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Sultana's Dream
August 2012

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Shar'iah Law and Divorce

'And live with them in kindness (your wives) or leave them in kindness.' Prophet Muhammad (PBUH).

As I sat watching the ABC program 'Divorce: Aussie Islamic Way' I was upset, even angered at the way the women seeking divorce at the  'Lakemba Judicial Council' were treated. 'Comedy of Errors' might have been a better title for the program,  because it seemed to me that the four Council members knew very little about the spirit of Shar'iah law concerning divorce.

Enlightened Islamic scholars state that wherever there is justice and mercy this is Allah's (ewt) Shar'iah, and wherever there is goodness and freedom, then this is Shar'iah.

Islamic injunctions have often been corrupted by deviations and innovations that have entered Islamic practices of which Islam is completely innocent; they may easily be refuted by evidence from the Qur'an and the Sunna (actions and sayings of Prophet Muhammad (PBUH)).

Mixing cultural beliefs and practices with Islamic teachings, and allowing these beliefs to take precedence, has also led to the distortion of some Islamic beliefs and rulings. Naturally, cultural beliefs and practices differ from one cultural interpretation to another (Muslims in Australia come from more than seventy different cultures).

There are some commentators who wrongly present Islam as a system which attempts to imprison women, condemns them to ignorance and tries to promote rulings more suitable to a pre-Islamic society: all in the form of 'authoritative' pronouncements.

The Qur'an clearly states that Eve was created not from a rib of Adam but from the same soul as Adam (Nafsen Wahida) and that both men and women are equal in the sight of God:

    'O Human kind, reverence your Guardian Lord who created you from a single soul and created of like nature: his mate and from them twain scattered (like seeds) countless men and women. Reverence your Lord, through Whom you demand your natural rights. And be heedful of the wombs that bore you, for God ever watches over you" (Qur'an 4:1).

Under Shar'iah Law a Muslim woman has the right to request and be granted a divorce on several grounds including physical, psychological or verbal cruelty. Also, if a husband and wife are incompatible, or the husband refuses to provide financial support, or leaves their home without his wife's consent for more than three months, the wife is entitled to proceed with divorce. Shar'iah law considers a husband's neglect to be a threat to the bond of marriage as it may lead the wife to 'fitnah' (seeking another sexual relationship).

In the ABC program, the Lakemba court refused to grant the woman with six children, abandoned by her husband for a long period of time, a divorce until he was found and acquiesced by signing his agreement. Divorce in such cases is definitely the wife's right. She does not have to be humiliated by imams who don't, in my opinion, seem to be fully qualified to pass such judgements.

The Qur'an gives an even stronger message: 'Turn not away (from your wife) altogether and so leaving her hanging and if you were to set things right (between you) and have piety, for verily Allah is Most forgiving and Most Merciful" (Qur'an 4:129). Leaving her hanging is exactly what the Lakemba Judicial Council did in this instance. Is this Shar'iah law? Definitely not.

'If you desire a wife instead of your wife and you have given one a treasure (qintar), do not take anything back" (Qur'an 4:20-21). But instead of applying these and other verses, the Lakemba Court insisted that the women return their husbands' money (mahr - bride gift) even when the mahr was promised on paper, but never actually given.

In March 2007 the Board of Egyptian Religious Scholars pronounced that verbal divorce was no longer acceptable. Divorce had to be in front of a qualified judge with both spouses in attendance. Watching the Lakemba Judicial Council in action made me question whether they were fully qualified Shar'iah judges.

Islam urges its followers to respect the law of the land and if the Australian courts grant a divorce on sound legal grounds, then it is a valid divorce.

By going to the proper sources, the Qur'an and the Sunna, Australian Muslim women can learn for themselves what their rights are. Insha' Allah.

Aziza Abdel-Halim

 'Divorce: Aussie Islamic Way' was shown on ABC 1, 21 June 2012.


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