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Interpreting Women's Right of Divorce in Present day Islamic Family Laws: Trans-national and cross-cultural developments in the Law of Divorce in Europe and the Muslim World

Focus of this research workshop will be on exploring how equality in the Muslim men and women right of divorce is interpreted and within which judicial and theoretical framework. It will analyze the difference between legislation and judicial processes. The workshop should discuss (1) recent legislation, (2) case laws, and (3) fatawa literature on women's right of divorce. (4) Interpretations, and (5) Practice.

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Time and venue

December 8: 9:30-16:00
CSS, Øster Farimagsgade 5
DK-1353 Copenhagen
Room 18.1.08 (see map)

December 9: 8:45-15:30
Bispetorvet 1-3
DK-1167 Copenhagen
Room Bisp 213

Participation and registration
Please contact Rubya Mehdi for participation

Participants with presentation of papers

• Mulki Al-Sharmani, the American University in Cairo
• Ane Skov Birk, University of Copenhagen
• Amira El Azhary Sonbol, Georgetown University, Qatar
• Susanne Dahlgren, University of Helsinki, Finland
• Nadia Sonneveld, Universiteit Leiden, the Netherlands
• Khalid Saeed Bahauddin Zakariya University, Multan, Pakistan
• Anika Liversage, The Danish National Centre for Social Research , Copenhagen
• Corinne Fortier, Collège de France, Paris, France
• Livia Holden, Lahore University of Management Sciences, Lahore, Pakistan
• Annette Kronborg, University of Copenhagen, and Idamarie Leth Svendsen, Metropolitan University College, Copenhagen

Subject description of the research-workshop

Divorce is among the most important issues for Muslim women living in the West and in Muslim countries. The marriage institution and specially divorce is complex as social, legal and judicial concept. Divorce came to be accepted in many European societies only in twentieth century. As a consequent a number of prejudices about divorce still survive also in the Western countries.

Traditional shariah version provides non-equal rights of divorce for Muslim women and that creates many problems for them in the modern time. The Muslim family law and law of divorce have been developing through out history. In the history of its development the last period which proved to be decisive is the period when Islamic law came under the colonial influence.

In the example of Indian subcontinent during the British period the nature of Islamic law was changed from a flexible system to a system in the chains of common law. But at the same time reforms were introduced in the laws of divorce (Dissolution of Muslim Marriage Act 1939) which provided more grounds of divorce for Muslim women. Muslim jurist were open to the legal change and the reform was in fact initiated by the Hanafi Ulema in India who suggested borrowing from the Maliki laws as Hanafi law recognised judicial divorce in a limited number of situations. This has been the law until now in India, Pakistan and Bangladesh.

In the post colonial period two type of reactions could be noted, one reaction is in the form of extreme Islamization and the other reaction in the form of progressive reforms in the Muslim family laws and divorce laws. The example of extreme or fundamentalist reaction is the enactment of the gross punishment in criminal laws in Iran, Pakistan and Sudan etc, while an example of reforms is the family laws in Marocco, Pakistan and many other Muslim countries. The development in Muslim family laws shows that Islamic law is open for change to meet the new challenges therefore it is expected that it should also be open to the changing gender relationship with regard to equal right of divorce as well.

Comparative of man's and Women's right of divorce
Although classical shariah has been reformed in Muslim countries but a woman's right to divorce is still limited in comparison to the man's. If women's right of divorce is compared to man's right, derived from the shariah law, this becomes clear that the man's right is interpreted as absolute, which empowers him to divorce a woman unilaterally and extra judicially, whenever he wants, simply by verbalizing the Arabic word talaq thrice (the word means release, set free or let go). He needs not mention any grounds.

However Islamic law has prescribed various procedure for a man to divorce his wife, some are more recommended than the others, from which he has to make choice of one. On the other hand if we compare this to a woman's right of divorce it is very apparent that there is different scenario for a Muslim woman. Though Muslim women have various rights to divorce, but generally speaking these are obtainable only through court procedures. Therefore a question before a woman is how to get it? What grounds to provide? In case grounds are not sound enough in the eyes of a Muslim judge she should provide "consideration" to her husband, known as Khul.

Khul
Khul is an agreement to allow the dissolution of a marriage if the wife seeks it by paying an amount of money in compensation or as consideration to her husband. This payment is usually effected by the wife foregoing her right of mahr, while otherwise she has an absolute right to claim her unpaid mahr (Ahmed.K.N 1984; Fyzee 1936). Moreover, this right is not equal to the man's right of talaq. The difference between the two is that man can divorce at his own initiative without stating his grounds while khul is given at the instance of the wife only when she has an invincible aversion to her husband. Moreover, in talaq the husband becomes liable for the immediate payment of the wife's dower, whereas in khul it is the wife who makes a payment to the husband to induce him to release her from the marriage tie and the consideration may consist of the mahr itself.

Muslim jurists are divided on whether Khul' requires husband's consent. The Court procedure also does not allow the right of divorce to women but retains to itself against the traditional view that is divided on whether a judge pronounces divorce on husband's behalf, or in its own right or on behalf of community and state. However if at all there is another way she can come closer to have equal right of divorce, this she can do through talaq-e-tafweez. In talaq-e-tafweez a Muslim man at the time of making a marriage contract, delegates the equal right of divorce to his wife. However it should be underlined that this doctrine means that the husband delegates his right of divorce to the wife. It is not an equal right of divorce. This is one of such other rights where a woman can initiates for divorce out of the court. Other examples of such rights are Khiyar ‘ayb, khiyar bulugh.

To make this delegated talaq more popular marriage contracts form are also designed in the Western and Muslim countries laying emphasis for women to make the choice and in some cases make it compulsory for women. However in the practice of this right, traditions and custom play a big role though traditionally it is considered a bad omen to talk about divorce at the time of marriage. This is the only form of divorce under both classical and modern Islamic law where a woman stands almost on an equal footing with the man (Fyzee, 1936; Khambata, 1934; Pearl, 1981).

However, there has been little or no discussion on the question that Muslim women have in fact equal right to divorce in accordance with the Quran and sunnah. This discussion is going on in the Muslim modernist circles and we need to take up this issue among the interdisciplinary scholars in the West. In this regard it is important to engage the experts on Muslim family laws from the Muslim countries. The purpose of the International conference would be to research the problems around divorce law faced by Muslim women in the West and what are various solutions to these problems.

Issue of Divorce in context of Muslim women living in the West

The issue of divorce for Muslim women living in the West is very crucial. The problem can be described with different perspectives. The well known problem for the Muslim women in Europe concerning divorce is that when the a Muslim woman gets divorce through the civil law she remains under the pressure from the Muslim community to get a Muslim divorce to legitimise the civil divorce. And when that is not forthcoming she is still considered married to the man and in case she wants to remarry that is not approved in the community considering her status as a married woman. However according to the new development a compulsory talaq-i-tafwid is talked about where it is entered in the marriage contract as a right of a woman and man has in the marriage contract. How the Norway has struggled for this right for Muslim women is very appreciating. All the discourse and argumentation for this right for women should be seen in depth it provides a whole process of development.

The proposed workshop would greatly help in enhancing a broader perspective of discussion towards an equal right to divorce for Muslim women living in the West.

The customary sphere

It should however be underlined that beside modern legislation the role of custom should not be neglected (Hakim, 1993; Canaan, 1931). Women are often not able to avail themselves of the reforms just referred to because of the regulation of marriage through customary laws.
These reforms may not be always put into practice because of the strong hold of custom, limited knowledge of the law, and non availability of resources (Mir Hosseini, 1996). According to the customary laws women are not often divorced and the idea of a woman initiating divorce does not exist. In Sindh and Punjab if a woman has a strained relationship with her husband she leaves his house and goes to live with her parent. Everybody in the village will be aware of the fact that she has gone to live with her parents because of tension rather than merely for a usual visit. The issue is talked about between the families and the whole village may involve in mediating between husband and wife (Mehdi, 2001).

When Muslims migrate to the Nordic countries they bring with them a mixture of classical shariah, the state family laws of their countries, and customs and traditions. The state laws are applied side by side with the customary laws in their own countries. There is extensive and elaborate customary ordering of social life which constrains at every point the application of shariah and sometimes even contradicts it. In particular custom frequently forbids women to initiate divorce while this is allowed in shariah law. Immigrant Muslims usually have a limited knowledge of Muslim laws and women are usually not aware of their rights under Islamic law. Therefore, the whole issue of divorce requires an examination not only of the constraints on the application of their rights under Islamic law but also of women's education and awareness of their rights within their own system of belief.

In the background to the above mentioned description I would like to conclude briefly that the purpose of the conference would be to discuss how far the interpretations of divorce law in Muslim family tradition could be stretched to provide women an equal right of divorce.

Inter-disciplinary and trans-national

As mentioned above the fields of trans-national activities have escalated with globalization and fast communication in the world. The trans-national cases have social, political, economic and anthropological aspects and therefore need solution from the interdisciplinary approach and perspective. The conference through discussion with the legal anthropologist from Nordic countries Europe, and Muslim countries would help facilitating and fostering inter-disciplinary analysis to the trans-national legal cultures and issues. Scholars from the various disciplines of the University of Copenhagen would be involved in the workshop to enhance their on going projects, to undertake further researches in the field and to get motivated to start bigger research projects.

One of the lessons learnt from the previous workshop was that family law issues (divorce in the present case), in Europe should be understood broadly involving the interdisciplinary scholars from Muslim background or countries of origin from where the migration has commonly taken place. One of the goals of the workshop is also to facilitate Danish scholars to establish an international research cooperation which can provide ground for bigger research projects.

Therefore it is proposed for the present workshop to invite at least five to six scholars from Europe and Nordic countries and four to five renowned scholars from the Muslim background or countries.