REFORMS IN FAMILY LAW
Space precludes any discussion of another relevant question in Kenya —namely, the law of evidence and procedure applicable in the‘Moslem Courts’ of the Protectorate.1 Instead, I want to turn my attention, finally, to a matter that has not yet arisen in any acute form in any of these countries, but which seems bound to arise before very long— namely, certain reforms which may be required in the family law as this is applied by the courts.
This is, of course, a matter of very considerable delicacy with respect to a law which is regarded as based on divine revelation and considered to be virtually immutable. But it has been effected in recent years in almost all the Arab countries, one after another, by means of a variety of ingenious expedients. In the Sudan, for instance, it is expressly provided that the Shari'a courts shall follow the authoritative doctrines of the Hanafi school except in matters in which the Grand Qadi otherwise directs in a Judicial Circular or Memorandum, in which case the decisions shall be in accordance with such other doctrines of the Hanafis or other Muslim jurists as are set forth in such Circular or Memorandum? On occasions, moreover, the reformers—both in the Sudan and elsewhere—have gone well beyond an eclectic choice between the doctrines of the recognized schools and jurists and have adopted a view which is attributed to some extinct or even heterodox school; or which represents a combination in a single whole of parts of two different doctrines that may, in fact, rest on contradictory premises; or which reflects some contemporary deduction from the sacred texts.
It is by means of these expedients that the father’s right—under Maliki and Shafi'i law—to give even an adult daughter in forced marriage, provided only that she had not been married before, has been brought to an end in Tunisia, Morocco and the Sudan.
To this there is as yet no parallel in East or West Africa—except that in the Somaliland Protectorate the Natives’ Betrothal and Marriage Ordinance, 1928, provides that ‘Any unmarried woman betrothed by her father or guardian shall have the right to register personally... her refusal of the betrothal, and in that event her betrothal shall forthwith be terminated’.3 There can be little doubt, however, that some change* Cf. Islamic Law in Africa, pp. 99 ff.
1 Sudan Mohammedan Law Courts Organisation and Procedure Regulations, 1915, sect. 53.
1 Sect. 3(1).
in the Shafi'i and Maliki law in this matter, as applied in East and West Africa respectively, will be demanded before very long. It was only in i960 that the Grand Qadi of the Sudan felt compelled to issue a Judicial Circular[44] on this subject which established the following principles:
(1) That a girl who has reached puberty and has already been married can be given in marriage only with her explicit consent to both husband and dower? This is normal Maliki doctrine.
(2)That a virgin who has reached puberty must give her consent to both husband and dower, although her silence will be taken for consent. Should she, nevertheless, be given in marriage after signifying that she does not consent, no subsequent acceptance will validate the contract? This represents what is substantially Hanafi doctrine, except that the Hanafi girl who has reached puberty, may, alternatively, give herself in marriage without the intervention of her guardian.
(3) That should an adult virgin be informed of a contract of marriage which has been concluded on her behalf without her consent being sought at all, the contract will be void unless she makes an explicit statement of acceptance? This, again, is substantially Hanafi doctrine.
Another subject which may well require attention is the matter of child marriage. All the recognized schools of Islamic law allow certain guardians to contract their infant wards in marriage at an age at which consent, even if given, is of no legal effect.
Most modem Muslims, however, realize that child marriage is eminently undesirable; and legislation has been introduced in almost all the Arab countries to discourage or prevent it? In East and West Africa the solitary parallel is that the Penal Codes, in some countries only, penalize any attempt by a husband to consummate his marriage with a wife who has not reached a prescribed age? So it is interesting to observe in this context that the Judicial Circular issued in the Sudan last year, to which reference has already been made, dealt with this subject in a single article which provides that where there is anxiety about the morals of a girl who has not reached puberty, but who is not less than ten years old, she may be given in marriage, with consent of court, on conditionthat she herself is willing, that her husband is her ‘equal’, that the dower is appropriate, and that her trousseau is suitable.1 This presumably means that a minor child cannot be given in marriage in any other circumstances whatever; but it is curious that such a major reform should have been introduced in such implicit, and almost backhanded, fashion.
Yet another subject which is bound to come under discussion, one of these days, is the restriction of polygamy. It is significant that the contraction of polygamous marriages has been submitted to restrictions in recent years in Syria, Morocco and Iraq, and has been forbidden altogether in Tunisia? The juristic basis for so radical a change in the law was provided by the great Egyptian reformer, Muhammad ‘Abduh, who insisted that the Qur’anic ‘Verse of Polygamy’ should be made the basis for a judicial prohibition of polygamy where the prospective husband cannot be trusted to treat a plurality of wives with equal justice?
Curiously enough, the tendency in Ghana seemed, recently, to be set in the reverse direction. Thus die White Paper on Marriage, Divorce and Inheritance (W.P. No. 3/61) published in May, 1961, suggests that a man should be allowed to register one wife only, but that if he ‘marries or has issue with another woman, this will not constitute an offence’1—regardless of whether he has previously contracted a marriage under Christian, Muslim or customary law.
It is strange that Ghana should be contemplating an extension of the scope of polygamy just when most of the Arab countries are restricting it.In regard to divorce, the need to give ill-treated wives a right to a judicial dissolution of marriage for cruelty, desertion, etc., may well arise under the Shafi‘i law applicable in East Africa. But this is already adequately covered by the Maliki law in force in West Africa; so it
* Sect. 8. See my article, to which reference has made been above, p. 302.
1 For a summary, see ibid., pp. 306-8, or my articles on ‘The Syrian Law of Personal Status’, on ‘The Tunisian Law of Personal Status’, and on ‘A Law of Personal Status for Iraq’, in The International and Comparative Law Quarterly for 1955,1958 and i960, respectively.
’ A further condition—that he should be financially able to support his existing dependants as well as the new wife—has also been suggested.
‘ It seems, however, that these proposals met with considerable opposition. As a result, the draft ‘Marriage, Divorce and Inheritance Bill’ published in May 1962, provides for the registration of only one ‘marriage’, rather than only one ‘wife’; speaks about ‘any other woman with whom a man has children’, rather than other - ‘wives’; and makes no explicit mention of the fact that relations with other women would no longer constitute an offence, although this would in fact be the case.
would be simple to enact suitable legislation in East Africa based on Maliki authority, as has already been done in almost all the Arab countries.1 Much more difficulty would be experienced in any attempt to discourage unilateral repudiation of a wife by her husband; but this is so common an occurrence in parts of East Africa that something may well have to be done about it. In the Arab countries a certain amount of progress has been made in this matter also; for the ‘triple’ divorce in a comprehensive formula, or on one and the same occasion, has been reduced to a single, and therefore revocable, divorce, and the scope of suspended or conditional repudiations has been severely limited.2 In Syria and Morocco, indeed, a husband can be forced to pay financial compensation, in suitable circumstances, to a divorced wife,3 while in Tunisia and Iraq no divorce is effective unless pronounced—or at least registered—in court.4
Much more could be added, but space forbids.
Suffice it to say, then, that legislation proposed in Ghana aims at unifying the law of marriage, divorce and inheritance on a national basis, rather than leaving such matters to the religious, customary or ‘personal’ laws of individual citizens. Such a development would certainly prove attractive in any country in which nationalism provides an urge towards unification and secularization; but it seems most unlikely that public opinion would welcome such a radical change in most of these countries for many years to come. Certainly the suggestions made to this end in the Ghana White Paper were retrogressive rather than progressive; and the unfavourable public reaction to some of these proposals seems to have led to their modification in terminology and ethos, if not in substance and law.5* Cf. my book Islamic Law in the Modern World, pp. 53 ff., and articles referred to therein.
’ Ibid., pp. 55 ff.
1 Cf. The Syrian Law of Personal Status, p. 41 f., and Reforms in Family Law in Morocco, p. 157.
4 Cf. The Tunisian Law of Personal Status, p. 271, and A Law of Personal Status for Iraq, p. 554.
5 Cf. p.182, and footnote (4).