Written evidence submitted by Basira
The origin of the word Sharia means that it is a path to water. For the early Muslim scholars, they understood it to be God’s vision for an ideal society that is built on justice and equity. Sharia, however, does not exist anywhere in a codified form. What is codified and practised is better referred to as Islamic Law, which is the attempt of the early male scholars to interpret what is the right path and what rules to apply in their societies to be able to reach that ideal state of equity and justice and to regulate the Muslim communities.
It is the interpretations of the forefathers that are understood to be Sharia today and they are varied and many. Within the Sunni sect alone, there developed four main schools of law and jurisprudence (the Hanafi, the Maliki, the Shafi’i, and the Hanbali), whilst there were others among the Shia sect and more, such as the Zahiri school, that was neither Sunni nor Shia. Altogether, it is estimated that there were more than twelve different schools of thought.
Therefore, these laws are human interpretations that are open to debate, studies and updates depending on the times and are not universal. There have been updates to accommodate certain modern developments. For example, this has happened recently when relating to genetically modified food, organ transplants, IVF, womb-renting, cloning, euthanasia, transgender operations, praying in zero gravity in outer space, etc.
However, there seems to be a popular misconception that the laws are timeless and are sacred decrees, even though there are clear differences and the laws are in fact implemented in different ways depending on location and geography. Even just within the four schools of law within the Sunni sect there are lots of variations.
Islamic law is based on four main sources: the Quran (this was written twenty-three years after the Prophet’s death during the time of the fourth Caliph Othman), the Sunnah (compiled 300 years after the Prophet’s death and considered the sum collection that details the behaviour and the sayings of the Prophet Mohammed, who was a mere moral and not himself divine), Ijma’ or consensus (these are material rulings made by scholars through debate and agreement when they were unable to find specific provisions within the Quran and the Sunnah) and Qiyas (laws made by judges using analogy, reasoning or looking at legal precedents to decide on new case law).
What is important to note is that Sharia was transformed into Islamic law by fallible judges and scholars. One can see that there were many vigorous jurisprudential steps and requirements to define, decide and establish the laws. Our concern here is to argue that as we are based in the United Kingdom and living in the twenty-first century, that any laws or rulings made within Sharia councils would be difficult - if not impossible – to be made compatible with British law and the universality of human rights. In particular, this is true when it comes to the rights of British Muslim women.
Sharia on Marriage
Marriage is a legal contract in Islam that is understood to mean that the man pays the dowry in return for legal sex. There are ways in which the contract can incorporate additional conditions or responsibilities that can work to the advantage of either the male or the female. However, in practice, many women do not even know that they can put conditions in their marriage contract to stipulate differently from what the general rules dictate.
There is the very big issue of the need for a male guardian or wali to give away the bride in marriage. In cases where the father is dead or unable to be present, then she will usually have another male guardian, depending on the next closest blood relation, for example, a brother. It is also not permissible for a woman to take another woman as her guardian. Still, the schools of thought all differ in the details of the role of the male wali.
Especially, for example, in the case of a bride who is not a virgin and who maybe a divorced woman or a widow, she might be able to marry herself. In some other cases, also, there is no need for the guardian to give her away. What is required however is the presence of two male witnesses to validate the public marriage contract.
One arguable point here is that in practice within certain Muslim communities, the male guardian can assert full authority over a girl and take the liberty of controlling her and interfering in her life throughout her existence. He can be deciding on her dress code, giving her away in marriage without her consent or even giving her away in marriage at a young age, since there is no minimum age in Islamic law for marriage. It is difficult to establish whether this is due to tradition or religion but these circumstances cannot be tolerated.
There are generally two big conditions for the Muslim marriage to be valid. In the majority of cases, there is the need for the presence of witnesses, usually taken to mean two trustworthy Muslim men or one man and two women according to some schools. In this alone, we find it to be clear discrimination.
Secondly, there is the condition that the groom needs to pay a dowry in cash, jewellery, property or other valuable asset. Although this is meant to be given to the bride and offer her financial security within and after the marriage, in some cases the father takes the upfront dowry. Furthermore, where there is a stipulation for a belated dowry in the case of divorce, its value is of no financial security when inflation is taken into account and there is a considerable passage of time.
There are also other types of marriages within Islam where the woman can lose even more rights as a wife and later on if she becomes pregnant. These can be found in both the Sunni strands and within the Shia groups. For example, there is the fixed-term or temporary marriage known as zawaj al-mut’a permitted by the Twelver branch of Shia Islam and there is the nikah misyar which is within the Sunni sect. This latter usually amounts to the wife waiving her right to sustenance from her husband, whilst he can deny any lineage to an unborn child if she gets pregnant.
Sharia on Divorce
When a marriage is in danger, couples are usually advised to pursue all other possible remedies and routes to rebuild the relationship, including mediation to be conducted by their respective families. Divorce is to be allowed as a last option.
In most cases, however, the husband can terminate the marriage merely by uttering the divorce word verbally, thus holding the sovereign right to divorce his wife in a way that she cannot divorce him. Yes, there are exceptions where the woman has already stipulated in her marriage contract for the right to divorce herself, but these are rare cases where she is said to hold the isma.
In any Islamic marriage, the woman can apply for divorce from a court; but, again, she is likely to forfeit any stipulated late dowry, lose custody of her children as well as the right to alimony. Such a divorce route can also take a lengthy minimum of three to four years because the judges will do their best to deter her and keep encouraging her to reconcile with her husband.
There is also the practice of khula, where a woman can free herself a bit faster and quicker. This was a practice allowed even during the time of the Prophet, when she can be divorced within six months but has to give up all her financial rights including her upfront dowry and in some case, the husband can himself demand a large sum of money in return for giving her a divorce.
There is also the odd situation when a husband says that he divorces his wife three times, but then he wishes to have her back and wants her to return. According to a verse in the Quran, she has to be with another husband, who might accept to divorce her, before the first husband can take her back. But in both cases she has to wait for four months to make sure she is not pregnant.
The verse says: “So if he divorces her she shall not be lawful to him afterward until she marries another husband; then if he divorces her there is no blame on them both if they return to each other (by marriage).” It is interesting to note that such a case was decided upon exactly in this way in a Sharia council held in Britain.
Sharia on Custody
This is a complex issue and rulings differ depending on which different sect you look at and also within the different schools of Islamic law. It is generally agreed that the mother has the right of custody of her child until it is two years old and that the husband can even have to pay her to breastfeed the infant. However, the mother’s custody terminates when the children reach maturity age, which for boys is when they reach seven years old and for the girls when they menstruate. The father has the right to make this decision whether the children can stay with her or not.
During the time of the mother having custody, in most cases, the ex-husband is obliged to pay for the children’s upkeep and that is determined according to his financial situation. But she can also easily lose her rights to custody if she remarries or if she moves to live in another country.
Sharia on Property and Inheritance
The general rule is that when it comes to inheritance, the daughter’s share of anything equals half that given to the son. Where there are no sons, the deceased’s brothers and sisters have a share of the estate, whilst the wife in any case is only guaranteed an eighth and the mother guaranteed only a sixth.
Sharia on Marital Rape
Marital rape is not an acknowledged concept because the man in marriage has the right to have sex with his wife at any time he pleases whether or not she consents. Sheiks and imams tend to refuse such a prosecution because they believe allowing sex is part and parcel of marriage.
Sharia on Polygamy
Islam allows a man to marry up to four wives at a time with the stipulation that he be fair and treat them all equally, even though this is an impossible task and the lived reality is far from the ideal. According to some statistics, there has actually been a rise in ‘secret polygamy’ in the UK.
We think that the main reason for this is because Islam doesn’t allow sex before marriage, so for a woman to fulfil her sexual desire without fear from God, she may well accept being a second, third or fourth wife. This is done clearly against British law and the marriages are facilitated by a mosque or an imam here or abroad and ignoring the need for civil registration or recognition.
Muslim women also can accept the mut’a or the misyar marriage as explained above. With any one of these forms of marital relations, they are conducted in secret and the man will have little or no legal obligations towards the woman because there was no marriage under civil UK law. Any resulting divorce also doesn’t need any authority’s approval, only the verbal announcement of divorce by the male.
In 2015, Amra Bone, who is the UK's first female Sharia council judge, said: "The government cannot… ask Muslims not to have more than one wife. People have a right to decide for themselves" implying that British Muslims are therefore free to operate within a parallel legal system.
Summary of Our Views
Our view is that if the British government allows Sharia councils to rule and operate within Muslim communities, then they are giving them the green light to apply clear gender discrimination that works invariably and heavily against women. They will further take this as an opportunity to apply laws under the guise of religious justification, even as we know that Sharia is not as divine as it is claimed to be. Such a decision would only undermine the basic human rights due to women and create a parallel justice system whose basic principles and practices conflict with the law of the land.
In a recent meeting held at the House of Lords that was chaired by Baroness Uddin, from our notes that were sent to all attendees, Aina Khan, from Duncan Lewis Solicitors, said the following: “As Muslim solicitors in the UK, there is a need to address the growing demand by Muslims inquiring about Islamic divorce. There’s a need for Islamic solutions that are Sharia compliant but also work under English law. Judges in Western countries are not sufficiently familiar with Islamic law to render fair judgments in matters of divorce which complicates situations and does not always end up protecting the clear rights of Muslim women under Islamic law.”
Our argument is, if the Islamic rules on marriage and divorce are so different from one Islamic country to another or that they are based on varying schools of jurisprudence or that they have to take into account the Shia and Sunni divide, which rules will Sharia councils employ in the UK? Which sect will they follow? Would the government allow each council to apply its own laws and interpretations? How transparent can they be? And to whom will they be accountable?
More importantly, we believe that if we allow Sharia councils to take charge of Muslim women’s cases, it will not only lead to a parallel legal system in Britain but it will take away many of the hard fought for rights that are available to women through the general UK family status laws. This in turn would cause an inequality between citizens.
Finally, we think the British government can benefit from the Canadian experience and learn how they managed to put an end to Sharia councils back in 2005.