Sunday, November 29, 2020

 

Parental Abduction of Children in Saudi Arabia

By Professor Gabriel Sawma

November 29, 2020

 

INTRODUCTION

Saudi Arabia is one of the most influential countries in the Islamic world; it is the world’s largest exporter of petroleum and oil products and is one of the richest countries in the in its oil reserve. Saudi Arabia is also the custodian of the two holy cities of Meccah and Madinah. The Prophet Muhammad was born in Meccah in 570 A.D., and moved at a later age to Madinah, in which he established the Islamic faith. The main sources of Islam are the Qur’an, which is composed of the revelations that descended on the Prophet during his ministry, and the Hadeeth or Sunnah, which contain the sayings and deeds of the Prophet. Saudi Arabia is a monarchy headed by the Al Saudi royal family, with a council of ministers.

 

SOURCE OF FMILY LAW IN SAUDI ARABIA

The most important constitutional document is Saudi Arabia is known as The Basic System (or Basic Law) which took effect in 1992. It specifically states that the Qur’an and the Sunnah of the Prophet Muhammad are the Kingdom’s constitution. Article 7 of the Basic System reaffirms Islamic Shari’ah (i.e., Islamic Religious Law) as the foundation of the Kingdom, stating that the government draws its authority from the Qur’an and the Sunnah, and that these two sources govern all administrative regulations of the state. It emphasizes that the role of the state and objectives is to protect the principles of Islam and to enforce its Shari’a. Th Basic System is guided by Islamic law when defining the nature, the objectives, and the responsibilities of the State.

Being the center of Islam, Saudi Arabia embraces the legal, economic, and social percepts of Islam, which acts as a major force in determining the institutional norms, patterns and structures of Saudi society. As such, Islamic faith is not only a religious ideology, but a whole comprehensive social system embracing detailed prescriptions for the entire way of life, and provides guidance to Muslims in all social, political, commercial and economic affairs. It also governs the law of family relations including marriage, divorce, and custody of the children.

Article 1 of the Basic System reads the following: “The Kingdom of Saudi Arabia is a sovereign Arab Islamic State. Its religion is Islam. Its constitution is Almighty God's Book, The Holy Qur'an, and the Sunna (Traditions) of the Prophet (PBUH). Arabic is the language of the Kingdom. The City of Riyadh is the capital.

This means laws relating to marriage, divorce, custody of the children and inheritance are not codified; they are governed by Islamic law (shari’a law). Thus, polygamy is permitted for men limited to four wives at any one time. There is no minimum age for marriage and the Grand Mufti reportedly said in 2009 that “girls of the age of 10 or 12 were marriageable.” Saudi mufti okays marriage for 10 year old girls (alarabiya.net) 

 

Men have unilateral right to divorce their wives (Arabic talaq) without judicial interference. The divorce takes effect from the time a husband pronounces the divorce. A woman can only obtain divorce with the consent of the husband or obtain a judicial divorce through Shari’a court.

When divorce occurs, the father has custody of his sons at the age of nine and daughter at the age of seven. The right of a husband to marry up to four wives, combined with his ability to divorce his wife at anytime without cause, can translate to unlimited polygamy.

 

SAUDI ARABIA IS NOT PARTY TO THE HAGUE CONVENTION

The Kingdom of Saudi Arabia is not party to the Hague Convention on the Civil Aspects of International Child Abduction, nor any international or bilateral treaties in force between Saudi Arabia and the United States dealing with international parental child abduction. The Hague Convention treaty puts into place general guidelines regarding how to handle international child abduction and international custody disputes. Accordingly, there are no legal standards governing the return of kidnapped children from Saudi Arabia. American women marrying Saudi nationals should bear in mind that the children born out of the marriage are considered Saudi citizens by Saudi Arabia, not U.S. citizens. This means the Shari’a court in Saudi Arabia will grant custody of the children to the father in the event of divorce.

American women married to Saudi citizens planning to travel with their children to Saudi Arabia should bear in mind that the husband may not allow the return of the children to USA.

The Saudi husband ask his wife to allow the children to travel to Saudi Arabia for a short vacation. After the children arrived, the father refused to return the children to the U.S. The wife may lose contact with the children after that. The father may refuse all requests from U.S. Embassy in Saudi Arabia for welfare and whereabouts visits.

 

SAUDI COURTS GENERALLY DO NOT AWARD CUSTODY OF CHILDREN TO NON-SAUDI WOMEN

An American woman married to a Saudi citizen will not be able to obtain a Saudi court judgment of custody of her children unless she resides in Saudi Arabia, or the father is not Muslim. All Saudi citizens are considered to be Muslims.

 

This author represented numerous clients of various Middle East nationalities including Saudi Arabia. In 2015, I testified in a court in Pennsylvania on behalf of two girls born of an American mother and Saudi father. The court agreed with our testimony and allowed the girls to stay with their mother in the U.S.

In 2016, a desperate American mother of three children, who were residing with their father in Saudi Arabia, were ordered by a court in New Jersey to send the children to USA after my testimony was heard before the judge.

In 2012, I wrote an affidavit to the Supreme Court of Westchester County in New York for recognition of a divorce and custody order from Abu Dhabi. The Judge recognized the foreign court order and granted custody of the children to the mother.

In all the cases that I was privileged to testify before the court, the credit goes to the left behind parent who never abandoned the fight to regain their children no matter what the odds were.

 

 

DISCLAIMERWhile every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East Background, and a recognized authority on Islamic law of marriage, divorce, and custody of children, Professor of Middle East Constitutional Law and Islamic Sharia (law), and Expert Consultant on Islamic divorce in U.S. Courts. Admitted to the Lebanese Bar Association. Former Associate Member of the New York State Bar Association, and former Associate Member of the American Bar Association.

Professor Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe, and the Middle East. He wrote Affidavits and legal opinions to State Courts, Immigration authorities throughout the United States.

Travelled extensively to Saudi Arabia, the Arabian Gulf region, and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad.

Prof. Sawma speaks, reads and writes, Arabic, English, French and a few other Semitic languages spoken in the Middle East.

Interviewed by the following news organizations;

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN:http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

Professor of Islamic Finance at the University of Liverpool (2012)

CONTACT INFORMATION

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

VISIT OUR WEBSITES AT THE FOLLOWING LINKS:

http://www.gabrielsawma.blogspot.com

 

Wednesday, June 07, 2017

CUSTODY OF CHILDREN IN KUWAITI LAW




By

Professor Gabriel Sawma



GEOGRAPHY AND HISTORY

Kuwait is located on the northeastern part of the Arabian Peninsula, known as Arabia, and on the northwestern head of the Persian Gulf. The country is rich, and is estimated to have the fifth largest petroleum reserves in the world. The country became independent on June 19, 1961 and is ruled by the Sabah family, who has been ruling this country for two hundred years.

On August 2, 1990, Iraq, led by Saddam Hussein, invaded and annexed Kuwait. This led the United States, under President George H. W. Bush, who created a coalition of other nations to launch Operation Desert Storm to liberate Kuwait. The war lasted until February 28, 1991, and resulted in a convincing victory for the U.S and its coalition.

Kuwait is a constitutional hereditary monarchy with its cabinet (Council of Ministers) appointed by the Emir, and a National Assembly that is elected every five years. The Parliament serves as a legislative body with the power to overturn the decrees issued by the Emir, who is head of state. The constitution of Kuwait was adopted in 1962, and the parliament is elected every four years.

Islam is Kuwait’s religion. Roughly 70% of the state’s inhabitants are Sunni, while 30% are Shi’as. More than fifty percent of the residents of Kuwait are foreigners, who are able to establish their own schools and practice their religious faiths.

On May 16, 1999, the emir of Kuwait, Shaikh Jabir al-Sabah, issued a decree to grant Kuwait women the right to vote and to run for office “in recognition of their vital roles in building Kuwaiti society and in return for the great sacrifices they had made during various challenges the country faced.”

In 1994, Kuwait signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Upon ratification, it incorporated reservations on a number of provisions, including one giving equal rights to men and women with respect to guardianship and adoption of children, saying that they conflicted with Islamic law. Kuwait’s personal status law, as we shall see below, is theoretically based on Islamic Shari’a Law.



PERSONAL STATUS LAW OF KUWAIT (PSL)

Article 2 of the Constitution of Kuwait states that the religion of the State is Islam, and that the Islamic Shari’a shall be a main source of legislation. The personal status law of Kuwait, number 51, 1984, is based on Islamic Shari’a, in accordance with the Maliki school of jurisprudence. The PSL legitimizes male protection and control over women. In Kuwait, a man may divorce his wife without her consent and is only responsible for her maintenance during the three-month period of iddah.

Article 74 of this law requires the husband to support his wife. In return for her right to nafaqa (maintenance), the wife must obey her husband and rear the children. Article 88 of PSL, however, does not give the husband an absolute right to ta’a (obedience). If a wife feels that she can no longer live with her husband and her his house, a judge cannot force her to obey her husband’s demand that she returns. Under such circumstances, the wife will lose her right to maintenance and the court will support that.

Article 102 of the PSL stipulates that a husband may divorce his wife without her consent and is only responsible for her maintenance during the three-month period of iddah during which a woman is secluded in order to determine whether she is pregnant to ensure that the husband is the only father of the child. The husband, however, is required to provide her with an allowance for any children in her custody. In addition, under Article 165, if a woman is divorced without her consent, her former husband is required to pay her maintenance for one year as a compensation. This is known as nafaqat al-mut’ah.



CUSTODY OF THE CHILDREN (HADANAH)

The Personal Status of Kuwait designates fathers as the legal guardians of their children. According to Article 194, mothers may have physical custody of the children, and in the event of divorce they retain custody of male children until maturity, which is 15 years of age, and female children until they marry, but the authority over their children is significantly less than their ex-husband’s. However, the mother loses custody if she remarries.

Religious doctrines and local tradition requires that parental control over the children is left unchallenged. This means that the government does not interfere in this area.  Rather, parental authority is limitless, almost absolute. A husband may forbid his wife or daughter to work outside the home. There are no constitutional guarantees for women to employment.

Article 190 of the PSL list the qualifications of the person who has custody of the children, they include: maturity, reasonable, faithfulness, and ability to take care of the child, and keep the child healthy and good manners. Additionally, Article 191 also requires that the mother who has custody of a female child, that she would lose her custody right if she remarries a man being a relative of the child in a prohibited degree. i.e., a relative who is prohibited from marrying the female child, “if the marriage is consummated.” Article 191(b) also indicates that if the next in line for custody keeps silent for a year, without good excuse, after knowing of the consummation of a disqualifying marriage, then they lose the right to claim that custody, adding that they cannot claim ignorance of this provision as an excuse.

As to acquiring citizenship in Kuwait, Art. 2 of the Kuwaiti Nationality Law states that “Any person born in, or outside Kuwait, whose father is a Kuwaiti national shall be a Kuwaiti national himself.” The nationality of the father is therefore, the determining factor for granting a Kuwaiti citizenship to the children. In addition, Article 8 of the Kuwaiti nationality law allows the foreign wife of a Kuwaiti citizen to acquire the Kuwaiti nationality after completing 15 year of marriage.



DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.



Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

·         Professor of Middle East Constitutional and Islamic law,

·         Expert Consultant on Islamic divorce in US Courts and Canada,

·         Expert Consultant on Hindu divorce in U.S. courts,

·         Expert Consultant on Iranian Shi’a divorce in USA,

·         Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries; 

Speaks, reads and writes several languages including Arabic, English, French and others.

Interviewed by:







Contact Information:







Tel. (609) 915-2237



For more information on our field of expertise, please visit our website at this link:

Wednesday, November 02, 2016

RECOGNTITION OF ABU DHABI CUSTODY ORDER OF CHILDREN IN NEW YORK


By
Professor Gabriel Sawma
Case Study: S.B. v. W.A.

In 2012, I was asked to write an opinion to the Supreme Court of Westchester County in New York on behalf of S.B. who obtained a divorce decree from Abu Dhabi, UAE. The divorce decree granted the wife custody of the children and ordered the husband to pay his wife, a mahr of $250,000.00, and legal fees. 

The New York’s Supreme Court of Westchester County took a judicial notice of the constitution and laws of the United Arab Emirates (UAE) for purposes of determining whether entry of judgment of divorce and order of child custody entered in Abu Dhabi would be recognized and registered in the state of New York. (See procedural and background of the case S.B. v. W.A. at: http://caselaw.findlaw.com/ny-supreme-court/1616620.html

Background
Both S.B. and W.A. were married on May, 1998 in a civil ceremony in the City, County, and State of New York. Following that, the parties married in an Islamic ceremony in compliance with Islamic law, also in the State of New York. They both signed a marriage contract, in which the husband promised to pay his future wife an advance mahr of $5,000.00 and, in the event of divorce, or death of the husband, a deferred mahr of $250,000.00. Two children were born of the marriage, a girl, born on July 12, 2001, and a boy, born on August 3, 2004. Both children were born in the United States.

In 2006, the defendant (husband) received an employment in the emirate of Abu Dhabi (UAE), and decided to move there. The plaintiff (wife) and children remained in the U.S. until August 2007, when they joined the plaintiff in Abu Dhabi.

Domestic Violence in Abu Dhabi
While in Abu Dhabi, the plaintiff initiated criminal proceedings against the defendant following an incident of domestic violence that occurred on January 28, 2009. After that, the marital relation soured and the wife obtained a divorce judgment from the Court of First Instance in Abu Dhabi, along with an order awarding her custody of the children and other financial relief. The divorce and custody order was affirmed on appeal to the Court of Appeal and to the Court of Cassation, which is the highest court in Abu Dhabi.

The Plaintiff Seeks Recognition of the Divorce Judgment Obtained from Abu Dhabi
In support of her motion, plaintiff submitted certified copies of the Abu Dhabi orders, judgments, and decrees, which were translated from Arabic to English by a legal translator duly licensed by the Ministry of Justice in the UAE, who attested to the correctness of the translation.

She also submitted an affidavit from this author, as expert consultant on Islamic divorce in the United States and Middle East laws, including the legal structure of the courts of the UAE.

In my affidavit, I explained the structure of the judiciary in the UAE, the legal proceedings between the parties, and the judgments and decrees rendered by the Abu Dhabi courts.

Plaintiff also submitted an affidavit from an attorney admitted to practice law in Abu Dhabi, who represented the plaintiff in connection with post-matrimonial issues. In his affidavit, he explains the legal proceedings in Abu Dhabi.

Divorce Proceedings in Abu Dhabi
On July 1, 2009, the plaintiff filed a petition for divorce in the Court of First Instance under Article 117 of the Personal Status Law of the UAE. Hearings on the divorce were held on October 13, November 8, and December 14, 2009. Both parties participated in the proceedings, and both were represented by counsel.

On December 27, 2009, in the presence of both parties, the Court of First Instance issued a judgment on the merits, granting the plaintiff a divorce from the defendant; directing the defendant to pay the plaintiff the deferred mahr of $250,000.00; directing the defendant to pay alimony for the children, including food, clothing and transportation allowances; directing the defendant to pay monthly alimony to the plaintiff. The Abu Dhabi Court also awarded the plaintiff custody of the children, and directed the defendant to pay all relevant fees and expenses.

The decision of the Court of First Instance was appealed to the Court of Appeal, which rendered a decision on April 4, 2010, and the Court of Cassation, which rendered decision on November 8, 2010. Both courts affirmed the judgment with minor modification related to the iddah Alimony.

Jurisdiction of the Abu Dhabi Courts
The defendant claimed that the parties are deemed married under the laws of New York, as the Abu Dhabi courts entered a divorce judgment based on the religious marriage, applying the laws of the Islamic Sharia, and no divorce action has been filed based upon the civil marriage. He claimed that the Abu Dhabi divorce was a religious judgment of divorce, not a civil judgment of divorce, and therefore, the New York courts should not afford it comity.

The question before the New York’s Westchester Supreme Court (Judge Francesca E. Connolly) was whether the Court of Abu Dhabi had jurisdiction over the case. The Supreme Court held that:

“Both parties were residing in Abu Dhabi when the plaintiff instituted the divorce proceedings. The divorce decree was obtained after a trial and tow appeals, including an appeal to the highest court in Abu Dhabi, the Court of Cassation, that rendered a final and binding judgment of divorce. Both parties were represented by counsel, participated in the divorce proceedings and had a full opportunity to contest jurisdiction and all other issues. There is no question that the foreign court had jurisdiction over the parties at the time the divorce judgment was issued and that it was a final binding order, thereby precluding the defendant from now collaterally attacking its validity or relitigating any of its provisions (See Borenstein v. Borenstein, 151 Misc. 160, 270 N.Y.S. 688 [Sup. Vt. N.Y. Co, 1934]; Greschler v. Greschler, 51 N.Y.2d at 376, 434 N.Y.S.2d 194, 414 N.E.2d 694).
“A court has the inherent power pursuant to the principles of comity to recognize and enforce a foreign judgment of divorce “unless there is some defect of jurisdiction shown to be against the public policy of the domestic state” (48A N.Y. Jur. 2d, Domestic Relations at 2809). “[A] party who has properly appeared in a foreign action is ordinarily precluded from attacking the resulting judgment by bringing a collateral New York proceeding …. Only where there has been a showing that the foreign judgment was fraudulently obtained … or that recognition of the judgment would conflict seriously with a compelling public policy … cab a collateral attack be entertained” (Robinson v. Robinson, 120 A.D.2d 45, 415-16, 501 N.Y.S.2d 874 [1st Dept, 1986]). “Absent some showing of fraud in the procurement of the foreign country judgment … or that recognition of the judgment would do violence to some strong public policy of this State … a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding brought in the courts of this State) (Greschler v. Greshcler, 51 N.Y.2d at 376, 434 N.Y.S.2d 694).

The New York’s Supreme Court of Westchester County recognized the Divorce Judgment
The Court in New York recognized the divorce judgment obtained from Abu Dhabi pursuant to the doctrine of comity:

“The general principle of law is that a divorce decree obtained in a foreign jurisdiction by residents of this State, in accordance with the laws thereof, is entitled to recognition under the principle of comity unless the decree offends the public policy of the State of New York” (kraham v. Kraha, 73 Misc.2d 977, 342 N.Y.S.2d 943 [Sup. Ct. Nassau Co. 1973]). “Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of ful faith and credit given by the courts to judgments of our sister States” (Greschler v. Greschler, 54 N.Y.2d 368, 376, 434 N.Y.S2d 194, 414 NE.2d 694 [1980]). “Loosley, [comity] means courtesy, respect, or mutual accommodation; practically, it means that each sovereign, including the State of New York, can decide for itself which foreign country judgments it will recognize and which it won’t” (Siegel, N.Y. Prac. 472 [5th edi.])

New York’s Supreme Court of Westchester County Recognized the Custody Order of Abu Dhabi
The Supreme Court of Westchester County recognized, not only the Abu Dhabi divorce judgment, the Court also recognized all the contents of such a decree, including the custody of the children. The Supreme Court held:

“Since New York recognizes bilateral divorce decrees from foreign countries, recognition will be given to all the contents of such a decree, including a separation agreement incorporate and approved therein…”

The Court held that:

“The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) applies nationally and internationally and is designed to promote uniformity throughout the world in custody determinations (See Sobie, Practice Commentaries, [McKinney’s Cons. Laws of N.Y., Book 14]). The UCCJEA is mandatory and provides that “a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced,” except where “the child custody law of a foreign country as written or as applied violates fundamental principles of human rights” (Domestic Relations Law 75-d[2] and [3]).

The Court held that the UCCJEA “is not a reciprocal act”. There is no requirement that “the foreign country enact a UCCJEA equivalent” (See Sobie, Practice Commentaries [McKinney’s Const. Laws of N.Y., Book 14].) The statute “is designed to eliminate jurisdictional competition between courts in matters of child custody, with jurisdictional priority conferred to a child’s home state.” (Hector G. v. Josefina P., 2 Misc. 3d 801, 809, 771 N.Y.S.2d 316 [Sup. Ct. Bronx Co. 2003]).

The Court held that:

“The decision from the Court of First Instance noted that the mother usually has the right to custody of the children unless proven otherwise. The defendant made no showing to refute the custody award to the plaintiff. This award of custody to the plaintiff was affirmed following two appeals, including an appeal to the highest court in Abu Dhabi. The defendant thereafter petitioned the Abu Dhabi court to change custody from the plaintiff to the defendant based upon the fact that he had moved to the United States. Defendant’s application was denied by the Court of First Instance and affirmed on appeal.”

The Court concluded that neither party alleged that any of the child custody laws of the UAE violate fundamental principles of human right or that the Abu Dhabi courts were without jurisdiction to determine custody. “Nor does the New York’s Supreme Court of Westchester County found any such violation or lack of jurisdiction:

“Therefore, based upon the principles of comity and pursuant to Domestic Relations Law 75-d, this Court must recognize and enforce the custody determination of the Abu Dhabi courts awarding plaintiff custody.”



The Appellate Division Affirms

On January 20, 2016, the Appellate Division affirmed the judgment of the lower Court. It held:

"Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States" (Greschler v Greschler, 51 NY2d 368, 376; see Kuznetsov v Kuznetsova, 127 AD3d 1031). Comity should be [*2]extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York (see Matter of Gotlib v Ratsutsky, 83 NY2d 696, 699-700; Greschler v Greschler, 51 NY2d at 376; Farag v Farag, 4 AD3d 502, 504; Azim v Saidazimova, 280 AD2d 566, 567). Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy (see Greschler v Greschler, 51 NY2d at 376-377; Rabbani v Rabbani, 178 AD2d 637, 638).


Moreover, the Supreme Court providently determined that the plaintiff was entitled to an award of an attorney's fee and expenses incurred in connection with the issues of custody, child support, maintenance, and distribution of property (see Domestic Relations Law § 237[a], [b]).” 

http://law.justia.com/cases/new-york/appellate-division-second-department/2016/2012-11549.html 

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.
·         Professor of Middle East Constitutional and Islamic law,
·         Expert Consultant on Islamic divorce in US Courts and Canada,
·         Expert Consultant on Hindu divorce in U.S. courts,
·         Expert Consultant on Iranian Shi’a divorce in USA,
·         Expert Consultant on Islamic finance.
Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.
Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.
Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries; 
Speaks, reads and writes several languages including Arabic, English, French and others.
Interviewed by:

Author of the book titled “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an”.
Contact Information:


Tel. (609) 915-2237

For more information on our field of expertise, please visit our websites at the following links, where you will find most of our articles:

Wednesday, June 15, 2016

Treatment of Gays Under Islamic Shari’a
By
Prof. Gabriel Sawma
As we mourn the death of 49 American citizens who were massacred in Orlando by an Islamic extremist terrorist, Omar Mateen, the question that is being raised is whether Islamic sharia calls for the death penalty for gays and lesbians. This article covers the penalties as stated by Islamic law and by modern Islamic states in the Middle East and North African nations.


The Qur’anic Verses
There are four verses in the Quran that are borrowed from the Old Testament in relation to Lot, they are:
“And [remember] Lut[1] (Lot), when he said to his people: “Do you commit the worst sin such as none preceding you has committed in the Alamin [mankind]”.[2] (Quran 7 80)

“Verily, you practice your lusts on men instead of women. Nay, but you are a people transgressing beyond bounds [committing great sins]”.[3] (Quran 7: 81)

“Verily, we are about to bring down on the people of this town a great torment from the sky, because they have been rebellious [against Allah’s command].”[4] (Quran 29: 34)

“And we rained down on them a reain [0f stones]. Then see that was the end of the Murimun [criminals, polytheists and sinners.”[5] (Quran 7: 84)


The Hadith
Hadith is the collection of saying ad deeds that are attributed to Muhammad, the prophet of Islam, written more than two hundred years after his death (d. 632 AD). There are six collections of Hadith in Sunni Islam, they are: (1) al-Bukhari (d. 870 AD), (2) Muslim b. al-Hajjaj (d. 875 AD), (3) Abu Dawood (d. 888 AD), (4) al-Tarmidhi (d. 915), (5) al-Nissa’I (d. 915 AD), and (6) Ibn Maja (d. 886).

The Qur’anic verses mentioned above, represent a general idea about the sexual acts of Lot with his daughters as stated in the Old Testament. The Quran does not give a specific penalty for homosexuals. It was up to the writers of the Hadith to impose penalties on gays and lesbians based on what the Prophet of Islam said.

One saying attributed to the Prophet of Islam reads: “if a man is having sexual relation with another man, both are considered adulterers.” The companions of the Prophet of Islam claimed that the people who imitated Lot should get the death penalty. They reasoned that after the prophet’s saying that “if you find a person who does like what Lot did, kill both of them.”

The companions of the Prophet did not agree on the method of execution. The second Caliph and some of his companions suggested stoning of the adulterers as one method; others called for death by burning.[6]


Penalty of Gays and Lesbians in Modern Islamic Nations
Section 489 of the Penal Code of Morocco imposes a penalty of six months up to three years in jail and monetary compensation of 120 to 1000 Dirham. Tunis: Section 230 of the Penal Code of Tunis imposes a jail penalty of three years. In Algeria, Article 338 imposes a jail penalty from two months up to two years with monetary compensation of 500 to 2000 Dinars.

In Sudan the penalty of flogging is handed down. Article 148 of the penal code states that a gay will get up to 100 lashes and imprisonment of up to five years. In Libya the penalty is up to five years in jail. In Mauritania, article 308 of the penal code imposes the penalty of stoning. In Lebanon, the penalty is up to one year in jail. Article 520 of the Syrian code imposes a penalty of up to three years in jail.

Saudi Arabia applies the strict Islamic interpretation according to the Hadith, which is stoning for a married gay, or 100 lashes and imprisonment for one year to non-married. The same penalties are applied in Yemen.

According to article 354 of the Federal Emirati Law of the UAE, the penalty for committing adulterous gay act against a minor under the age of 14, is death by execution. However, each emirate in the UAE has the right to impose its own penalties in these cases. For example, in Abu Dhabi, the penalty for gay act is 14 years in jail. In Dubai, the penalty is 10 years according to article 177 of the penal code.

In Kuwait, the penalty is 7 years in prison according to article 193. Article 281 of the Qatari penal code, the penalty is 7 years. In Oman, article 223 imposes a jail penalty from 6 moths to three years.


DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic shari’a (law). Adjunct Professor at Fairleigh Dickinson University, Madison, New Jersey.
·        Professor of Middle East Constitutional and Islamic law,
·        Expert Consultant on Islamic divorce in US Courts and Canada,
·        Expert Consultant on Islamic finance.
Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with Islamic law of marriage, divorce, custody of children, and abduction of children to Muslim countries.
Testified in many family courts throughout the United States in relation to Islamic family law.
Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.
Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.
Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries; 
Speaks, reads and writes several languages including Arabic, English, French, Syriac, and Biblical Aramaic.
Interviewed by:

Author of the book titled “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an”.
Contact Information:


Tel. (609) 915-2237

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[1] Lut is a reference to Biblical Lot, Son of Haran and nephew of Abraham in Genesis 11: 27. According to Genesis 19: 17-22, as the cities of the valleys were being destroyed, where Lot and his daughters fled from Zoar, where they had taken refuge, up into the hills of Moab. Dwelling with their father in a cave, through incestuous relations.
[2] Translation by Dr. Muhammad Taqi-ud-Din al-Hilali and Dr. Muhammad Muhsin Khan of the Noble Qur’an, King Fahd Complex For the Printing of the Holy Qur’an, Madinah, Kingdom of Saudi Arabia.
[3] Translation by Dr. Muhammad Taqi-ud-Din al-Hilali.
[4] Ibid.
[5] Ibid.
[6] In the Old Testament, the penalty of homosexuals is death by execution.