A marriage is a time for celebration and joy, and cricketer Shoaib Malik will no doubt be eager to put the embarrassing episode of his first marriage far behind him before getting hitched to Indian tennis star Sania Mizra next week.
Smooth operator: Malik was apparently married over the phone in 2002
There will be a huge difference between the two marriages - he'll be present in person for this one, not merely on the end of a telephone line.
Malik is reported to have conducted an internet and telephone relationship with Ayesha Siddiqui from Hyderabad, finally tying a long-distance knot with her in 2002.
According to a story on the front page of the Indian daily newspaper The Hindu, telephone marriage has taken off among Indian Muslims, and in many Muslim countries.
"Marriages are made in heaven. But in this age of information technology they are taking place over the net and telephone too," it says.
But many people, it continues, have been left "wondering whether telephonic marriage is legitimate at all."
'Everything is possible'
The Times of India has reported that Muslim clerics are divided over the legitimacy of "phone marriage", with one arguing that it is not valid because the witnesses need to be present, alongside the bride and groom, to sign the marriage contract.
Ayesha Siddiqui's mother says she is happy with the divorce
"Telephone nikah (matrimonial contract) is no longer valid, simply because all four parties cannot be at the same place to sign the nikahnama (wedding registration certificate) if the nikah is taking place over the telephone, with the bride and groom in different cities or countries," Mohammed Khader Ali, Sadar Qazi, chief Qazi of Hyderabad, was quoted as saying.
But international lawyer Gabriel Sawma, an authority on Sharia law - including Islamic marriage contracts - argues that telephone marriages, and even internet marriages, could be perfectly legal.
"There are so many cases of marriages being conducted in so many different ways - everything is possible within reason," he told the BBC News website.
Both the Malik and Siddiqui families are said to follow the Hanafi school of Islamic tradition.
Mr Sawma explained that in his view, a marriage contract agreed upon by a telephone conversation is valid as long as it satisfies the main Hanafi requirements, including:
a proposal to marry and acceptance by the other party
providing witnesses: two male witnesses or one male and two females attesting that they heard the telephone conversation
a financial or "mahr" provision
The mahr, he explains, is an amount of money, or any object that has value, that will be given by the groom to the future bride.
"Mahr is an obligation on the husband and is a necessary component of any Islamic marriage contract," said Mr Sawma.
In the Hanafi tradition, the mahr is divided into a "muqaddam" (upfront), to be paid at the time of signing of the contract and a muakhar (deferred) to be paid at the time of divorce or death, he explained.
Quickie divorce
He said that the proposal must be clearly expressed and it must be met with a clear acceptance.
The husband has the right to divorce his wife by simply stating: 'I divorce you, I divorce you, I divorce you.'
Gabriel Sawma, international lawyer
"Should these three elements occur, the marriage will be considered legal and binding. The contract does not have to be written. It can be verbal and will have the full force of the law under Islamic Sharia," said Mr Sawma.
He drew parallels with the practice of couples entering into a marriage via correspondence, centuries ago.
"As long as the letters contained all the requirements and were signed in front of witnesses, this would constitute a marriage contract," he said.
Given the level of interest in the marriage, Shoaib will be no doubt thankful that the divorce was relatively straightforward. In a number of countries - including India - a Muslim man can divorce his wife in a matter of minutes.
This has included divorce by mail, over the phone and even via mobile phone text messages.
"In the Hanafi jurisprudence, the husband has the right to divorce his wife at any time or in any place at will by simply stating: 'I divorce you, I divorce you, I divorce you,' says Mr Sawma.
His wife will be immediately divorced if there are at least two male witnesses. The husband is then obligated to give "nafaqa" (alimony) to his wife for three months.
Shoaib has apparently agreed to pay 15,000 rupees (about $337; £220) to Ayesha for three months.
According to many reports, Shoaib's divorce means that he is now free to marry Sania next week. But technically, they could have got married anyway, as Islam allows a man to take four wives as long as he is able to meet all their needs.
Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts
Excerpts of the lecture on "Islamic Shari'a in Theory and Practice" presented to the College at Florham Library and PubliMind Poll of Fairleigh Dickinson University, April 5, 2010. The speaker was Professor Gabriel Sawma.. You may see the lecture in its entirety at the following link: http://youtu.be/XUKcsCAiDbE
In 1979, the Soviet Union invaded Afghanistan for the purpose of establishing a communist regime in that country. The following ten years witnessed the death of close to one million people. As a result there were tens of thousands of children who have lost their parents.
The United States, being an adversary to the Soviet Union back then, along with Saudi Arabia, initiated an effort to establish schools for those children in Pakistan. The schools came to be known as "madrassa" an Arabic term, means 'school'; the etymology of the word is Aramaic "D R SH"; Syriac "madrashto". The students came to be known as "Taliban" from Arabic 'talib', meaning student.
You would think those "Taliban" will study math, physics, geometry, history, etc. None of that happened; instead they were taught how to memorize the Quran. In Islam, there is more emphasis on memorizing the text of the Quran than understanding its meaning. Understanding the meaning of the Quran in Arabic is not an easy task.
The Soviet Union Withdraws from Afghanistan In 1989, the Soviet Union withdrew its forces. The "Taliban" returned to their country. Another civil war erupted. In 1994, the "Taliban" started their occupation of the the major cities. They commanded, under the leadership of Mulla Umar, that Islamic Shari'a should be the law of the land.
In 1996, the general presidency of Amr Bil Maruf, issued a series of ordinances. Among those are the following:
1- To prevent music. 2- To prevent beard shaving and its cutting. After one and a half months, if anyone observed who has shaved his beard, he will be put under arrest. 3- To prevent keeping pigeons and "playing with birds". 4- To prevent kite-flying. The kite shops were order to close down. 5- To prevent idolatry by removing any picture displayed. Displaying pictures under the Taliban was prohibited. 6- To prevent gambling. 7- To prevent "the British and American hairstyles." 8- To prevent the "riba" (i.e. interest rate on loans.) 9- To prevent "washing cloth by young ladies along the water streams in the city. Violators ladies should be picked up with respectful Islamic manner, taken to their houses and their husbands severely punished." 10- To prevent music and dances in wedding parties. "In the case of violation the head of the family will be arrested and punished." 11- To prevent "sewing ladies cloth and taking female body measures by tailor. If women or fashion magazines are seen in the shop, the tailor should be imprisoned." 12- To prevent sorcery. All the related books "should be burnt and the magician should be imprisoned until his repentance."
The Taliban issued further rules regarding work in the hospitals and clinics. This includes: 1- Female physicians can see female patients. In case a male physician is needed, the female patient should be accompanied by her close relative. 2- Male physicians can check the "affected part of her body" only. 3- Waiting room for female patients should be "safely covered". 4- At night, male doctors are not allowed to visit female patients, unless the patients request that. 5- Male physicians are not allowed to communicate with female physicians without a "hijab." 6- Female doctors should wear simple clothes; they are not allowed to wear stylish clothes or use cosmetics or make-up. 7- Female physicians and nurses are not allowed to enter the rooms where male patients are hospitalized. 8- Hospital staff should pray in mosques on time.
All of these rules and regulations were instituted in the name of Islamic Shari'a.
Today, there are several countries whose laws are bound by Islamic Shari'a; they are: Pakistan, Iran, Saudi Arabia and Sudan. In recent years, Nigeria and Somalia started implementing Islamic Shari'a as well.
What is Islamic Shari'a? Shari'a is defined by Muslim scholars as "the way" Muslims should live by. It is a "path" like "shiraa'" (i.e. sailing ship.) It is derived from the sacred texts of Islam: The Quran and the Sunnah.
1- The Quran, which is composed of the Revelations descended on the Prophet of Islam begining in 610 AD until his death in 632AD.
2- The Sunnah, which includes the saying and deeds attributed to the Prophet of Islam.
In Sunni Islam, there are 4 Schools of jurisprudence, they are: Hanbali (precursor of the Wahabi), Hanafi, Shafii, and Maliki.
I- The Quran The etymology of the term is Eastern Syriac "Qiryana", or Western Syriac "Qiryono" meaning "a reading", or "call". The Syriac Orthodox Church still uses the term "qiryono" in its liturgy.
The Quran contains the revelations, which descended on the Prophet of Islam, when he was 40 years old. The revelations descended from Allah (God) through the angel Gabriel (Arabic Jibreel.)
The Quran states that the Prophet of Islam was "ummi" (unlettered.)The final compilation of the Quran occurred under the auspices of the 3rd. caliph, Uthman. This compilation is known as "Musshaf Uthman."
Muslim scholars believe that the Quran is miraculous because it was revealed to the Prophet who is called "ummi". The text consists of 114 chapters, each known as "sura". Some of its chapters were revealed in Mecca, others in Medina. Each "sura" or chapter is formed from several "ayat" (i.e. verses). The number of verses differs from one chapter to another. The script of the modern text differs from the earlier Kufi and Ma'eel scripts, which did not contain the diacriticals or the vowel signs.
The Quran calls for warship of Allah alone, with no partner and no companion and no son. This runs contrary to the Christian belief in the Holy Trinity.
The Quran claims that Christians and Jews have corrupted the texts of the New Testament and the Old Testament without offering evidence to that effect.
The Quran states that those who reject its teachings, will face torment for their disbelief.
It lays down the commands that every Muslim must abide by. It sets obligations on the believers for what to do and what not to do.
The Quran commands the believers to believe in "The Day of Judgment." It also talks about the tales of previous nations.
It talks about the dress code for women and contains penalties (hudud) for violation of certain norms such as adultery and theft.
It describes the life in Paradise and Hell and sets out conditions for the marriage contracts and divorce.
It prohibits interest rate on loans "riba" and regulates commerce and trade among people.
It abolishes certain trends that were current in the Prophet's environment in Arabia, such as the burying of infant girls alive.
It abolishes the worship of deities. The worship should be to Allah alone.
It gives specific details on inheritance share among Muslims.
The Quran is considered to be the first source of the Islamic Shari'a. Every single verse constitutes the supreme authority and commandment.
Shi'a Islam
Shi'a Islam on the other hand believe in the Quran and the teachings of the Prophet of Islam and his family, and sometimes, it is referred to as the "School of Ahlul Bayt" (the family of the Prophet, or "Shi'a Ali". They spread into several branches, prominent among them are:
1- The Twelvers; they believe in the lineage of the Twelve Imams. They believe that the descendants of Muhammad through his daughter Fatima Zahra and his son-in-law Ali are the best source of knowledge about the Quran and Islam. The Twelvers recognize the succession of Ali, Muhammad's cousin and son-in-law and the first man to accept Islam (second only to Muhammad's wife, Khadija), the male head of the Ahlul Bayt as opposed that of the caliphate recognized by Sunni Muslims. The Twelvers believe that Ali was appointed successor by Muhammad's direct order on many occasions, and that he is therefore the rightful leader of the Muslim faith. The Twelvers constitute 85% of the Shi'a population. They are mainly in Iran and Lebanon.
2- Zaidi, mainly found in Yemen.
3- Isma'ili, they are found in Kufah (Iraq), Afghanistan, Pakistan, Uzbekistan, India, Yemen, China and Saudi Arabia.
II- The Sunnah The Sunnah constitutes the sayings and practices attributed to the Prophet of Islam. Those sayings and deeds are recorded in the volumes of Hadith literature. It includes everything the Prophet of Islam said, did, or agreed to.
During his ministry, the Prophet of Islam, his family and companions observed him and shared with others what they had seen in his words, deeds and behaviors. People asked him directly for rulings on various matters, and he would pronounce his judgment. His sayings and deeds were passed on and recorded in the Hadith literature, which is called the Sunnah. It constitutes the second sacred source of the Islamic Shari'a.
III- Non-Sacred Sources, the Ijma' Ijma' is defined as the consensus among Muslim jurists on a particular legal issue. This constitutes the third non-sacred source of the Islamic Shari'a. It has been considered a third source because the Prophet of Islam says in the Sunnah: "My followers will never agree upon an error or what is wrong."
Sunni jurists consider ijma' as a source, in matters of legislation, as important as the Quran and Sunnah. While Shi'a jurists, consider ijma' as source of secondary importance, and a source that is not free from error.
Who is Eligible to Participate in Ijma' in Sunni Islam? Hanafi: public agreements of Islamic jurists; Shafii: the agreement of the entire community and public at large; Maliki: the agreement among the residents of Medinat Rassul Allah (i.e. Medina); Hanbali: agreement and practice of Muhammad's Companions.
IV- Qiyass This is defined as the analogical deduction. It is the fourth source of Islamic Shari'a in Sunni Islam.
Shi'a jurisprudence do not accept the qiyass; they replace it with reasoning "aql" or "ijtihad."
When a jurist is confronted with an unprecedented case, he bases his argument on the logic used in the Quran and Sunnah. Jurist's ruling is not based on arbitrary judgment, but rather the primary sources of the first two elements. Supporters of this 4th element often point to passages in the Quran that describe an application of a similar process by past Islamic communities. In one Hadith, the Prophet is reported as saying: "Where there is no revealed injunction, I will judge amongst you according to reason."
The qiyass is sanctioned by the ijma', or consensus, and among the companions of the Prophet of Islam. But Sunni Schools of jurisprudence differ on the importance attached to the qiyass. They express the following opinions: the Hanafi school of thought supports qiyass very strongly; the Shafii accepts qiyass as a valid but weak source of Islamic Shari'a; the Maliki accepts qiyass as a valid source of legislation and added "public good" to the determination.
V- 'Urf Referred to as the customs and practices of a given society. 'Urf is not recognized officially as source of Islamic Shari'a.
Customs that were prevailed during the time of the Prophet of Islam were recognized as source of Islamic Shari'a, provided that Islam did not abrogate those traditions.
'Urf holds as much authority as ijma' (consensus) and more than qiyass as long as it does not violate provisions from the Quran or the Sunnah.
Application of the 'urf is recognized in the Sunni jurisprudence if the tradition under consideration commonly prevails in the region in which it is implemented. Traditions of foreign jurisdictions can not be accepted as 'urf in aother jurisdictions.
If the 'urf contradicts Islamic divine texts, the customs are considered illegal and should be disregarded. If 'urf contradicts a qiyass (analogical deduction), then it is given a preference and must supersede the qiyass.
Shi'a do not consider 'urf as source of jurisprudence.
Gabriel Sawma, adjunct Professor at Fairleigh Dickinson University, admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Author of "The Qur'an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur'an." Expert Consultant on Islamic Shari'a in US Courts in matters related to Islamic divorce, Islamic banking and finance. Email: gabrielsawma@yahoo.com; Tel. (609) 915-2237
London, England (CNN) -- A growing number of Egyptian women are demanding a divorce and seeking counsel for their marriages, as the social stigma against it weakens and talking about relationship problems becomes more popular in the media.
Once considered taboo to discuss in public, private relationships between men and women are now the hot topic of television talk shows, radio programs and blogs. Mahasen Saber, host of Divorce Radio, says that her program is helping to break the stigma.
"People are shocked at first, but after they read and listen to what we write and present, they like what we talk about...they are happy because I am talking about something they are dealing with" Saber told CNN.
Earlier this year she launched the radio show to complement her blog called "I Want A Divorce."
In 2008 the number of Egyptian couples who divorced increased 8.4 percent over the previous year, according to the Central Agency for Public Mobilization and Statistics (CAPMAS).
In most cases couples simply don't know how to deal sexually with their partner --Dr Heba Kotb, Egyptian sexologist
Nearly 40 percent of marriages in Egypt now end in divorce, making it the highest rate in the Arab world. Egypt is also one of the few countries in the region where the topic is discussed so freely, thanks largely to the initiative of outspoken women.
"Women are taking advantage of new media outlets to voice their concern," said Nadya Khalife, a Human Rights Watch researcher focused on women's issues in the Middle East. "They are talking more openly about these issues. They are becoming less shameful in Egyptian society."
Those issues include sex. Dr. Heba Kotb is a leading sexologist in Cairo who appears regularly on TV. She has two PHD's, one in sexuality from the University of Florida, and she considers herself a conservative Muslim. Dr. Kotb attributes 80 percent of divorce in Egypt to sexual problems.
"In most cases couples simply don't know how to deal sexually with their partner," she told CNN. "I provide the information -- this is right, this is wrong, you should do this."
"Often it is just miscommunication. The psychology of men is not understood by women and vice versa."
When Dr. Kotb started her practice eight years ago, she saw only a handful of patients per week. Today she is booked months in advance. "People now think it does not have to be the end of the marriage when they have problems. [They think] it's worth it to give counseling a try."
For Egyptian women, getting divorced has traditionally carried with it a severe stigma. "The main perception of a woman who is divorced in Egypt, or in any Arab country, is that she is evil or something is not right ... that she has done something wrong" said Saber. "I started Divorce Radio to change that view."
"The stigma has nothing to do with religion. It's culture," said Madiha el Safty, professor of sociology at the American University in Cairo. "Egypt is a patriarchic society, very male-dominated. Men always blame women for all their problems, but the stigma [against divorced women] has eased"
"It has to do with the the rights of women. Now we have more rights -- in education, employment, we have more economic independence. So [women] are less willing to accept an unhappy marriage," Dr. Kotb told CNN.
Dr. Kotb also blamed the high rate of divorce on the fact that "a relationship equals marriage" in Egypt. "In the West, it's a matter of breaking up. Here there is no living together."
Saber agreed: "In Egypt, there is no space to have a relationship without marriage. It's the dream of every girl in Egypt to get married," she said.
In Egypt marriage falls under family law, which is based on Shari'a, Islamic religious law, and which gives men and women unequal rights to a divorce.
"In Islamic Shari'a, a man can divorce his wife at any time, in any place, and for any or no reason by simply uttering the following words: "I divorce you, I divorce you, I divorce you," explained Gabriel Sawma, an attorney specializing in Muslim divorce law and professor at Farleigh Dickinson University.
Women, on the other hand, can get a divorce only through court action, in a much more formal legal process.
In 2000, Egypt liberalized their laws, granting women the right to initiate a "no-fault" divorce (khula). Though this is considered a step forward, women are still required through khula to relinquish any claim to alimony or their dowry.
"There was an effort to modernize divorce," said Prof. Sawma. "Before, the man was not obligated to agree to a divorce."
Three weeks ago, Iran revealed that it had a uranium-enrichment facility near the holy city of Qum. The U.S. began working with its allies, mainly France and Great Britain for a fresh round of sanctions against Tehran. This article addresses the effect of sanctions on Iran
Iran’s nuclear program has been a matter of international concern ever since the discovery in 2003 that it had concealed its nuclear activities for 18 years in breach of its obligations under the Non Proliferation Treaty (NPT). In March 2007, the United Nations Security Council acted unanimously to tighten sanctions against Iran, imposing a ban on arms sales and expanding the freeze on assets, in response to the country’s uranium-enrichment activities, which Tehran says are for peaceful purposes, but other countries, including USA, France and Great Britain, contend are driven by military ambitions.
On the last Friday of August, the U.N. International Atomic Energy Agency (IAEA) released its latest report on Iran’s nuclear-energy program, announcing that it “does not consider that Iran has adequately addressed the substance of the issues.” U.S. State Department spokesman Ian Kelly said in response to the report, “it seems clear that Iran continues to not cooperate fully and continues it enrichment activities.”
Since 1987, U.S. government agencies have implemented numerous sanctions against Iran: U.S. Treasury oversees a ban on U.S. trade and investment with Iran. This ban may be circumvented by shipping U.S. goods to Iran through other countries; The U.S. State Department administers laws that sanction foreign parties engaging in proliferation or terrorism-related activities with Iran. The State Department and Treasury can use financial sanctions to freeze the assets of targeted parties and reduce their access to the U.S. financial system. In addition, the U.S. imposes travel and sanctions to Iran. But do these sanctions work?
U.S. politicians have talked up for months that U.S. can block sales of refined gasoline to Iran as a way of ratcheting up pressure on the government of Mahmoud Ahmadinajad. During last year’s U.S. presidential campaign, the idea of blocking refined gas to Iran was raised by the candidate Obama as “putting the squeeze” on Ahmadinajad. In April of this year, the U.S. Senate introduced a bipartisan Iran Refined Petroleum Sanctions Act, which would expand the sanctions imposed by President Bill Clinton in 1996. The Act gives the White House the authority to sanction companies that export gas to Iran. But how effective is this action?
Iran sits on a vast source of energy reserves –about 136 to 140 billion barrels of oil and some 14 trillion cubic meter of natural gas. But because its refineries are too few and too old to meet the demand at home, the country refines just two-thirds (440,000 barrels/day) of the gas it needs to keep the economy working for 66 million people. The remaining one-third, or about 120,000 barrels/day has to be imported from a fairly small number of Swiss, Indian, Malaysian and Chinese firms. Major Western oil companies operating in Iran, including Total, Royal Dutch and ENI, have held off from signing new deals with the Iranian government for several months.
Iran‘s government of Ahmadinajad, keen to keep voters happy, have subsidized gas. Iranians are entitled to 26 gallons of fuel a month at a price of 38 cents per gallon. If U.S. blocked imports of refined gas, the Iranian government could simply ease its subsidies and blame the U.S. for the suffering of its people. Subsequently, the demand for refined oil will dip.
On the other hand, China’s booming population and its increased demand for oil has been working on massive upgrades of Iran’s refineries. If Iran can upgrade its refineries, they will be self sufficient for few years to come. China estimates that crude oil imports will rise to meet 60 percent of its demand by 2020. That led Beijing in the midst of the nuclear debacle with Iran, to strike a deal with about $2.5 billion. Last month, the China National Petroleum Corporation sealed an agreement with the National Iranian Oil Company, a state-run enterprise, to develop an oil field in Southwestern Iran.
Recently, Iran’s ties with China have accelerated rapidly. In December 2007, the Chinese oil giant Sinopec Group signed a $70 billion deal to begin drilling in Iran’s Yadavaran field. Its estimated reserves can reach 17 billion barrels. In January of this year, China’s largest energy producer, CNPC, agreed to develop an oil field in the North Azadegan, a deal worth $2 billion. In August, Iranian oil officials flew to China to negotiate a $5 billion deal with CNPC for the development of South Pars gas field near the Arabian Gulf. Combine that with the fact that Iran already provides about 14 percent of China’s oil needs. Having invested tens of billions of Dollars in Iran’s energy sector, China, a permanent member of the United Nations Security Council, may veto any new tough sanctions against Iran. On Thursday China said is was seeking to increase cooperation and high-level exchanges with Iran, suggesting a remote possibility of agreeing to additional punitive measures of Iran’s nuclear program.
Russia, for its part is preparing to sign a deal for the sale of anti-aircraft technology to Iran, and has less appetite to agree on tough sanctions, despite the initial jubilant reaction of President Dmitry Medvedev over Mr. Obama’s scrapping of the Eastern European missile shield program. In his meeting with President Obama at the United Nations last month, President Medvedev said that “sanctions rarely lead to positive results, but sometimes, sanctions are inevitable.” He reiterated his views to Secretary of State Hillary Clinton in Moscow on Tuesday, American officials said. Russia’s Prime Minister, Vladimir V. Putin, said that sanctions were “premature” and two days after its foreign ministry, Sergey V. Lavrov, said that threatening Iran while talks were under way would be “counterproductive.”
So far, Iran has managed since June 2007 to reduce its gasoline imports from 40 percent of total domestic consumption to 25-30 percent without political fallout. Moreover, with Russia and China willing to supply Iran with gasoline, a situation over which the United States has limited leverage, it would seem difficult for the U.S. to enforce any embargo short of military-backed blockade, or a military strike on Iranian nuclear facility by the U.S. or by Israel.
Military blockade or strike may encourage Iran to sabotage the oil fields in southern Iraq, risking 1.8 million barrels/day of oil export for several weeks and possibly months. In addition, Iran can sabotage the oil fields in the Arabian Gulf or even close the Straight of Hurmuz, through which about 20 percent of the world’s oil export passes. In either situation, the price of energy will spike and that will reflect on the U.S. fragile economic recovery, and may cause the U.S. Department of Energy to release the Strategic Petroleum Reserve (SPR), which stores about 700 million barrels of crude oil, capable of supplying 4.4 million barrels a day for up to 90 days.
No matter how tough the sanctions are, there is always room for American products to find its way into Iran. Most U.S. exports are found in the markets of Tehran, from GE refrigerators to Apple laptops and other items. They are smuggled via the Arabian Gulf States. In addition, the sanctions have restricted U.S. companies from doing business in Iran and opened the door for Russia, Chinese and other European firms to do business in Iran.
Gabriel Sawma is Professor of Middle East Constitutional Law; Author of “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an.” http://www.syriacaramaicquran.com; Expert consultant on Islamic divorce in US courts; Editor of International Law blog: http://www.gabrielsawma.blogspot.com; Email: gabrielsawma@yahoo.com
Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts
According to Islamic jurisprudence, a man can divorce his wife at any time, in any place, and for any or no reason. However, a woman is given the right to request the religious judge (qadi) to annul (faskh) her marriage if she can prove that the marriage exhibits certain defects that make achieving the purposes of the marriage impossible.
A husband’s impotence is ground for termination of marriage, provided that the condition lasts more than one year according to the Hanafi School of thought in Sunni Islam. In some cases, if the husband contracts leprosy, the wife may seek separation. At the spouse’s request, the religious judge may issue an order of annulment if the other party contracts serious communicable illness, whereby it becomes barrier to the enjoyment of marriage.
Religious unsuitability is another barrier. According to Islamic Shari’a (law), a Muslim woman is not allowed to be married to a non-Muslim (Jewish or Christian or Hindu). A marriage of Muslim woman to non-Muslim man is subject to annulment by the religious court. Should a non-Muslim married woman convert to Islam; the religious judge may force the couple to separate and the marriage to be terminated. The non-Muslim husband is obligated to pay the necessary mahr and nafaqa (spousal support).
A woman coerced, by person other than her father or paternal grand-father, to marry, may ask the religious judge to annul the marriage on the basis of “unsuitability” in class, education, wealth or others. She may also request an annulment if she was made to agree to an arranged marriage during her legal minority. In this case, she can ask a religious judge to annul her marriage provided the following conditions are met: (1) the marriage was arranged by a person other than her father or paternal grand-father; (2) she has to request the annulment as soon as she becomes in her majority.
Request for termination of a marriage by the wife is permissible when the husband doe not support his wife with food, shelter and clothing (nafaqa) either due to poverty or he disappeared without leaving his wife with adequate support. However, opinions differ on this matter from one School of thought to another. The Hanafi School of jurisprudence does not encourage a divorce based on the husband’s inability to provide for spousal support (nafaqa). The Hanbali and Shafi’i Schools, for the purpose of maintaining a wife or let her go, agree with a request of termination of marriage by the wife.
The Hanafi School allows a wife to be separated and her marriage be annulled only if she received confirmed news that her husband has divorced her legally, died, or changed his religion and became apostate, otherwise, the wife is considered still married no matter how long the husband is absent.
Publication or reprinting this article is hereby authorized by the author.
Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Arabic. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law web log, http://www.gabrielsawma.blogspot.com; Email: gabrielsawma@yahoo.com
In Islamic marriages, the wali (guardian) has an important role to play. This article discusses the responsibility of the wali according to the Hanafi jurisprudence.
The “wali” or guardian in Islam is a Muslim individual responsible for the well being of the bride before her marriage. His duty is to ensure that the groom is reliable and trustworthy to marry the bride and carry out his obligations as husband.
The Hanafi School of jurisprudence assigns the “wilayah” (guardianship) to the following individuals: the son of the bride if she was previously married, his son, and the grandson’s descendants. If the bride was not married before, the succession of guardianship goes to: the father, her paternal grandfather and above in the paternal succession, the brother from her parents, brother from her father, son of the brother from her parents, his paternal descendants, the uncle from the father’s parents, uncle from the father, her male cousin from his parents, cousin from his father, the cousin’s son, his paternal descendants, father’s uncle from parents, father’s uncle son from father, his paternal descendants, etc.
The above mentioned individuals have “wilayah” (guardianship) over the bride when she is under age. Not only minors could be married off by their guardians, other legal incompetents, including the insane, could be married off too by the guardians. Guardianship ends at the age of legal majority except for the mentally challenged children, male or female.
In the event none of the paternal “wali” listed above is available for guardianship, the Hanafi School allows any member of the family to be guardian, provided that he or she is entitled to inheritance in accordance with Islamic Sharia. In such a situation, the “wilaya” may go to the mother, her daughter, the daughter of the grandson, daughter of the daughter’s daughter, etc.
If there is no family member available, the “sultan” (the ruling sovereign), the “qadi” (religious judge), or whoever the “qadi” chooses, can be assigned to have guardianship.
Types of the “wilayah” (Guardianship)
In Islam, there are two types of “wilayah” (guardianship), one is called “wali mujbar” (or mandated guardianship) and the other is “wali ghayr mujbar” or not-mandated guardian. In the Hanafi jurisprudence, the only guardianship acceptable is the former. Thus, the job of mandated guardian is to protect the well being of their under-age children, to choose the suitable husband for marriage and to negotiate the “mahr” agreement. (See our discussion of the “mahr” at http://gabrielsawma.blogspot.com/2009/07/mahr-provision-in-islamic-marriage.html. It is within the context of guardianship that we may understand the stress it places on the special responsibility of the “wali” of the minor in the process of arranging her or his marriage even before the child reaches puberty.
A “wali” is entrusted with furthering the well-being of his or her child and protects the child’s interests including the arrangement of an early marriage. This role extends to the mentally ill, because like the rest of society, they too benefit from being in the married state.
The “wali’s responsibility is to look that the rule of “kafa’a” (suitability) of the would-be spouse in terms of lineage, legal status, social class, and moral standards are met. A highly educated girl needs to be married to a person who is at her level or better. A girl from rich family should marry a man who is as wealthy as her family is.
Under the rule of the Hanafi School, the father and grandfather may give the minor for marriage, such arrangement is considered legal. If the partner chosen by the father or grandfather turned to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), the marriage will still be considered legal; the minor cannot request separation when he or she reaches puberty. However, should the father or grandfather enters into a marriage contract on behalf of a second minor; the rule is that the second marriage may be dissolved when that minor requests it at the age of puberty.
If the ‘wali mujbar’ (mandated guardian) is someone other than the father or grandfather, who gives the minor for marriage to someone who is known to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), then the minor may request “faskh” (separation) upon reaching puberty; in this case, the “qadi” (religious judge) will order separation.
The Role of the Guardian in the Marriage Contract
According to the Hanafi School, the presence of a guardian in the marriage of the minor is essential and mandatory. His absence during the negotiations leading to marriage causes the marriage to be null. This rule applies as long as the spouse is minor; however, the guardian’s absence does not nullify the marriage if the spouse is no more minor, provided that the he or she is getting married to a person who is considered “kafu’” (suitable). If that person is found to be “ghayr kafu’” (unsuitable), the guardian may step in and requests the annulment of the marriage.
Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant on Islamic divorce, inheritance, child custody, banking, and finance. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law website at http://www.gabrielsawma.blogspot.com. Author of “The Aramaic Language of the Qur’an, http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com; Email: gabygms@gmail.com.
The Hanafi School of Jurisprudence is one of the four Schools in Sunni Islam. It was founded by Nu’man abu Hanifa (d. 767) in Kufa in modern Iraq. Abu Hanifa (father of Hanifa) is considered one of the “tabieen” (followers) of the companions of the Prophet Muhammad. He had the good fortune to have lived during a time when some of the companions of the Prophet were still alive The Hanfi School became prominent under the Abbasid Dynaty and later under the Ottoman Empire, during which the Hanafi “madhhab” (school of jurisprudence) became the only authoritative code of law in the public life and official administration of justice in all the vast territories of the Ottoman Empire. Today, the Hanafi School of thought has followers among Muslim population in Turkey, Albania, the Balkans, Central Asia, Afghanistan, Pakistan, China, India, Iraq, Egypt and Lebanon.
Marriage Contract in the Hanafi Jurisprudence According to this School, the “nikah” (marriage) is a contract by which the husband gets “the intended sexual relation” from the woman. This School believes that, the husband enjoys the “bid’” (body of the woman) and all of the “badan” (organs) for the purpose of “taladhudh” (enjoyment). The right to “sexual enjoyment” is given to the man only. This “enjoyment” does not extend to the woman. According to this School, the man may force his wife to exercise his “haqq al-isstimta’a” (the right to enjoy sex), while the woman may do so “one time only.” (See Al-Jazeery, Kitab al-Fiqh, vol.4, p. 2. Dar al-Irshad lil-tibaa’a wal-nashr, Egypt ). The marriage contract can be in writing or orally, and could also be done by correspondence.
Conditions of the Marriage Contract A marriage contract is valid, according to the Hanafi School, if the following conditions are met: (1) “Ijab” (propose to marry) and “qubul” (accept to marry) by both parties or their “wali” (guardians). Both “ijab” and “qubul” must be expressed clearly; the term “nikah” or “zawaj” (i.e marriage) must be pronounced during the negotiations of the marriage agreement. (2) “Ijab” and “qubul” must occur in one meeting. If for example the father of the girl offers her for marriage “ijab” by saying: “I give you my daughter for marriage”, the “qubul” (acceptance of the groom or his guardian) must be pronounced in the same session. In other words, if the groom, or his guardian, responds at a later time, his response does not meet the requirements of the Hanafi; thus the marriage does not occur. (3) Bothe “ijab” and “qubul” must be in total agreement on the specifics; if, for example the father of the bride offers her for marriage demanding $200 for “mahr”, the groom agrees to the marriage but does not agree to the amount of “mahr”, then the terms of the contract is not agreed upon, and there is no marriage. (4) Both “ihab” and “qubul” must be heard clearly by the parties involved in the discussion. (5) There must be no time limitation for the period of the marriage. A marriage done for a specific period of time is called “mut’ah” (marriage for pleasure only) and is considered illegal in the Hanafi School.
Gabriel Sawma is Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Expert Consultant on Islamic divorce in US courts, Islamic banking and finance. Editor of International Law website at http://www.gabrielsawma.blogspot.com. Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com. Email gabrielsawma@yahoo.com; Email gabygms@gmail.com.
Jihaz (dowry) or trousseau is the amount of clothes, household linen, furniture and other belongings contributed by the bride and/or her family to the marriage. It has to be distinguished from the mahr, which is an agreement between the wali (guardian) of the bride and her future husband by which the groom pays certain sum of money or its equivalent to the bride at the signing of the marriage agreement. The mahr is an obligation on the groom, stipulated by the Quran, to be given to the future wife, while the jihaz is not an obligation on the part of the bride or her family. (For more information on the mahr agreement, see our article on http://www.gabrielsawma.blogspot.com.
The Jihaz is not nafaqa (support) either, because nafaqa is the material support given by the husband to his wife as soon as the marriage is consummated. The nafaqa covers clothing, food and shelter for the wife. (For more on the nafaqa, see our article on http://www.gabrielsawma.blogspot.com
In the Middle East, as elsewhere, the brides are often given house furnishings and clothing by their parents or family members when embarking on marriage. There is no obligation in the Islamic Shari’a to fulfill the jihaz, however, in most cases, brides bring such jihaz to their houses once they are married.
Consequently, the groom cannot force his future wife to bring the jihaz as part of the household, and if her family is asked to contribute such jihaz, they may decline the demand.
Once the jihaz is given to the bride, it becomes her own property. Her family cannot claim it as part of their estate unless the jihaz was given as a loan agreement. Under such circumstances, they may demand the return of the jihaz.
The groom cannot have claim on the jihaz, unless it was purchased by the bride or her family, with monies given by the groom as part of the mahr agreement, where the jihaz becomes a mahr and therefore belongs to the groom.
The bride’s father may have a legal agreement with his daughter stating that certain pieces of the jihaz she took with her upon marriage were in fact a loan, and therefore revert to her family upon death. Otherwise the jihaz is considered a private property of the bride and becomes part of her estate.
The jihaz contributed by the bride and /or her family endorses the idea that she enters into marriage as an empowered individual. The marriage arrangements in the Middle East involving jihaz, predate the rise of Islam.
There is no provision in Islamic Shari’a that forbids the exercise of women’s right to contribute jihaz to their marriages. In fact, under Islamic law, married women have legal rights to share in family estate. They may own properties, or be named as beneficiaries of religious waqf (endowment) assets.
Gabriel Sawma is a lawyer with Middle East background, professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant in matters related to recognition and enforcement of Islamic divorce, child custody, banking and finance in US courts. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of http://www.gabrielsawma.blogspot.com Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com Author of an upcoming book on Islamic Divorce in US Courts. Email: gabrielsawma@yahoo.com Email: gabygms@gmail.com
Republishing and reprinting this article is hereby granted by the author.
Under Islamic Shari’a, a man is obligated to support his wife with food, clothing, and shelter. His obligation starts as soon as the marriage is consummated. This article discusses the issue of nafaqa in the Islamic marriage.
In Islamic Shari’a, nafaqa is defined as an obligation of material support for the wife and children. This is a gendered entity in Islamic marriage, as long as the marriage has been consummated. When the marriage is consummated, the husband becomes responsible for providing his wife and children born of the marriage with food, clothing, and shelter regardless of the wife’s own resources. This obligation is stated in the Qur’an; it reads the following: “Men are protectors and maintainers of women because God has given them the one more than the other, and because they support them from their means [their money]” (Qur’an 4: 34). Failure of the husband to provide the nafaqa may result in a jail sentence.
If the husband leaves his house to undisclosed location, the qadi (religious judge) is authorized to locate the husband’s assets to recover the unpaid nafaqa. If the husband is beneficiary of any revenues, or has any outstanding debts owed to him, the qadi could assign the proceeds equivalent to the amount of nafaqa to the wife.
The nafaqa is determined at a level appropriate to the wife’s social standing and background; the qadi may determine the amount of nafaqa in accordance with the style to which the wife is accustomed. Thus, a poor woman may get a bread and cheese for her lunch; a middle class wife would expect to receive grain and animal fat, while a rich wife may get wheaten bread and meat.
As a general rule, the husband has an obligation to support nafaqa to his wife or wives until such time as the marriage is terminated by divorce or death.
In the event of divorce, the former husband must continue to support his wife for the following three months of her ‘iddah, a waiting period after divorce, during which a woman may not marry another man. At the end of her ‘iddah, the wife is legally free to remarry. If the wife should die during that period, the husband is responsible for the burial costs. The ‘iddah is extended, for a pregnant woman, until after the birth of her child.
There should be a clear distinction between mahr and nafaqa; the legal discourse in Islamic marriage contracts is that the husband pays the muqaddam (immediate) mahr at the time of signing the contract. (For more on the mahr agreement, see The Mahr Provision in Islamic Marriage Contracts at http://www.gabrielsawma.blogspot.com. The nafaqa is the amount of money spent by the husband to support his wife on food, clothing and shelter; it is triggered when the marriage is consummated.
A woman, who is married according to the Islamic Shari’a, can refuse to consummate the marriage with her husband if he failed to pay the mahr. But once the mahr issue is settled, she has to be available to her husband. If she continues to refuse him, the husband will be absolved of any responsibility for providing the nafaqa.
A woman is entitled to receive the nafaqa even if she gets mentally or physically ill. The nafaqa is obligatory on the husband in the case he becomes ill. No nafaqa is due if the husband repudiates his wife because she has been guilty of apostasy. Changing once religion from Islam to any other religion is considered a blasphemy and subject to strict penalty ultimating to death.
The husband may stop providing for nafaqa if the wife commits nushuz, a term used to designate the rebellion of a woman against her husband, by disobeying him and causing him anger.
If the husband is traveling and could not be reached, the wife who has been granted nafaqa by the qadi (religious judge), is authorized to borrow money equivalent to the amount assigned, and the absent husband is responsible for paying off the debt once he became available.
If the husband should die, the nafaqa support will be terminated, except for a pregnant woman who could still claim it, through to delivery of her child, from her husband’s estate. She must request the nafaqa during the period of the marriage or the ‘iddah.
Muslim couples may name an amount of the nafaqa support as part of the marriage contract, although such a clause is not required by the Islamic Shari’a; but once made, it can be enforced by the religious court.
Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com Email: gabygms@gmail.com
In recent years, many Islamic divorce cases were litigated in the United States family courts. The issue of mahr in the Islamic marriage contracts became subject of debate among lawyers and scholars. This article sheds lights on the Islamic mahr in USA.
Mahr is the amount of money, or its equivalent, paid by the husband to his future wife. Contrary to the popular notion that mahr is dowry, it is not. A dowry is what the wife contributes to her marriage while mahr is an obligation on the husband to pay his future wife. Others call the mahr a ‘gift’ given by the husband; it is not a ‘gift’ either, because it is an obligation mandated by the Qur’an. The Qur’an calls it sadaq; it reads: “Wa aatoo ann-nissaa’ saduqaatihinna nihlatan” (and give the women their mahr with a good heart.) Qur’an 4: 4 The mahr is an obligation required by Islamic law from the husband to be paid to his future wife. Thus, it must be stipulated in the Islamic marriage contract. If no stipulation is recorded in the contract, the qadi (or religious judge) will assign the amount of mahr. The amount of mahr becomes a property of the wife alone. Muslim schools of jurisprudence in the Sunni traditions, differ on the definition of the mahr. The Hanafi School defines mahr as “the added money given by the husband to his [future] wife for iza’a ihtibassiha, keep her in his house (see al-Sarkassi, the Mabssut, vol. 5, pp 62-63, Arabic Version). Another author of the Hanafi School defines the mahr as “the money, which is obligatory on the husband in ikd al-nikah (the marriage contract) for manafi’ al-bid’ (sexual pleasure). (See ibn al-Hamam, Sharih Fath al-Qadeer, vol. 3, p. 304, Arabic version). The Hanbali School of jurisprudence defines mahr as “the money paid by the husband for the purpose of nikah (marriage). (See ibn Kadamah, Al-Mughni, vol. 6, p. 679, Arabic version). The Malike and Shafi’i Schools defines the mahr as “the money due to the future wife in return for [the husband’s] haqq al-isstimta’ (sexual pleasure) in the marriage contract”. (See al-Hattab Muhammad bin Abdel Rahman al-Mughrabi, Mawahib al-Jalil li-Sharh Mukhtassar Khalil, vol. 5, p. 172-Maliki Jurisprudence). For Shafi’i School see al-Nawawi, Kitab al-Majmu’, vol. 18 p. 605). All these references are cited by Sheikh Mahmud Muhammad al-Sheikh, Al-Mahr fi Al-Islam bayna al-madi wal-hadir, published by al-Maktaba al-Assriyya liltibaa’a wal nashr, Beirut, Lebanon, 2003, Arabic version. The Maliki and Shafi’i Schools of jurisprudence regard the mahr as “the money paid for the future wife in return for sexual pleasure is an integral part of the Islamic marriage contract and its source is prescribed in the Qur’an. Sura al-Nissaa reads the following: “Fa ma isstamta’tum bihi minhunn fa aatoohunna ujoorahunna” (So for that pleasure which you have enjoyed from them, give them their prescribed compensation). Qur’an 4: 25 Numerous Hadith (sayings attributed to the Prophet of Islam) provisions refer to the obligatory nature of the mahr in Islamic marriage contracts. (See for example Ans bin Malik bin Damdam; Al-Bukhari, Sa’ad bin al-Rabi’ bin Khazraj. They are all cited by Al-Sheikh Mahmud Muhammad al-Sheik, Al-mahr.) Traditionally, Islamic marriage contracts lists two types of mahr; one is called muqaddam (upfront, or immediate at the signing of the contract), or mu’akhar (deferred to be paid in the event of divorce or death of the husband.)
The Amount of Mahr Neither the Qur’an, nor the Hadith stipulates the maximum amount of mahr to be paid by the husband. As to the lower amount of mahr, Islamic scholars differed on this. The Hanafi School regarded the lower amount to be not less than ten Dirahms (around ten US Dollars). The Maliki School considers the lower mahr to be not less than three Dirhams (or three US Dollars.) The Hanbali and Shafi’i Schools do not put a limit to the lower amount of mahr; both schools agree that the lower amount could be “a ring made out of iron” or “pair of shoes”, or a few ounces of “wheat, or dates”, or “teaching the future wife verses from the Qur’an”. In all of these, the future wife has to express her acceptance to whatever the amount is. Modern Islamic marriage contracts are pre-printed forms, filled by the ‘imam/qadi’ (religious leader or religious judge). The form has empty space to fill the name and address of the husband and the name and address of the bride. The contract must include the names and addresses of two adult male witnesses. And the place and address where the marriage contract is signed Both parties to the marriage contract must express their consent to the marriage, verbally and in writing. This is done through a formal proposal of ijab (an offer to marry) and qubul (an acceptance to marry), in the presence of a wali, a male guardian who looks out for the best interest of the bride. It must include the amount of muqaddam/mu’ajjal mahr, and the amount of the mu’akhar (deferred). After the contract is signed, the couple is recognized as legally married and enjoy the rights and obligations stipulated by the Islamic Shari’a (law). The marriage contract may be solemnized in a mosque and usually signed in triplicate: one copy should be given to the bride, one to the bridegroom, and the third must remain deposited with the Registrar, imam/qadi (religious leader or religious judge).
The Absence of Mahr Provision in the Marriage Contract If the marriage does not include a provision for the mahr, the contract is considered to be legal. The three Schools of jurisprudence: Hanafi, Shafi’i and Hanbali recognize the fact that the mahr provision is not a main factor, nor a condition for the marriage. These three Schools believe that the mahr is an obligation on the husband regardless of whether it is written in the marriage contract or not (see Mahmud Muhammad al-Sheikh, al-Mahr, published by al-Maktabah al-Assriyya, Beirut, 2003, Arabic version). Accordingly, if the marriage contract is signed by the parties without a provision of the mahr, or if they assign a mahr, which is considered to be illegal under Islamic Shari’a, or if the parties agree not to include a mahr provision, in all these cases the conditions are null, the contract is legal and the husband has to pay a mahr equivalent to a mahr given to another women of the same status as that of his wife. The Maliki School rejected this interpretation and considered the mahr provision in the contract, necessary. However, this School regards such a marriage to be legal if it was consummated. If the marriage was not consummated, then the marriage is mafsookh (a reason for separation); if he divorces his wife without any agreement on the mahr issue, then he has to pay her mut’ah (money paid to her in return for the sexual pleasure he had with her). But if he dies before any agreement reached between the couple, then the wife is entitled to inherit her share from his estate. Finally, the mahr must be legal. Thus, alcoholic beverages and the meat of the swine or pig cannot be given to the future wife as mahr because, under Islamic law, it is unlawful to transact these items. If such illegal items were listed in the marriage contract, the imam/qadi may substitute those by legal items.
Should there be any questions regarding this topic or any topic that deals with Islamic Shari'a in the United States or in Europe, please email the author at gabrielsawma@yahoo.com or gabygms@gmail.com
Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com Email: gabygms@gmail.com
Many Indian nationals had their marriage in India and domicile in the United States. They travel back to India for the purpose of obtaining divorce certificates. The issue of jurisdiction becomes important factor for the recognition of their foreign divorce judgments in the United States. This article analyzes this issue.
In most circumstances, a judgment of divorce of a foreign national court has no independent force outside the forum’s territory. Thus courts will enforce their own judgments within their own national boundary.
As a general rule, a judgment of a court of one nation may be recognized and enforced in another nation if the courts of that nation are willing to accept the decree of the nation where the judgment was issued.
Recognition and enforcement of foreign judgments occur when a U.S. court relies upon foreign divorce ruling, on the ground that it has been previously litigated abroad. Thus recognition of foreign divorce judgments is akin to the domestic U.S. doctrines of res judicat (or claim preclusion, prevents parties of a claim from re-litigating the same claim), and collateral estoppel (or preclusion which extends the preclusive effort of a judgment to re-litigation of issues that were decided in a prior action.) The enforcement of foreign divorce judgment is typically sought by a plaintiff who has obtained a judgment in a foreign country.
In the United States, the judgments of one state’s court are routinely enforced in another state. Article IV, Sec. 1 of the U.S. Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other state.” Congress has implemented the full faith and credit clause by statutory enactment providing that judicial proceedings “shall have the same full faith and credit in every court within the United States…as they have by law or usage in the courts of such State…from which they are taken.” (28 U.S.C. Sec. 1738. 1982).
The Doctrine of Comity
Presently, in the United States, there is no federal standard governing the enforcement of divorce judgments rendered by foreign courts. Unlike state judgments, foreign judgments are not covered by the full faith and credit clause of the U.S. Constitution and other statutes. Nor are there any federal statutes to enforce foreign divorce judgments in U.S. courts. The United States is not party to any international agreement regarding the mutual recognition of divorce judgments.
With the absence of a treaty or statute upon this subject, the duty rests upon the judicial tribunals to determine the rights of the parties in divorce suits brought before them. In doing this, the courts obtain such aid for their judicial decision, from the works of jurists, commentators and academic scholars, and from the acts of civilized nations. Thus U.S. courts may give recognition to the judgments of a foreign nation as a matter of “comity.”
The “doctrine of comity,” in the legal sense, is not an absolute obligation; it is a courtesy, where the court may recognize a foreign court order, but is not compelled to do so. This extension or denial of comity is discretionary to the U.S. court
Indian nationals domiciled in the United States, initiate divorce in India. Many of them have dual US-Indian nationalities. They travel to India for the sole purpose of obtaining divorce judgments from Indian courts. Then they travel back to the United States and serve the other spouses with divorce papers. Do the U.S. courts extend comity and recognize the enforceability of those divorce judgments? Or do the U.S. courts assert their own jurisdiction on the divorce cases? The key concepts in this “conflict of law” in the United States are two: subject matter jurisdiction (or competence), and personal jurisdiction.
For a foreign court to have authority to adjudicate a dispute involving divorce, it must have jurisdiction over divorce issues. A divorce can be granted only in a court designated to hear matrimonial cases. It is well settled that U.S. courts will not enforce foreign judgments unless foreign courts possessed “competence” or subject matter jurisdiction under foreign law. Consequently, lack of subject matter jurisdiction is a basis for non-recognition.
Personal jurisdiction, known also as “personam” is the power of a court “to hear and determine a lawsuit involving a defendant by virtue of the defendant having some contact with the place where the court is located.” (See http://legal-dictionary.thefreedictionay.com/Personal-Jurisdiction). Personal jurisdiction is a basic pre-requisite for the enforcement of a foreign judgment. The foreign court issuing the judgment must possess personal jurisdiction and authority over persons within its territory. This includes: domiciliary, citizenship, place of marriage, etc.
U.S. courts generally, are able to decide divorce cases based on at least one of the spouses being domiciled or maintaining a habitual residence within the geographic jurisdiction of the court. Domicile is defined as physical presence and an intention to live permanently in a location. Such intentions are determined by where a person is registered to vote, filing state tax return, state issued driving license, which school the children go to, does he or she join a gym in the area of residence and where the home is located, etc.
Divorce cases involving multinational jurisdictions are complex. Foreign divorces may involve immigration matters, child custody, division of marital assets and support orders, which have their own specialized enforcement issues. In most cases attorneys and litigants consult with experts in foreign laws before determination.
Gabriel Sawma is Professor of Middle Constitutional Law, Islamic Shari’a, and Arabic. He is considered an authority on Private International Law involving foreign divorce issues, Islamic banking and finance. Admitted to the Lebanese Bar Association in 1970; Associate Member of the New York State Bar and American Bar Associations. Editor of International Law Website: http://www.gabrielsawma.blogspot.com ; http://www.hindudivorceinuscourts.com
U.S. Courts do not apply Islamic Shari'a law because it violates the Establishment Clause set in the United States Constitution; American Courts do apply foreign law in certain cases involving international principle known as "conflict of Laws," or "Private International Law." This is referred to in U.S. courts as the"doctrine of comity".
In the area of Private International Law, Comity is a courtesy, amity, and reciprocity by U.S. courts towards court decision issued in other nations. Such a consideration by U.S. courts does not entail an obligation to agree with the rulings of foreign judgments. There is therefore a distinction between the doctrine of comity and law.
Public International Law can become part of the national law when the country has its signature on that law, Private international Law, however, does not have the same level of recognition by U.S. Courts. The issue of comity is raised in Islamic divorce cases when a person who resides legally in the United States travels to a foreign country and obtain a certificate of divorce from a religious court.
The intent is to obtain an instant divorce by pronouncing triple talaq (divorcing his wife three times in a few minutes.) Such an action leaves the wife with nothing more than a nominal deferred mahr, and takes advantage of the child custody, which discriminates against the women and to label the wife as bad Muslim.
The man then returns to the United States and serves his wife with divorce papers demanding the implementation of the divorce according to the Islamic Shari'a, claiming that the "doctrine of comity" applies to his case.
American courts do not apply Islamic laws because it violates the Establishment Clause of the United States Constitution; they apply foreign law at their discretion. To determine whether to apply a foreign law, U.S. courts turn to Private International Law, including the “doctrine of comity.” Thus the application of the principle of comity is not mandatory, but is rather a matter of custom. They may deny the application of comity if the judges deem the foreign laws is “repugnant” to U.S. principle of law.
Generally, a judgment of divorce for example issued in a foreign country is recognized in the U.S. on the basis of comity, provided both parties to the divorce received adequate notice, i.e. service of process and, generally, provided one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the litigants, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country, and those of other countries, an no prejudice towards either party and should not violate a strong U.S. principle of law, and the parties were present in court.
An Islamic triple talaq differs substantially with respect to property division. Under Islamic Shari’a, wives may be entitled to a deferred mahr, which is, in most cases, much less than what U.S. courts order; above all, U.S. courts will not accept an Islamic divorce certificate obtained in a foreign country if the cause of action on which the divorce is based is “repugnant” to the public policy of the State in which the case is litigated.
Gabriel Sawma is Professor of Middle East Constitutional Law and Islamic Shari’a. He is an expert on Islamic marriage contracts and Islamic divorce. Editor of an International Law website: http://www.gabrielsawma.blogspot.com. Author of “The Qur’an: Misinterpreted, Mistranslated and Misread. The Aramaic Language of the Qur’an.” http://www.syriacaramaicquran.com. Author of an upcoming book on Islamic Divorce in US Courts. Email: gabrielsawma@yahoo.com; gabygms@gmail.com; tel. (609) 915-2237.
In 2004 a crash of Blackwater Flight 61 occurred in the rugged mountains of central Afghanistan, killing three soldiers and three-man crew. The widows of the soldiers sued Presidential Airways, Blackwater’s sister company, which was under contract with the U.S. military to fly cargo and personnel around Afghanistan.
Lawyers for the company has asked a federal court to decide the case using provisions from the Islamic Shari’a, not the U.S. laws. They argue that the Shari’a “does not hold a company responsible for the actions of employees performed within the course of their work.” http://www.newsobserver.com/917/story/1113022.html
The Vicarious Liability
In the American legal system the term ‘vicarious liability’ is used to indicate the responsibility of the employer for the acts of his employee provided that the employee is doing his job within the scope of his employment. Thus if a driver of a company car hits someone on the road, during the course of his employment, he and the company may be liable for the damages. To establish the employee's conduct was within the scope of employment, certain conditions must be met, these are: (1) the conduct must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform. In this example, if the driver is driving the same car to see his girlfriend without authorization of his employer and an accident occurs during this trip, he alone, not the employer may be responsible for the accident.
In the Islamic Shari’a (law), the closest example that may shed light on this subject is the mutual help in relation to the custom of blood money (diyya) under the Arab tribal custom. This is a compensation paid to the heirs of a victim of murder.
According to Islamic Shari’a, the penalty applied for causing death to someone is based on the principle of an eye for an eye and a nose for a nose.However, the hadith, a second source of shari’a, allows the payment of diyya in terms of cash to the heirs of the victim, regardless as to whether the crime was pre-meditated or not.
In the majority of cases, when the person cannot afford to pay the diyya, his family and clan come up with the money accepted by the family of the victim. This tradition, which has been in existence before the rise of Islam, has been endorsed by the four Islamic schools of thought in the Sunni sect of Islam: Shafi’i, Maliki, Hanafi and Hanbali.
The principle of compensation and group responsibility was accepted by the Prophet of Islam. The system of collective responsibility was practiced in Medina in what is known as "The Constitution of The Medina". It occurred after the Hijra (the migration of the Prophet from Mecca to Medina in 622) and was recorded by the biographer of the Prohet, Ibn Ishaq, who authored the first book on the life of Muhammad; his book is titled: "Al-Sira al-Nabawiyya".
The amount of diyya in the Sunni traditions depends on the gender and religion of the victim. According to the Shafi’i and Hanafi schools, the family of a murdered Muslim woman gets half the diyya given to the family of a murdered Muslim man. If the murdered person is Jew or Christian, the family gets 1/3 of the amount given to the family of a murdered Muslim man according to the Shafi’i school. The Maliki states that the families of a murdered woman, or murdered Jew or murdered Christian, get half of the diyya paid to the family of a murdered Muslim man. The Hanbali differentiate between pre-meditated and un-premeditated murder. If the killing is pre-meditated committed by a Muslim against Christian or Jew, the families of the victims get a diyya equivalent to that given to the family of a Muslim victim; but if the killing of Christian or Jew by a Muslim is un-premeditated, then the families get half of the diyya given to a Muslim family.
In Islamic countries, the vicarious liability applies to the insurance company to pay for the damages incurred to the insured. Insurance is regarded as a system of mutual help in relation to the custom of blood money that is practiced in the Muslim world.
Jurisdiction and Application of Law
As far as the jurisdiction of US courts is concerned, the following principles have to be taken into consideration: (1) American courts do not recognize the Islamic law; judging acase in an American court on a religious law is unconstitutional. The courts do recognize however the law that is tied to specific nation, such as the laws of Saudi Arabia and Iran; American judges make every effort to understand how the principles of Islamic Shari’a relate to the law of the nations involved in the case. (2) To have a better understanding of the Islamic Shari’a, the judges usually hold evidentiary hearing eliciting expert testimony from both sides.
In this case, the legal team for the defendant requests the Federal Court in Florida to apply the Islamic law of Afghanistan. They argue the lawsuit “is governed by the law of Afghanistan…”
Lawyers familiar with Middle East legal systems know that Islamic Shari’a is applied in matters related to marriage, divorce, inheritance and custody of children. Even countries which adhere strictly to Islamic law, have modernized their civil codes.
Afghanistan adheres strictly to the Hanafi madhab (school of thought in Sunni Islam), its 1976 Civil Law does not require the application of Islamic shari’a in a matter like this; to the contrary, the Civil Law of Afghanistan asserts that the obligations stemming from contracts “must adhere to the laws of the state where the contract was signed”. Article 27 reads the following:
"in regard to obligations arising from contracts, the law of the state where parties to the contract reside, shall be applicable, in case they do not reside in the same country, the law of the state where the contract is completed, shall be applicable provided the parties to the contract have not agreed on application of specific law, or evidence do not point to the fact that the parties to the contract did not think of application of another law.”
As to the conditions related to the "form of contracts", article 28 of the Civil Law states the following:
"Provisions of the law of the state where the contract is completed shall be applicable.”
Subsequently, if the contract was signed in the United States, then it is obvious that that jurisdiction is here in the US and US laws are applicable.
Gabriel Sawma, a lawyer dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari'a law. Professor of Middle East Constitutional Law, Islamic Shari'a, Arabic and Aramaic languages. Expert witness on Islamic marriage contracts, including the mahr; expert witness on U.S.-Middle East commercial contracts. Member of the Beirut Bar Association in Lebanon; The New York State Bar Association; Associate member of the American Bar Association. Author of an upcoming book on "Islamic marriage Contracts in U.S. Courts and the Mahr." Author of an upcoming book on conflicts in U.S. Middle East Commercial Contracts. Editor of International Law website: http://www.gabrielsawma.blogspot.com, Email: gabrielsawma@yahoo.com
Gabriel Sawma, Lebanese attorney, born in Lebanon and lawyer with Middle East background, dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari'a law.
Professor of Middle East Constitutional Law,Islamic Law, Arabic and Arab Culture and Civilization at Fairleigh Dickinson University, NJ. Professor of Islamic Finance at the University of Liverpool, UK.
Expert consultant on Middle East affairs, terrorism and authority on Islamic Shari'a, including Islamic marriage contracts, the mahr, and Islamic divorce in USA, http://www.islamicdivorceinusa.com
Expert consultant on Islamic banking and finance.
Expert consultant on Islamic inheritance and child custody.
Admitted to the Lebanese Bar Association of Beirut. Associate Member of The New York State Bar Association, and the American Bar Associations. Wrote extensively on Islamic and Hindu divorces in USA.
Visit our website at http://www.islamicdivorceinusa.com
Email: gabrielsawma@yahoo.com
Tel: 609-915-2237
The husband has the right to divorce his wife by simply stating: 'I divorce you, I divorce you, I divorce you.' 
