The petitioner sought a divorce from her husband under common law rather than Islamic rite. After several years of marriage, (i) the petitioner discovered that the respondent had lied about being divorced prior to their marriage, (ii) the respondent stopped supporting her financially, and (iii) the respondent neglected their relationship. After she started a business to provide for herself, the respondent employed his former wife’s relatives to “spy and scorn her to leave the house.” The matter was brought to their religious leader, who ordered the couple to three months’ separation to see whether reconciliation was possible. During that period, the respondent lived with his former wife, admitted to other extra-marital relationships, continued to harass the petitioner for conjugal relations, and declared that he did not want her as his wife, which he believed should have legally relieved him of their marriage. The petitioner subsequently applied for divorce in the High Court. The respondent contested adjudicating the matter before the High Court, arguing (i) that the divorce should have been adjudicated by religious leaders rather than a secular court and (ii) that he believed that the marriage was already dissolved given his declaration to his religious leader that he no longer wanted to be married (although no witnesses testified to hearing the respondent pronounce the “talaq” against his wife). The High Court emphasized that courts do not have a monopoly on divorce; for example, couples can divorce by mutual agreement at custom before village civic authorities or other tribunals. However, even in such situations, if one party is wronged or does not consent to the divorce, that party can seek resolution in a secular court. The High Court concluded that the respondent’s alleged “divorce” was not valid, as the respondent had violated the tenets of his faith with his extramarital affairs, harassment of his estranged wife, and lies to lure her into the marriage. Emphasizing the equal status of husband and wife under the Constitution, the Court held that the respondent’s summary declaration of a dissolved marriage in this case, especially as it was unjustified, did not conform to the principles of justice, equality, and morality, and granted the petitioner the divorce under law.
Women and Justice: Keywords
Domestic Case Law
Sande v. Sande High Court of Malawi (2009)
H.A.H v S.A.A and Others Supreme Court of Ireland (2017)
The applicant was given refugee status and had successfully applied for permission for his second wife to join him in Ireland. The present case arose when he sought to have his first wife join him. In considering the legal consequences of a polygamous marriage entered into in another country, the Supreme Court ruled that, where a man had married two wives under the laws of Lebanon, the first marriage is valid under Irish law but the second is not. The appellant (husband) had married two women in a manner permissible under the laws of Lebanon (their previous state of domicile). He sought a declaration, pursuant to Section 29 of the Family Law Act 1995, that his marriage to his first wife was valid on the date of its inception. The High Court found the polygamous marriage entirely invalid. On appeal, the Supreme Court reasoned that: (a) rules of private international law require the State to recognize a marriage validly contracted under a foreign system of law unless such recognition is prohibited by public policy; (b) the Constitution and Irish public policy envisage a marriage as a union between two people based on the principles of equality and mutual commitment; (c) there is therefore no bar to recognizing a marriage “that is in fact monogamous, where the only objection is that the system of law under which the couple married would permit more than one marriage;” and (d) Irish law and the Irish Constitution preclude the recognition of a second or subsequent marriage while the first marriage is valid, although that does not mean that a subsequent marriage can never have legal consequences. The Court granted the declaration of the validity of the first marriage because it was valid when contracted and the husband’s subsequent marriage should not preclude that.
Shayara Bano v. Union of India Supreme Court of India (2017)
The petitioner was divorced by her husband after 15 years of marriage by means of the talaq-e-biddat declaration. She filed a writ petition arguing that the declaration was unconstitutional. Talaq-e-biddat is a practice whereby a Muslim man can divorce his wife upon saying “talaq-e-baddat” thrice in one sitting. The wife’s consent is not required in this practice. The Constitutional Bench of the Supreme Court of India declared the practice unconstitutional by a majority vote of 3:2 and injuncted Muslim husbands from pronouncing “Talaq-e-biddat” as a means for severing the marital ties. The court reasoned that the practice is unconstitutional because it is manifestly arbitrary in nature. There was also a concurring opinion which held that the practice of talaq-e-biddat is against the holy Quran and thus lacks legal sanction. In its judgement, the Court also directed the Parliament of India to take appropriate measures to bring related legislation into effect. Consequently, the Muslim Women (Protection of Rights on Marriage) Act came into effect on 31st of July 2019.
Moosa N.O. and Others v. Harnaker and Others High Court of South Africa: Western Cape Division ( Hooggeregs Hof van Suid Afrika: Weskaap Afdeling) (2017)
The deceased was married to the second and third applicant under Islamic law. The marriage of the deceased and the third applicant was entered into before the marriage between the deceased and the second applicant. However, the deceased and the second applicant entered into a civil marriage to qualify for a home loan. Following the death of the deceased, The Registrar of Deeds, Cape Town, refused to register the title deed to the family home in the name of the third applicant. The Registrar’s refusal was premised on the meaning of the term “surviving spouse” as contemplated in terms of section 2C(1) of the Wills Act 7 of 1953 (the “Wills Act”). According to the Registrar, the only recognised surviving spouse of the deceased is the second applicant as they entered into a civil marriage. The Court declared section 2C(1) of the Wills Act unconstitutional as it does not recognise the rights of spouses married under Islamic law nor multiple female spouses married to a deceased testator in polygynous Muslim marriages.
Die oorledene is volgens die Islamitiese Wet met ‘n tweede en derde applikant getroud. Die huwelik van die oorledene en die derde applikant is aangegaan voor die huwelik tussen die oorledene en die tweede applikant. Die oorledene en die tweede applikant het egter ‘n siviele huwelik aangegaan om te kwalifiseer vir ‘n huislening. Na die afsterwe van die oorledene het die Registrateur van Aktes, Kaapstad, geweier om die titel-akte van die gesinshuis in die naam van die derde aansoeker te registreer. Die weiering van die registrateur is gegrond op die betekenis van die term “oorlewende gade” soos beoog in terme van artikel 2C(1) van die Wet op Testamente 7 van 1953 ( die “Testamente Wet”). Volgens die registsrateur is die enigste erkende oorlewende gade van die oorledene, die tweede aansoeker aangesien hulle ‘n siviele huwelik aangegaan het. DIe hof het artikel 2C(1) van die Wet op testamente ongrondwetlik verklaar aangesien dit nie die regte van gades wat kragtens die Islamitiese wet getroud is, erken nie asook nie veelvuldige vroulike eggenote wat met ‘n oorlede testateur in ‘n poligamiese moslemhuwelik verbind is nie.
Gandhi v. Perak, et al. Federal Court of Malaysia (2018)
The appellant, Pathmanathan (husband), and the respondent, Indira Gandhi (wife), were married and had three children. In March 2009, the husband converted to Islam. In April 2009, the husband obtained certificates of conversion to Islam issued by the Pengarah Jabatan Agama Islam Perak over all three children as well as an ex-parte interim custody order over the children. In September 2009, he obtained a permanent custody order from the Syariah Court. In 2013 and 2014, the mother obtained orders from the High Court annulling the unilateral conversions and the Syariah Court’s custody order, inter alia, on the grounds that vesting equal rights to both parents to decide on a minor child’s religious upbringing and religion would be in accordance with international human rights principles, specifically the convention on the Rights of the Child (CRC) and CEDAW. The first appeal in this case concerned the validity of the conversion of the children to Islam. The majority in the Court of Appeal allowed the husband’s appeal and held that the Syariah Court had exclusive jurisdiction to determine the validity of the children’s conversion to Islam. Dealing with the issue of whether the conversions violate international norms, the Court noted that international treaties do not form part of domestic law unless those provisions have been incorporated into domestic law and that the High Court’s approach of following very closely the standard of international norms in interpreting the Federal Constitution is not in tandem with the accepted principles of constitutional interpretation. Accordingly, the Court of Appeal did not declare that the conversions of the children were invalid. The Federal Court overturned the lower courts’ decisions on appeal, reasoning that the children had not met the statutory requirements of conversion. Specifically, the Court found that the children did not state the two clauses of the Affirmation of Faith in Arabic as the Perak Enactment requires for a valid conversion to Islam. In addition, the Federal Court held that mothers have parental rights equal to fathers, so the permission of both parents is required for a child’s religious conversion.
Esseku v. Inkoom Superior Court of Judicature (2012)
Ms. Esseku and Mr. Inkoom had been married for 30 years. The husband claimed to have divorced his wife in 1995 under Muslim tradition and custom. They had one property together, which Mr. Inkoom sold without consulting Ms. Esseku or their five children, all of whom he evicted off the property. The trial court held that the property was a joint property of both parties, and nullified the sale. Examining the evidence, the Superior Court affirmed the holding because Ms. Esseku had made a “substantial contribution” to the property by building an additional two bedrooms to the house. Furthermore, the Court held that even if she had not made a substantial contribution to the acquisition of the property, she still would have been entitled to an equal share of the property because of her valuable considerations made during the marriage, like “the performance of household chores” and the “maintenance of a congenial domestic environment for the respondent to operate and acquire properties.” As such, both parties were entitled to equal shares of the property, and Mr. Inkoom could not sell the house without consulting her first.
Legislation
Article 6 (1) states that all Jordanians are “equal before the law” and that there shall be no discrimination between them in rights and duties on the basis of race, language, or religion. This is an overarching provision, without explicit mention of gender, however it does provide a basis for equality for “all” Jordanians. Article 6 does not apply to Muslim personal status matters, which are instead governed by the Jordanian Personal Status Law and the exclusive jurisdiction of the Shari’ah courts (Article 103 (2) of the Jordanian Constitution).
ورد في الفقرة الأولى من المادة السادسة أن الأردنيون متاسوون في الحقوق والواجبات وإن اختلفت أعراقهم ولغاتهم وأديانهم. من الجدير بالذكر أنه وعلى الرغم من أن الفقرة لم تحدد الجنس كعامل فارق، إلا أن المادة جات عامة لتشكل جميع الأردنيين. لا تنطبق هذه المادة على قضايا الأحوال الشخصية، حيث أنها تخضع لقانون الأحوال الشخصية الأردني تحت اختصاص محاكم الشريعة الإسلامية.
The Muslim Women (Protection of Rights on Marriage) Act (2019)
Parliament enacted this law pursuant to the Supreme Court decision Shayara Bano v. Union of India. Section 3 of the Act bans and voids talaq-e-biddat declarations , while Section 4 stipulates imprisonment of up to three years along with fine for a Muslim man who pronounces talaq. Section 7 of the Act also declares the offence of pronouncing Talaq as a cognizable, non-bailable, and non-compoundable offence. The Act provides additional protections to Muslim women upon whom talaq is pronounced in Sections 5 and 6, including a subsistence allowance from their husband and custody of their children (as determined by the magistrate) respectively.
According to Iranian law, the husband is the exclusive holder of the position of “head of the family” (Art. 1105). As such, the husband provides his wife with the cost of maintenance (Art. 1106), “which includes dwelling, clothing, food, furniture, and provision of a servant if the wife is accustomed to have servant or if she needs one because of illness” (Art. 1107) Article 1108 creates a duty on the part of women to satisfy the sexual needs of their husbands at all times. This is the tamkin (submission) requirement of Sharia law. If a wife refuses to fulfill her duties, she may be barred from receiving maintenance payments. The husband determines his wife’s place of residence and thus controls her freedom of movement (Art. 1114). If the dwelling of the wife and husband in the same house involves the risk of bodily or financial injury or that to the dignity of the wife, she can choose a separate dwelling. If the alleged risk is proved, the court will not order her to return to the house of the husband and, so long as she is authorized not to return to the house, her cost of maintenance will be on the charge of her husband (Article 1115). In addition, the husband may prevent his wife from exercising a certain profession if he deems it “incompatible with the family interests or the dignity of himself or his wife” (Art. 1117).
Article 147 of the Islamic Penal Code specifies that the age of maturity triggering criminal responsibility is 15 Islamic lunar calendar years for boys, but only nine Islamic lunar calendar years for girls. This signifies that young girls can be charged as criminally responsible adults in Iran before they reach the age of puberty. Articles 237-239 forbid same-sex kissing and touching, which will be punished by 31-74 lashes. Female genital touching (musaheqeh) is punished by 100 lashes. Article 225 mandates the death penalty for adultery (zina), which international commentators have noted is disproportionately applied to women (e.g., UN Special Rapporteur for Violence Against Women report: http://www.ohchr.org/Documents/Issues/Women/A-68-340.pdf). Article 199 describes the number and gender of witnesses needed to prove various crimes; no crimes may be proven with female witnesses alone and any female witness requires corroboration of a man and another woman. (Full Persian version of the Penal Code available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)