presently, this right is abused by many men in the Muslim community. They often repudiate their wives arbitrarily, without notice and without their wives being aware that they have been repudiated.

The bill regulates this right by requiring men to have their talaq certified by an external authority and to serve it on the wife and two witnesses, and thereafter to institute an action for divorce against her. This is to address and prevent the current abuses that are taking place in relation to talaq. It does not take away the man’s right to repudiate.

The bill also recognises the right of a husband to delegate his right of talaq to his wife, which is lawful under Sharia. It does not give the woman the same right to repudiate her husband unless he delegates it to her.

The bill further recognises a woman’s Sharia right to be released from the marriage through khul’a.

The bill defines khul’a as being initiated by the wife and requires the husband’s consent subject to payment of financial compensation by the wife to her husband.

The bill moreover recognises faskh, which under Sharia is available to men and women.

This is a form of divorce that requires the aggrieved party to apply to a third party to be released from the marriage.

If the wife applies for faskh, she may have to pay financial compensation to her husband to be granted the divorce.

Presently, many women experience great difficulty in obtaining faskh when they apply to the ulama (scholars). Their right to divorce is denied even where they have grounds recognised by Sharia to exit the marriage.

The bill affords the parties the option to have their dispute mediated before the divorce is finalised in court.

Mediation is similar to arbitration, which is encouraged under Sharia. It allows the couple to choose a third party to facilitate a discussion between them about their marital dispute.

In many instances, women are left destitute after their husbands talaq them or they obtain faskh against them.

For this reason, the bill recommends that a wife’s Sharia rights to financial compensation be recognised.

This includes maintenance that the husband did not provide to the wife during marriage, maintenance during iddah (waiting period commencing divorce), compensation for a breast-feeding period of two years, compensation for services rendered in her husband’s or his family’s business where she was not remunerated and compensation for contributions to the maintenance or increase of her husband’s estate.

If a husband contributes to the maintenance and increase of his wife’s estate, he will also be compensated.

The bill implicitly proposes that a secular court should preside over any matter that arises from the bill. While this means that a non-Muslim could preside over the matter, parties will be able to present evidence by Sharia experts so that the court can be guided by that evidence.

It is clear that the bill aims to give effect to rights and obligations that exist under Sharia. It does not try to create rights or obligations that are not recognised under Sharia.

The Sharia rights and obligations outlined here are not currently implemented properly by our ulama, which results in women suffering grave hardships.

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  • Raheel Chaudhry
    Mar 15 2011 9:31PM
 
Nothing I have read in this article suggests any kind of wrong intentions by the creators of the bill. This bill is to insure women get what was supposed to have been given to them by the society anyway; protection of their civic and religious rights. Even the governance by a non-secular court makes sense considering the Islamic courts have failed women in this regard. Women may have been granted a different role in Islam by Allah but they are just as dear to Allah as men are.
 




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