The BBC show Panorama, through secret filming, has found that Shari'ah courts are not helping women in domestic violent situations.
The Telegraph states: “85 councils operating in mosques and houses across the country has revealed that the courts, which are run by sharia councils, are ruling in favor of men meeting estranged wives or having access to children when they have found to have been abusive”
It also mentioned the case of a sister called Sonia who was “granted a civil divorce in a British court, which had given her husband only limited access to the children. However, Leyton Islamic Sharia Council ruled the children should be given to the father. When she told the Islamic scholar of the domestic violence she and her children had suffered, his advice was to not inform the police as that would be the “very, very last resort.”
The BBC mentioned another case of sister Ayesha whose husband was in prison for violence, but Dewsbury Sharia Council told her she would have to go to mediation with him.
“I said I can't do that because he's not even allowed near my house and because I am frightened, I can't face him… but they didn't take any notice,” she said… It took her two years to get a Shari'ah divorce.
Unfortunately, Islam, Imams and Shari'ah law are always a target for the media. It is easy to misrepresent Islam and the laws which come with it. What's even more saddening is that unfortunately, many of our Imams do not comprehend many of the issues faced by the multicultural Muslim community in the UK. In our view, many do not fully understand and appreciate matters of domestic abuse and the severity which comes with it. This is why Nour is working towards holding workshops hosted by those few Imams who are extremely well educated in this field and who can pass their knowledge and understanding on to others.
Many women who contact us regarding domestic abuse inform us the sad reality that they are denied the right to divorce. In many cases, they inform us of the violent relationship they are trying to escape from, but unfortunately, when they seek help from some Shari'ah Councils, the severity of the cases are not always effectively measured. If the cases mentioned have been portrayed in their real light then it is highly regrettable that said rulings were issued without considering the various dimensions of domestic abuse a victim can face and which Islam completely abhors and makes allowances and provisions for the dissolution and annulment of marriage.
The members of the mentioned Shari'ah Councils, as far as we are aware, are extremely knowledgeable and qualified in their appropriate fields of expertise. Therefore the proceedings paragraphs are not necessarily a critique of them; we hope to provide some recommendations from our experience in the field of domestic abuse and also perhaps clarify that fiqh (jurisprudence) is not a monolithic system of laws, but is flexible and includes a multitude of laws that suit the circumstances and various context of human social and spiritual life. If a Shari'ah Council offers a judgement on a case from their respective schools of thought and approach, it does not necessarily imply that this is the de facto ruling on that issue. There may be other views and rulings which, in our view, could – and should – be considered.
One of the objectives of marriage in Islam as mentioned by God in the Qur'an is love and mercy. Speaking about the spousal relations, God Almighty clarifies: “And of His signs is this: He created for you spouses from yourselves that you might find tranquillity in them, and He ordained between you love and mercy. Indeed, herein are signs for those who reflect.” (Ar-Rum: 21).
God also commands the spouses explaining “…Either live on equitable terms or separate with kindness….” (Al-Baqarah: 229).
Husbands are advised “…And do not hold them (the wives) to injure them or take undue advantage…” (Al-Baqarah: 231).
All these verses make it very clear that according to the rules of God, it is the duty of the spouses not to abuse each other physically or emotionally. Since the husband is the head of the household, he is directly commanded not to injure his wife in any manner.
If a woman complains to an Islamic judge that her husband has been abusive and has caused her mental or emotional harms then the judge has to investigate the matter through family counselors or psychologists to verify her complaints. If it is proved that her husband is really abusive then the judge has the authority to separate them and dissolve their marriage.
It is difficult to judge and fully ascertain the veracity and the context of the said rulings, 'mediation,' and comments of some of these reports written about the Shari'ah councils. It 'may' be that many of the fiqh (jurisprudential) rulings have been taken out of context and the proper framework. However, as Shari'ah council members and people of authority we need to be responsible and understand the cultural and religious dynamics within the community when issuing rulings and judgements.
At Nour, we work with a team of Islamic advisers who are qualified in Shari'ah and do not take domestic abuse lightly. They work with professionals and counselors effortlessly, to ensure that those affected by domestic violence know their rights. They also work to tackle this misconception that they must endure abuse rather than take action.
Nour isn't a charity-organization which promotes divorce. Divorce is the very last resort; after all other means have been exhausted. However, no woman should be made to go back to a house where she feels threatened, frightened or abused. She should not be discouraged to move out or seek help from other people or organizations. Divorce in cases of sustained physical (or otherwise) abuse and violence from a spouse is completely unacceptable and is grounds for annulment of marriage. If we survey, briefly, the books of fiqh (jurisprudence) and Hadith (statements of the Prophet), we will come to learn that scholars allow a woman to divorce (through a court or judge) her husband when he does not fulfil the rights of the marriage contract. They cited a number of causes and reasons for which a woman may seek divorce. They include:
- Physical, mental, or emotional abuse or torture. When one of the spouses becomes abusive and inflicts physical, mental, or emotional torture, and is not willing to change by taking practical measures through therapy or counseling, then it is a valid reason for seeking divorce, for the Islamic principle states, “There shall be no inflicting or receiving of harm.” Dhulm (injustice) is not tolerated in Islam, regardless of who the perpetrator is.
- Failure to fulfill the objectives and purposes for which marriage was initiated. This can be utter incompatibility between the partners, which may be expressed by their irreconcilable differences in temperaments, likes, and dislikes.
- Marital infidelity. This can be a major cause for dissolution of marriage, for marriage is built on trust and confidence. Its main purpose is to preserve the chastity and modesty of those involved. Once this foundation is eroded and undermined and there is no chance to restore the same, then divorce is the way to go.
- Failure of the husband to provide. When the man, who is considered the provider and maintainer of the family, fails to shoulder his responsibilities and the wife decides that she cannot continue tolerating his shirking of responsibility, this is grounds for divorce.
A woman who cannot bear to live with her husband has the right to free herself from the marriage bond by returning to her husband the mahr (required marriage gift) and gifts he has given her, or more or less than that according to their mutual agreement. It is, however, preferable that he should not ask for more than he has given her. Allāh Almighty says: “…And if you (the judges) fear that the two may not be able to keep to the limits ordained by Allāh, there is no blame on either of them if she redeems herself (from the marriage tie by returning all or part of the mahr)…” (Al-Baqarah: 229).
The wife of Thabit ibn Qays came to the Prophet (peace and blessings be upon him) and said, “O Messenger of God, I do not reproach Thabit ibn Qays in respect of character and religion, but I do not want to be guilty of showing anger to him.” (Her meaning was that although Thabit was a good man, she was unable to get along with him and thus might not be able to show him the respect due to a husband.) The Prophet (peace and blessings be upon him) asked her about what she had received from him. She replied, “A garden.” He asked, “Will you give him back his garden?” “Yes,” she said. The Prophet (peace and blessings be upon him) then told Thabit, “Accept the garden and make one declaration of divorce.” (Reported by Bukhāri and an-Nasa'i).
As stated earlier, divorce is not something that should be encouraged and the Prophet (peace and blessings of God be upon him) always tried to reconcile between the couple but also understood the wishes of the people and appreciated that divorce sometimes is necessary. The aforementioned example is one such case where the Prophet (peace and blessings of God be upon him) allowed the dissolution of marriage. The reader will notice that the husband did not break the major rights of marriage. One wonders and asks what would be the case and the reaction of the Prophet (peace and blessings of Allāh be upon him) if a woman were to approach him who has been physically and emotionally abused for a sustained period of time?
Marriage mediation is something that is also which Islam encourages and condones. It has laid down certain foundations and rules which safeguards all parties. They are there so that the affairs are dealt with in a transparent manner which will benefit the individuals concerned and their 'specific circumstances'. However, we must also understand that mediation can only take into effect when the two individuals concerned are willing to reconcile their 'differences' and seek to renew their life together. When one spouse is being brutally abused for a sustained period of time, mediation at that instance is difficult if not impossible, especially when the individual is seeking a way out and which the Shari'ah affords them the provisions for annulment.
Domestic violence is an increasing phenomenon in the Muslim community. Shari'ah councils do need to recognize this and they must act accordingly. They must work to train their advisers and Imams to recognize the signs of a domestic violence case and to protect those who are being abused.
They must recognize that it takes great courage and great effort to seek help from a domestic violence situation. The last thing the victims need is to be sent home to the very person who is abusing them. The very last thing they need is to be discouraged to seek help. Our Imams must protect these very people when their 'protectors' are abusing them. We, as a community, need to recognize the increasing rate of domestic violence cases and we must not punish the victims further.
Islam does not teach to oppress our womenfolk. Before Shari'ah law, women were being abused, baby girls being murdered and buried alive, girls being sold and thought of as evil. Islam liberated women. It has placed women on the highest pedestal, with incredible worth. They are honored with the statement that heaven lays beneath their feet after motherhood. Mothers are given three times more worth than a father. Daughters are enough to attain parents' heaven. Spouses are beautiful described as 'garments' [2:187] – who work to cover each other's faults, to guard each other's privacy, to be close to each other, to be each other's warmth.
The Prophet (peace and blessings of God be upon him) taught that “The best among them are those who are kindest to their wives.” [Bukhāri and Muslim] and, “do not beat God's female servants (i.e. women)” [Abu Dawud, Ibn Majah]. He further taught that, “Abusing a Muslim is a sin, and killing him is disbelief.” [Bukhāri and Muslim]. God Almighty teaches to, “Live with them on a footing of kindness and equity” [4:19]. Thus how can we ask our womenfolk to remain in an oppressive, abusive relationship? When the prophet (peace and blessings of God be upon him, was approached by Fatimah bint Qais about two men who proposed to her, he advised her that, “Mu'awiah he is very poor and Abul Jahm is accustomed to beating women” [Muslim]. When he has protected Fatima bint Qais from this situation, how can we encourage our sisters to fall back into this situation? Islam does not condone violence and it most certainly does not condone oppression and abuse.
As with the cases above, many fiqh (jurisprudence) rulings must be analyzed appropriately before a judgement is delivered. Fiqh (jurisprudence) is sufficiently flexible to meet the needs of our society. Unfortunately, we Muslims do not always represent it properly and accurately. As with the case of Sonia, and the issue of custody of children, the common view is that when a woman (divorcee) remarries the children should be given to the father if they are of the right age. But there are precedents in the Sunnah (actions and statements of the Prophet) that the woman was allowed to keep her children even after marriage (Umm Salamah). In fact imām al-San'ani (a great classical jurist of Islam) after mentioning the differences of the scholars regarding the custody of the children clarifies the objective based reasoning in regards to the various, opposing and divergent views among the fuqaha (jurists) concerning the custody of the children. He wrote: “The Children should stay with the parent who fulfills their best interests. If the mother is the better caregiver and will follow up on the children diligently, then she should have priority over them…. The children have to be in the custody of the more capable parent, and the Law cannot possibly judge otherwise.” (Subul al-Salam, vol 3, p. 227).
The fuqha (jurists) discussed the conditions of custody and when the right of custody could be revoked from the concerned individual. They mentioned conditions such as fisq (rebellious), where a person, for example, drinks and fornicates etc. They discussed the issue of whether the custodian or guardian has the ability (qudrat) to look after the children citing that certain illnesses if found to be present with the guardian, which is transferable, is a reason to revoke the custodianship of the children. The prime basis of the reasoning of the fuqaha's (jurists) deductions and rulings of the texts is predicated on maslaha (interest) of the children and whether the individual given the right of custodianship is able to fulfil the interests of the children.
If the father is proven to be a violent abuser of the wife how can he be considered to be fit to look after the children. Working in the area of domestic abuse and violence we at Nour are too aware of the violent nature and the evil consequences of domestic violence on the children. Therefore, in our view, a woman will not be contravening any injunctions of the Shari'ah. Rather she is protecting and safeguarding one of the prime objectives of the Shari'ah, which is to engender benefit and repel harm.
(NB: the issue of custody of the child is a very complex one which scholars have discussed for centuries. They have forwarded over 12 different and opposing views depending on the circumstances of the wife and husband that).
It is our hope that Imams and the various Shari'ah councils in the UK and abroad consider the aforementioned points and see that the following recommendations are applied within their councils and affiliate working streams:
- Collaborate with professionals and experts in areas where they are not very familiar with such as domestic violence support workers, and counselors who work specifically in this field.
- Train the Shari'ah board members and scholars in areas and fields they may not have expertise in such as domestic abuse issues (since this is one of the main areas that they deal with constantly).
- Separate, when issuing judgements, the culturally based rulings and the imperatives of the Islamic principles. Cases should be issued at the interest and benefit of the individual's religion and social and psychological state. Not on the person's views. That sometimes may require adopting opinions which do not conform to our traditional viewpoints.
“The Prophet never beat any of his wives or servants; in fact, he did not strike any living being with his hand except on the battlefield or when the prohibitions of Allāh had been violated, and he retaliated on behalf of Allāh.” (An-Nasa'i).
With the grace of Allāh, Nour has been able to assemble well-versed advisers, who abide by the Qur'an and Sunnah and act accordingly against oppression, abuse and violence. If you are being abused, please do contact us. It is not right for you to be encouraged to suffer silently. We, at Nour, will do our utmost best to help you in whatever way possible. Muslims are taught, “Whoever among you sees an evil action, let him change it with his hand (by taking action); if he cannot, then with his tongue (by speaking out); and if he cannot, then with his heart (by hating it and feeling it is wrong), and that is the weakest of faith.” [Muslim].