Why Women Turn to the Sharia Courts

The types of cases I outlined above, and the reasons why women turn to shari’a courts, highlight the social context within which they are often operating - a patriarchal order. Though their context may be similar, their backgrounds are diverse.

Yet despite their diversity they share one common feature: what they often want is a religious divorce. This is important. They are not interested in mediation or arbitration; they want to end their marriage and get a religious divorce. The fact that the majority of women going to the shari’a courts have not registered or formalised their religious marriage according to civil law only highlights the legal loopholes that compel these women to seek the assistance of the shari’a courts. Once they go there, they enter into an inherently discriminatory process, in which they are pushed to seek mediation instead of divorce. Some are even forced to concede the rights they would be afforded by civil law, as their only means to get the religious divorce they desperately seek.

At the three shari’a councils I visited in London and Birmingham, the people I met all confirmed that women who resort to the shari’a councils are seeking a religious divorce.

Sister Sabah, the administrative coordinator of the Family Support Service at the Islamic Shari’a Council in Birmingham told me that nine out of ten cases coming to the council are from women applying for divorce: ‘obviously [...], if a man wants a divorce they can give it to themselves’. Women are given a choice: ‘if they want to have a divorce privately, they are able to [be referred to a mosque]; if they want a certificate, then they have to follow the procedure’.²⁷

The procedures will involve visiting the council’s Family Support Service and Counseling Clinic, where female counsellors will listen to the case of the individual or couple.

Sheikh Mohammad Talha Bokhari, the coordinator of the Shari’a Council and one of its members, confirmed Sister Sabah’s account. Asked about the types of cases that come to the council, he said they do not get many marriage cases; their mosque has a marriage bu­reau that deals with such cases. Rather, the council deals with divorce cases; in most of them, ‘the wife does not want to live with him and the husband does not want to give her a divorce’.²⁹

Dr Mohammad Shahoot Kharfan, the imam of the Muslim Welfare House in London, said that most of the cases he deals with are either to contract a marriage or to issue a divorce. What he usually does first is try mediation between the two partners; when this does not succeed he issues a divorce.³⁰

Salim Leham, the legal director of the Muslim Welfare House in London, explained to me that most of those coming to the centre are refugees of Arab or Somali backgrounds. Very often they do not speak English and need assistance. His role is to help them in their communications with the local authorities. When it concerns family cases, specifically issues of talaq and khula, people are referred to the imam, in this case Dr Kharfan. Sometimes Leham translates for him if the applicant is a convert who does not speak Arabic. He added that the ‘sheikh gives the Islamic perspective, but we live in a state that is not Muslim; its law should be implemented. So we explain the British divorce process to them, [...] and help them in the court system’.³¹

On the other hand, Sheikh Dr Suhaib Hasan, of the Islamic Shari’a Council in Leyton, stated that his council was created in 1982 to ‘guide the Muslim community in all matters’; later the council rec­ognised that there was a ‘great field still not filled by any Muslim organisation: the field of matrimonial problems of talaq and khula.

We receive a lot of cases of women seeking khula. Now the very same woman might go to civil court as well. And civil courts do not try to mediate, they do not try to reconcile, but they try to give the decision regarding the case which is presented to them. But that is not the case with us. Here, whenever a woman ap­plies for a divorce, we treat it as a case of khula, in which the man has to be persuaded to give his consent. If he is not ready, if he is not willing to give a khula, then it is not a proper khula. Then it becomes our responsibility as qadis [judges] to dissolve the marriage.

So in this way, we have to have a joint meeting for husband and wife, and when they come, we try to mediate between them. So this is part of our policy, that we should try to mediate between the two of them and try to explore if there are any avenues in which they can come together, they can minimise their differ­ences, and they can live together. We ask a woman if she has any conditions, please lay down these conditions, and we say to the man, if you comply with these conditions, we will give you still another chance, two or three months, and if the man does not comply with these conditions, then we will award the woman the divorce she is seeking.

So we do try mediate in each and every case, except when it becomes very clear that the woman is a victim of violence, and there is no room for reconciliation at all. Then and only then we take the decision ourselves to dissolve the marriage because the man does not want a divorce, but if he is willing to divorce then the matter is very easy.³²

Hence, mediation is almost always offered as an obligatory part of the process even if the woman has a clear objective of obtaining a religious divorce. This may lead to situations where women are forced to enter into mediation.

Sonia Shah-Kazemi and Samia Bano, in their two separate studies, have highlighted that the single most important reason why women turn to shari’a councils is to get a religious divorce - not a desire to save their marriage or enter mediation.³³ Shah-Kazemi, who favours the use of shari’a councils, asked her interviewees about their views on mediation. All talked about the positive aspect of mediators com­ing from backgrounds like their own. However, women who came from small, close-knit communities (from different regions in the UK) did express their concerns about confidentiality within the commu­nity. Only one interviewee had actually gone through the mediation process. When mediation concerns their children, the positive attitude towards mediation evaporates.

Shah-Kazemi recognised that women who come to the Shari’a Council have made up their mind about the divorce. One of her inter­viewees put it this way:

[The situation was] too far gone; if there had been any doubt in my mind I would not have started the procedure [...] I had thought about it: ‘Is there any hope in this?’³⁴

Samia Bano, who extensively studied these mechanisms, has observed that in some cases women were encouraged to reconcile even if they did not wish to do so. She is very much aware of the troubling con­text within which mediation takes place: it is riddled with dynamics of power emphasising what is described as the woman’s divinely or­dained obligation. It is also male dominated, and often imbued with conservative interpretations about the position of women in Islam.³⁵

Bamo describes one of the troubling findings of her study: ten of her interviewees reported that they had been ‘coaxed’ into participating in the reconciliation sessions with their husbands even though they were reluctant to do so. More troubling still, four of these women had existing injunctions against their husbands on the grounds of domes­tic violence and yet they were urged to sit only a few feet away from these men during the reconciliation sessions.³⁶

Bano came to this conclusion:

Empirical findings in this study confirm the existence of intra­group inequalities and that Shari’ah councils construct boundaries for group membership that rely upon traditional interpretations of the role of women in Islam, primarily as wives, mothers and daughters. Under such conditions the multicultural accommoda­tion of Muslim family law in Britain can lead to violations of human rights for Muslim women.

Similarly, Charlotte Proudman, who provided evidence in support of Baroness Cox’s bill, said that in all the cases she examined, women went to shari’a courts to end their marriages. Yet more often than not, these women were pushed to enter mediation in a process that was mi­sogynist and gender discriminatory. Proudman not only profiled cases she dealt with personally in her capacity as a lawyer. She also docu­mented testimonies provided by nine reputable Muslim and women’s

Womewawd Saia law 39 organisations working within the communities, which handled cases of women turning to shari’a courts.³⁸

Their accounts are important in illustrating the patriarchal social context of these women, the social control and pressure they endure while seeking to receive their religious divorce, and the lack of legal knowledge, combined with the system’s legal loopholes, that are driv­ing them to shari’a councils. Two testimonies are worth mentioning.

The first is of Jasvinder Sanghera, the president of Karma Nirvana - a renowned registered charity - which supports victims and survi­vors of forced marriage and honour-based abuse. Sanghera provides expert evidence and opinions in family law matters to UK courts of law. She gave this testimony:

Many women telephoning Karma Nirvana are calling to ask how to obtain a shari’a divorce. Karma Nirvana supports them with their application, often providing women with a letter of sup­port. Once women begin the shari’a divorce process, the shari’a councils soon pressurise vulnerable and marginalised women to reconcile their marriage. Family members also become involved further adding to the pressure these women are under to return to the matrimonial home regardless of the abuse that they have, and will continue to, suffer.

The Henna Foundation, a national registered charity committed to strengthening families in Muslim communities, highlighted the legal misinformation that leaves these women vulnerable. Over the past 12 years one-third of Henna’s work involved Muslim women who were seeking an Islamic divorce and clarity on their Muslim marriage:

The lack of regulation and accountability of the Councils has caused undue stress and pressure particularly on Muslim women. This can be illustrated in the lack of acceptance of decree abso­lutes [civil divorce] as a valid and finalised divorce for Muslim women. A number of renowned scholars have made it clear that a decree absolute [civil divorce] is sufficient to fulfil the require­ments of an Islamic divorce and technically Muslim women need not obtain a Shari’a Council divorce. However due to community pressure, lack of understanding of divorce, and also for peace of mind, a large majority of Muslim women will apply for an Islamic

divorce once given their decree absolute. The lack of understand­ing on the issue of divorce is particularly concerning as there are religious leaders and ex-husbands etc. who exploit this and tell vulnerable Muslim women that they are still married in Islam and that they have to continue to perform their duty/role as a wife.⁴⁰

The above descriptions paint a picture of what I call an anthropo­logical version of the law. I define it as a version of law void of any historical, political, or even legal context. Again, it is at play here in the contexts described above. Women are lost in a confusing system that persistently fails to address their needs.

Women are resorting to the shari’a courts because they need to ob­tain a religious divorce, but the need is complicated by three factors.

First, Wostwomenareignorantabout the Iegaistatusof rn^ai'i'i^ag^e and divorce. On the one hand, most of these women are unaware that a marriage conducted outside of the UK is accepted as legally binding back in Britain. They can therefore obtain a civil divorce with the pro­tection that comes with it. On the other hand, most are also unaware that a British civil divorce is religiously accepted as a valid divorce.

Secondlthewomans Cligiousmarriagecontractedinthe !JKmaγ not be registered. As I described above, many women who seek di­vorce have contracted only religious marriages in the UK and have failed to register them. They need a divorce and to get that divorce they turn to the shari’a councils.

Third, the fundamentalist interpretation of l^^l^m is !:>^i^ng main­streamed. The rise of fundamentalist interpretations of Islam, such as those in Salafi Islam, has mainstreamed and propagated the false assumption within closed UK communities that a Muslim woman is only divorced through an Islamic divorce. This opinion was strongly articulated by Haitham al-Haddad, a former member of Shari’a Council, Leyton, who warned against accepting the ‘judgment of non-Muslims’ in a fatwa he issued in July 2010. He insisted that a ‘divorce issued by the civil court in response to the wife’s request is neither a valid divorce nor legitimate marriage dissolution’.⁴¹

Al-Haddad’s opinion is in fact a fringe opinion - an extreme one. It contradicts the actual practice in many Islamic countries, including Pakistan, Bangladesh, Tunisia, and Morocco, which do accept a civil divorce as a valid divorce. Sohail Akbar Warraich and Cassandra Bal- chin demonstrated this legal practice in their report Recognising the un-Recognised; they say that cases coming before courts in Bangla­desh and Pakistan involving a British civil divorce always involve cus­tody and property disputes, and neither party challenges the actual fact of the divorce.⁴²

Al-Haddad' opinion also stands at odds with classical Islamic ju­risprudence. In fact, Rashad Ali points out that Muslim scholars have traditionally advised Muslims to obtain divorces from courts within the legal system where they live. Such divorces would be legitimate divorces both on religious grounds and according to the law of the land. This position is not novel - it is part of classical Islamic jurispru­dence and has long been advocated by pre-modern scholars for Mus­lims living in areas which have a majority non-Muslim population or even where non-Muslims were judges in Muslim-majority countries. Accordingly, it is religiously, morally, and legally binding upon Mus­lims to adopt the prevailing legal norms and standards within their own contractual undertakings. One leading contemporary authority on Islamic law, Sheikh Abdullah Bin Mahfudh Bin Bayyah, explicitly states that you are married and divorced according to the laws of the country where you live.⁴³

He is not alone in this. The Birmingham Council abides by this rule. Indeed, Sheikh Mohammad Talha Bokhari, the coordinator of that shari’a council and one of its members, explained to me that if a woman came with a civil divorce, she would not need a religious divorce from the council: ‘Because when the [civil] divorce has come, issued from the civil court, then she is done. That is a divorce.’⁴⁴

Supporters of Shari’s councils reject this solid theological position and the modern practice of legal systems in Islamic countries; instead they argue for an anthropological version of Islamic law, demand­ing that a parallel legal order of shari’a courts be integrated into the Western legal system. This is a misrepresentation of the issue. Women are not seeking religious arbitration; what they need is a procedural measure that allows them to get a religious divorce without having to go to a religious court. The British authorities have so far failed to address this problem out of an absurd sense of political correctness. There are specific policy measures that can address the issue but doing so will require political will. I will describe them in the conclusion.