Recognition of Muslim Marriages: In Whose Interests?
After a flurry of activity in the first ten years of democracy in connection with Muslim Personal Law in South Africa, matters seem to have been bogged down. We are told that the draft bill is with the Ministry of Justice, ready to be sent through to Parliament for final tableing. At the same time, a number of rights groups are concerned that the proposed Bill does not go far enough to protect the rights of women. On the other side, I have heard from numerous ulama (religious scholars) that the proposed Bill is not exactly the Shariah that it is supposed to be. It appears that there is an impasse on the process between these two positions.
The caseload of Muslim marriage s seems to be building up, generally with women having to fight for their constitutional and legal rights through courts. Even though a number of cases have come before the courts, and the courts have made judgments that recognize Islamic marriages, there is still no legal framework that facilitates the resolution of differences. Aggrieved parties are forced to turn to the expensive paths of court litigation.
It often comes as a surprise to hear many South African Muslims say that that the South African government has not recognized Islamic marriages. Muslims in a victim mood find it easy to make this claim. After more than a dozen years of democratic, they say, Islam is still not recognized. The truth of the matter, of course, is that Muslims are finding it difficult to come to a consensus as to the terms of the Muslim Personal Law. I doubt that we will come out of this self-imposed corner.
But there is even greater irony in this matter. All the years during which Islamic marriages were not recognized by various governments, there were more than chauvinist colonialists and apartheid ideologues driving the process. In most of these cases, probably all, there were Muslim men using the law (both national and Islamic) to support their personal cases. Before democracy, men as defendants argued that Muslim marriages were not legal in the South African system. Marriages conducted only according to Muslims rites could not be brought before the courts. In effect, it was in their interests that Muslim marriages not be recognized by the apartheid system. Muslim men benefited directly from such non-recognition.
After apartheid, the recognition of Muslim marriages cannot be challenged in courts any more. The Rylands vs. Edross (1997) case set the record straight on this score. Muslim men could no longer use the earlier approach. But men, litigants above everything else, are still using everything in their power to declare the South African rights and democratic instruments off-limits to Muslim marriages. Now they are finding it convenient that Muslim marriage are by definition unique and special. Using this argument, they can avoid dealing with the real consequences within Muslim marriages.
It is my contention that before we see if the provisions of Muslim and secular marriages are compatible or conflicting, we should carefully look at whose interests are served by chosing one or another option. In South Africa, at least, it is not only apartheid that denied recognition to Muslim marriages. Muslim men challenging their wives in court promoted this non-recognition. Now, the idea that Muslim and secular marriages are a different kind of social instruments is serving a similar goal.
The caseload of Muslim marriage s seems to be building up, generally with women having to fight for their constitutional and legal rights through courts. Even though a number of cases have come before the courts, and the courts have made judgments that recognize Islamic marriages, there is still no legal framework that facilitates the resolution of differences. Aggrieved parties are forced to turn to the expensive paths of court litigation.
It often comes as a surprise to hear many South African Muslims say that that the South African government has not recognized Islamic marriages. Muslims in a victim mood find it easy to make this claim. After more than a dozen years of democratic, they say, Islam is still not recognized. The truth of the matter, of course, is that Muslims are finding it difficult to come to a consensus as to the terms of the Muslim Personal Law. I doubt that we will come out of this self-imposed corner.
But there is even greater irony in this matter. All the years during which Islamic marriages were not recognized by various governments, there were more than chauvinist colonialists and apartheid ideologues driving the process. In most of these cases, probably all, there were Muslim men using the law (both national and Islamic) to support their personal cases. Before democracy, men as defendants argued that Muslim marriages were not legal in the South African system. Marriages conducted only according to Muslims rites could not be brought before the courts. In effect, it was in their interests that Muslim marriages not be recognized by the apartheid system. Muslim men benefited directly from such non-recognition.
After apartheid, the recognition of Muslim marriages cannot be challenged in courts any more. The Rylands vs. Edross (1997) case set the record straight on this score. Muslim men could no longer use the earlier approach. But men, litigants above everything else, are still using everything in their power to declare the South African rights and democratic instruments off-limits to Muslim marriages. Now they are finding it convenient that Muslim marriage are by definition unique and special. Using this argument, they can avoid dealing with the real consequences within Muslim marriages.
It is my contention that before we see if the provisions of Muslim and secular marriages are compatible or conflicting, we should carefully look at whose interests are served by chosing one or another option. In South Africa, at least, it is not only apartheid that denied recognition to Muslim marriages. Muslim men challenging their wives in court promoted this non-recognition. Now, the idea that Muslim and secular marriages are a different kind of social instruments is serving a similar goal.
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muslim marraiges
soraya | 13/10/2008, 12:20
i need advise regarding fasagh & interdicts as well as my rights regarding shared property