Muslim Family Law Research Articles

Muslim Family Law in Southern Thailand: A Historical Overview

Muslims have long a history of practicing Islamic law where Muslim communities are the minority. In Thailand, past governments have positively included Islamic law as a legitimate source of personal law for Muslims in the southern regions. Consequently, Muslims are governed by two different sets of laws in Thailand, one is Islamic law and the other is the secular law. However, only Islamic law is applicable for Muslims especially in settling their matrimonial disputes and inheritance. Islamic family law has a long history and has been preserved for the betterment and benefits of Muslim citizens especially in the four Muslim provinces of Thailand. This study aims to describe the development of Islamic law through the different periods of governments in southern Thailand. The development of Islamic family law and the application of Islamic law along with its judicial aspects under the administration of Thailand will also be discusssed.

Inscribing Islamic Shari‘a in Egyptian Divorce Law

As with other family law regimes, Muslim family law in Egypt plays an important role in shaping gender norms. In this article, I discuss adjudication by family courts during the period 2008-2013. I argue that the most important developments in this regard are: (1) standardisation of the way in which court rulings are written down, which contributed to a normalisation of the male-dominated nuclear family; and (2) the significant inclusion of Islamic sources in court rulings. A central question in this regard is how judges without a background in classical Islamic jurisprudence have applied the modern legal codes derived from shari‘a. I argue that a move towards greater standardisation of practice has taken place through a closer union between law and religious morality, with Quranic verses and the Sunna being used by judges in creative ways. Thus, shari‘a is continuously reinscribed in state law and its meaning construed in ways which differ from classical Islamic jurisprudence (fiqh). I also highlight the importance of key contextual factors, such as judicial training, time pressure, and the influence of computer technology, behind these developments.

From the Liberation of Women to the Liberation of Men? A Century of Family Law Reform in Egypt

To what extent have notions of manhood and womanhood as incorporated in Egyptian Muslim family law changed over the course of almost a century of family law reforms, and why? In answering this question, I draw on the works of two Egyptian intellectuals, Qasim Amin and Azza Heikal, because they discussed ideas about manhood and womanhood in relation to Islamic religion and authoritarian rule. My analysis shows that there is a dire need within studies on gender in the Middle East to assess the effectiveness of family law reform on both women’s and men’s agency. After all, when an authoritarian government introduces legislation that enhances women’s legal rights with regard to the family but does not reform men’s legal rights inside that same family, it is not surprising that when political oppression ends, disenfranchised men will try to abolish the laws that expanded their wives’ freedom and curtailed theirs.

Talaq (Divorce) Procedure in the Provisions of Muslim Family and Inheritance Law of Patani Province, Southern Thailand

Talaq (Divorce) Procedure in the Provisions of Muslim Family and Inheritance Law of Patani Province, Southern Thailand

Modernizing Marriage: Family, Ideology, and Law in Nineteenth and Twentieth-Century Egypt by Kenneth M. Cuno

<i>Modernizing Marriage: Family, Ideology, and Law in Nineteenth and Twentieth-Century Egypt</i> by Kenneth M. Cuno

THROUGH THE WOMEN’S BODY: STAGING REBELLION IN THE PLAY PURDAH BY ISMAIL

This article examines the play Purdah (1993) by the playwright Ismail Mahomed, a Pakistani writer and director born in Johannesburg (29 May 1959) who has been active on the theatre scene in South Africa for the last thirty years. Purdah1 is a one-woman stage performance that addresses the issue of seclusion and subjugation of the Muslim Indian women of Lenasia, the neighbourhood of Johannesburg, which during the apartheid regime was constructed as a ghetto for the Indian community. I argue that the play, narrating the story of Ayesha, a young girl subjected to the customary practices of her community and Muslim family laws, is an instance of ‘issue theatre’ that creates a venue for discussing the seclusion of women in purdah not just as a curtailing of freedom and a breach of human rights, but also as a psychological form of ‘colonisation of the mind’ that impinges on the development of woman’s psyche and impedes the act of ‘creation’, in the double meaning of artistic ‘creativity’ (poiesis) and ‘fabrication’ of subjectivity.

Judicial Separation at the Wife’s Initiative: A Study of Redemption (Khul‘)in Islamic Law and Contemporary Legislation in Pakistan and Malaysia

Under Islamic Law it is the general perception that the right of Divorce belongs only to the husband. This concept has been administered in Islamic countries due to the opinion that there is no such kind of right for a woman to get divorced from her spouse. Muslim women living in British India before the independence of Pakistan had no legal right to divorce. When Pakistan became an independent state in 1947, it retained the law. For a woman who suffers and has an unhappy life, the Dissolution of Muslim Marriages Act 1939 (DMMA) was initiated where by the law of Redemption (khul‘) was introduced in section 2(ix) of Dissolution of Marriage (fasakh-e-nikah). This enactment created confusion over whether Redemption (khul‘) is Dissolution of Marriage (fasakh-e-nikah) or Divorce (talaq), that is, whether the court can grant Redemption (khul‘) to a married woman without the consent of her husband. While in Malaysia the law of Redemption is administered under section 49 of the Islamic Family Law (Federal Territories) 1984, Dissolution of Marriage (fasakh-e-nikah) is put in a separate section, section 52 of the Islamic Family Law (Federal territories)1984. This paper discusses the Islamic perspective of Redemption (khul‘) and the relevance of the Malaysian enactment for Muslim Family Law in Pakistan is recommended, where separate sections for Dissolution of Marriages and Redemption (khul‘) should be demarcated.

Islamic Law and Paradox of Domination and Resistance

Judicial divorce symbolises women’s resistance to the domination of local interpretations and practices of Muslim family law in Lombok, such as male arbitrary repudiation and polygamy. In this pattern, husbands hold the privilege to terminate marital unions unilaterally and remarry without their wives’ consent. These practices find their grounds in classical-medieval Islamic jurisprudence (fiqh), which is endorsed by the custom of patriarchal society. It is by turning to the court that women attempt to subvert such hegemonic discourses. By examining divorce cases from the religious courts, and looking at their broader socio-religious and cultural contexts, this study attempts to propose an analysis of judicial divorce as a locus of women’s resistance against male domination endorsed by local practices of Islamic law, customary law and state law, and examines an important dimension of contemporary practice of Islamic family law, which reveals patterns of domination and resistance.

Right of Muslim Women in Thailand under the Muslim Family Law of Inheritance Code, 1941

There are some criticisms made by non-Muslim writers on the rights of Muslim women under the Muslim Family Law and Law of Inheritance Code, 1941 (MFLALIC, 1941) which is currently applicable in the Muslim majority areas of the four southern border provinces of Thailand namely, Patani, Narathiwat, Yala and Satul. To rebut the criticism, this study aims at analyzing and examining the provisions of the MFLALIC, 1941 and case law in relation to the rights of Muslim women after divorce and its procedures by referring to cases decided in the Provincial courts (PCs) and Muslim Religious Committee Councils (MRCCs) in those four provinces. Finally, the article discusses some propositions for future reform in order to make it in accordance with the Islamic law.

MUSLIM FAMILY LAW REFORM IN INDONESIA A Progressive Interpretation of The Qur’an

If we look at Muslim Family laws in different countries or communities, we can see how different they are from one another and how more or less option-giving they are for women. There is obviously no such thing as the Sharia as a God given law, eternal and a-historical. The fact is there are many different Muslim Family laws and they are really man-made. One of the subtle but most pervasive areas of discrimination against women in the Muslim world today is the inequality that occurs within the context of the family. Throughout Muslim countries, Muslim women are speaking out about such discrimination and are fighting for reform of family laws to promote justice and equality within the family. This Article outlines key discriminatory provisions within Muslim Family Law in Indonesia which is called The Compilation of Islamic Law (1991) and the efforts being made by progress Indonesian Muslim to advocate for comprehensive reform of the Compilation. This effort includes developing an understanding of why and how reform of Muslim family laws is possible using the principle of justice and equality in Islamic perspective. The last part of this article will introduce a new draft of The Compilation of Islamic Law which is called the Counter Legal Draft of The Compilation of Islamic Law (The CLD) in 2004, that is based on the principle that the Quranic ideal for the Muslim family is founded on the fundamental Islamic values of human equality and freedom. The CLD is constructed on the premise that the realization of the Quranic vision of the family can be achieved only if the values of equality and freedom are reflected in all aspects of the regulation of marriage and family.

A Revolution in Muslim Family Law? Egypt’s Pre- and Post-Revolutionary Period (2011-2013) Compared

In the weeks following the Egyptian revolution of 2011, a group of divorced fathersrose to demand a “revolution in family law.” Portraying extant family law provisions assymbolic of the old regime and as deviating from the principles of shariʿa, their call was givenprominent media attention and, in the ensuing transitional period (2011 to 2013), women’srights and family law emerged as contentious areas in Egypt.By comparing public debates on family law reform in the decade preceding the 2011revolution to the two years following it, we argue that Egypt’s “revolution in family law”actually started a decade earlier, in 2000, when Egyptian women’s new right to divorceunilaterally rocked the country.1 This set in motion other legal reforms that challengedfundamental aspects of male authority in the family and slowly led to the emergence ofinnovative conceptions of motherhood and fatherhood.

Stylistic Analysis of the ‘Muslim Family Laws Ordinance 1961’

Stylistics is the scientific study and interpretation of the texts in relation to their linguistic and tonal styles. It analyzes the texts through different stylistic features/levels i.e. graph logical, semantic and syntactic. These features/levels distinguish a standard writing from the substandard one. In this paper The Muslim Family Laws Ordinance 1961 of the Islamic Republic of Pakistan has stylistically been analyzed on different linguistic, textual and contextual levels. The thorough and careful analysis of the said ordinance shows that it has been formed and composed of according to the nature of the legal and constitutional writings. In it, numerical recurrence has been used for the numbering of various sections and subsections. The analysis also shows that different stylistic techniques such as font style, paragraph formation, logical connection between different words and sentences, section wise division etc. have also been employed in the composition and the formation process of the said ordinance. This is going to be the first attempt in its nature as no work has been done before. It can be very helpful for the practitioners of law in their legal practice and the Muslim community to understand its matrimonial rights. It can also prove helpful for the researchers of linguistics in general and of stylistics in particular in proper understanding of the legal compositions.

Eklektisisme dalam Taqnîn Hukum Keluarga di Dunia Islam

The Qur’ân was revealed with justice and equality for human beings regardless of their sex, race, social class and ethnicity, as cardinal principles and intrinsic values in Islamic sharî‘a. If this is the case, modern Muslim society with Islamic law is necessarily of equality and justice. However, their family laws which are grounded on assumptions of past centuries and have little bearing on contemporary realities have not reflected gender relations. Inequality that occurs within the context of Muslim family laws is one of the subtle but most pervasive areas of discrimination against women. It has resulted in a different set of dynamics that help create new demands in favor of change of laws. This study explores the reform strategy through legal mobilization in the Muslim family laws around the world. The findings of the study reveal that the substantive and pluralistic legal mobilization is important to Muslims, and the reinterpretation and renewal of laws have been mobilizing debates among both proponents and opponents, framed by orientations to the modernists who advocate reinterpretation of the original sources and the traditionalists who insist on literal adherence to the received doctrinal corpus.

Reorganization of the Sharia Courts of Egypt: How Legal Modernization Set Back Women's Rights in the Nineteenth Century

Historians have neglected the reorganization of the Sharia courts in nineteenth-century Egypt, a process that paralleled the reorganization of the Ottoman imperial Sharia court system, and which coincided with the introduction of secular law codes that reduced the jurisdiction of the Sharia courts mainly to family law. New regulations introduced a hierarchical court structure, detailed the qualifications of personnel and the manner of their appointment, set fees, and defined legal procedures. Judges were restricted to Hanafi jurisprudence, insuring greater uniformity in their rulings, and an emphasis on the production of and reliance upon legal documents all but required Ottomans and Egyptians to bring their affairs—especially their family affairs—to the Sharia courts. These regulations affected the substance of Muslim family law as applied, even though it was not codified until the twentieth century. Hanafi law put married women at a disadvantage when seeking to collect arrears of maintenance or to dissolve their marriage due to non-support, desertion, or a husband gone missing. The Ottomans mitigated these disadvantages by allowing the application of Shafi‘i and Maliki law, which offered relief to women in these situations. However, in Egypt this was not done until the 1920s.

OSMANLI HUKÛK-I ÂİLE KARARNÂMESİ (1917)

Osmanli-Islam aile hukukunun ilk kanunlastirilmis metni 1917 tarihli Hukuk-i Âile Kararnâmesi (HAK)'dir. Muslumanlarin aile hukuklarinin yaninda, Yahudi ve Hiristiyan aile ahkâmini da ihtiva etmektedir. Kisa bir sure yururlukte kalmasina ragmen bircok devletin aile hukukunun kanunlastirilmasina onculuk etmistir. Ayni zamanda getirdigi duzenlemeler, basta gayrimuslim cemaatler olmak uzere ulemanin bir kismi ozellikle de Sadreddin Efendi tarafindan ozellikle de fikhi yonden buyuk elestiriye maruz kalmistir. Bu calismada 1917 tarihli Hukuk-i Âile Kararnâmesi (HAK)’nin tanitimiyla Sadreddin Efendi’nin kararnâmeye yonelttigi tenkitlerin de ele alinmasi amaclanmistir.

Clash of Shari’ā with National Law

This paper undertakes a praxiological study (practice based approach) of Muslim “religious tribunals”, Shari’ā Councils and Muslim Arbitration Tribunals (MATs) not part of the UK law. Some Western scholars maintain that traditional shari’ā law is discriminatory on issues of gender equality, in particular, with reference to Muslim family law. It is important to examine the shift from the “true narratives” of the Qur’ānic Model (QM) to the “living practice”; co-construction of “true narratives” with the QM.This paper argues that discrimination can be eliminated through the QM by adopting the interpretive/hermeneutical approach. Praxiological/practice based approach (PBA) in this study has identified that discrimination does exist in the “living practice” of traditional shari’ā law.This study treats the Qur’ān-Sunnā as complementary sources to each other because this has important implications with reference to “wife beating” verse in the Qur’ān (Q.4:34). PBA enabled to identify the specifics of discrimination that occur. Thesecular-religious debate has been politically influenced, for example, inequality issue for women seeking advice from RTs. BaronessCox has introduced the Arbitration and Mediation (Equality) Services Bill (HL) 2014-15 that went through its first reading on 11 June 2014. The Bill addresses gender discrimination within Muslim religious tribunals and the parallel legal system.

Gender and Equality in Muslim Family Law, Justice, and Ethics in the Islamic Legal Tradition

In the aftermath of the Arab Spring, some advocated a turn toward “tradition,”thereby raising fears that women would be pushed out of the public arena despitetheir active participation and would even lose those gains made underprevious governments. The debates around gender parity vs. complementaritythat were stirred up were not new, but they did manage to acquire new cogencyin the context of the emotionally charged deconstruction of the old politicalsystem and the subsequent transition to new governments.The arguments made by both sides were often couched within a frameworkof liberal human rights or in terms of Islamic tradition. Gender andEquality in Muslim Family Law is a valuable contribution to the discussionon the apparent contradiction between these discourses and a learned attemptto bridge them. The editors of this collective book, which stems from a numberof workshops organized by the Oslo Coalition on Freedom of Religion or Belief,explore how gender equality, as shaped by contemporary ideas of humanrights, can be reconciled with the Islamic legal tradition, which is rooted inpre-modern conceptions of justice.In the first chapter, Mir-Hosseini examines the classical fiqhī understandingof gender justice by focusing on qiwāmah (guardianship of women), whichis enshrined in most Muslim family codes, and overviews twentieth-centuryreforms and codifications. She also discusses the ideas of al-Tahir al-Haddad(d. 1935) and Fazlur Rahman (d. 1988), two reformists who influenced subsequentdiscourses on equality in the family within an Islamic framework.Her contribution ends with a looks at the emergence of political Islam, transnationalfeminism, and non-governmental organizations (NGOs), all of whichadd a new dimension to preexisting debates.The rest of the book is divided into two sections. The first explores someconcrete efforts at legal reform and social activism that reconcile Islam andhuman rights. Mulki al-Sharmani delves into the concept of qiwāmah inEgyptian law and in courtroom practice, pointing out the legal strategiespursued by litigants and the disconnect between the model of marriage upheldby family codes and the actual practice of marriage. Marwa Sharafedinanalyzes Egyptian women’s rights NGOs and their discourse on personalstatus law that blend, to varying degrees, religious and human rights frames ...

The Qurranic Model (QM): A Praxiological Study of Religious Tribunals in the United Kingdom (UK)

This paper undertakes a praxiological study (practice based approach) of Muslim ‘religious tribunals,’ Shari’ā Councils and Muslim Arbitration Tribunals (MATs) not part of the UK law. Some Western scholars maintain that traditional shari’ā law is discriminatory on issues of gender equality, in particular, with reference to Muslim family law. It is important to examine the shift from the ‘true narratives’ of the Qur’ānic Model (QM) to the ‘living practice;’ co-construction of ‘true narratives’ with the QM. It is my contention that discrimination can be eliminated through the QM by adopting the interpretive/hermeneutical approach. Praxiological/Practice Based Approach (PBA) has identified that discrimination does exist in the ‘living practice’ of traditional shari’ā law. I treat the Qur’ān-Sunnah as complementary sources to each other because this has important implications with reference to ‘wife beating’ verse in the Qur’an (Q.4:34). Religious tribunals (RTs) have restricted access for research purposes and solving my problem is a challenge and PBA was the only way to obtain an ‘insider’s view.’ PBA uses practitioner case excerpts and this gives insight into the specifics of non-compliance, emergence of pluralism within Islam and legal practice of shari’ā law and factors such as the judges’ beliefs and values are examined. PBA further enabled me to investigate the specifics of discrimination or inequalities that occur. The Qur’ānic Model has a potential to engender a more egalitarian (gender neutral) Islamic legal theory. Any Islamic legal theory must recognise that, the Qur’an does not provide a systematic, historical and comprehensive system of universal ethics that can be simply retrieved or discovered.The secular-religious debate has been politically influenced, for example, inequality issue for women seeking advice from RTs. Baroness Cox has sponsored the Arbitration and Mediation (Equality) Services Bill that has gone through its first reading on 14 May 2013. It is important to understand different cultures and different ‘versions of Islam’ emerging in policy formulation on a national and international level in the 21st Century.

Islam and Gender in the Thought of a Critical-Progressive Muslim Scholar-Activist: Ziba Mir-Hosseini

This article highlights the scholarly contribution of the Iranian-born Muslim scholar-activist Ziba Mir-Hosseini to the academic field of gender and Islam. In the first part, Mir-Hosseini's thought is positioned within the larger processes of the shifting loci of authority and normativity in contemporary Islamic discourses, particularly with reference to the emergence of what will here be termed critical-progressive Muslim scholar-activists. There follows a brief justification as to why a study of Mir-Hosseini's thought in relation to gender and Islam warrants examination. Mir-Hosseini's personal journey in the field of gender and Islam is then outlined and her major contributions to the field are noted. This is followed by a discussion of the support Mir-Hosseini finds for her ideas in the hermeneutical theories employed by reformist male Muslim scholars, and then an examination of her views on the relationship between Islamic feminism discourses and (neo-)traditional expressions of Islam. Mir-Hosseini's deconstruction of the assumptions governing classical Muslim family law and ethics that have been re-appropriated and legally enforced by some contemporary Muslim majority nation states is presented next, followed by a discussion of her proposals for the reform of Muslim family law and ethics. The final section discusses Mir Hosseini's activism with special reference to her involvement with Musawah, the global movement for equality in Muslim family law based in Kuala Lumpur, Malaysia.

Reinventing the Islamic Law of Inheritance: The Share of Orphaned Grandchild in Islam and Pakistani Legal System

The issue of the share of grandchild in section 4 of the Muslim Family Law Ordinance 1961 in Pakistan has sparked the hottest debate in the law of inheritance. This work discusses this controversial issue to find out, first, the background of this thorny issue; secondly, to evaluate the arguments of the supporters and opponents of representational succession; thirdly, to check the Islamicity of section 4; fourthly, to analysis how is this section interpreted by the higher Courts in Pakistan; finally, this work looks at the possible alternative to section 4 or representation for the grandchildren. The vast majority of scholars consider it as a re-writing of the Islamic law of inheritance; that its interpretation by the superior courts in Pakistan amounts to its non-existence; that experts of this field prefer ‘obligatory bequest’ over representational succession to provide help to the orphaned grandchildren.