Two, Three or Four: Polygamy in Islam
Immigration spokesman Karen Shadd-Evelyn said only one marriage is recognized in Canada. Under Islamic law, a Muslim man is permitted to have up to four spouses, many who join their husband and his main wife in Canada as landed immigrants or visitors. Polygamy is illegal in Canada, but recognized in the province, he said.
Toronto city councillor Rob Ford said he's calling on Ontario Social Services Minister Madeleine Meilleur to review the polygamous marriage policy since it contravenes Canadian laws. Brenda Nesbitt, the city's director of social services, said polygamous spouses can apply individually and her officials may never know. More than Sun readers sent e-mails yesterday and phoned the newsroom to complain of the use of taxpayers funds. There are eight grounds of divorce; i. The court construes this to be fair because the divorce is demanded by the wife and not the husband.
This attitude highlights the inequality that exists between the husband and the wife. Discussion There was mention of a Malaysian case in which a woman was unable to obtain a divorce by fasakh even though the husband had been convicted of causing grievous bodily harm to her and had been sentenced to 10 years imprisonment.
The woman was finally granted a divorce by talaq after the husband agreed to pronounce talaq upon her agreeing not to claim for mutaah and iddah maintenance. Tuan Haji Mohd Naim a Malaysian Syariah Court Judge said that this is unfortunate and strange since it should have been sufficient for the Court to uphold the application for fasakh. In cases of failure by the husband to maintain the wife, in one of his judgements, he has shifted the burden of proof to the husband to prove that he has been providing maintenance for the wife, instead of the wife having to prove that the husband has not been providing maintenance, even though it was the wife filed the divorce application.
Halijah Mohammad, Singapore The law provides for the payment of mutaah compensation and eddah maintenance for waiting period of three months by the husband to the wife upon the divorce. If the husband could prove that the wife was nusyuz disobedient , the husband has to pay only the mutaah.
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Quantum of mutaah is based on the number of days of the marriage. It started off with one dollar per day, some years ago, was subsequently increased to one dollar fifty cents and recently increased to three dollars per day. There are two points of view on the assessment of quantum.
For long-term marriages, the rate of three dollars per day can result in an enormous for husbands with moderate means, but on the other hand, for rich husbands, three dollars per day is a very pathetic little sum. The issue in Singapore is still controversial - whether to fix the sum to three dollars per day or get another formula.
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There are also those who argue that domestic maids in Singapore are being paid more than three dollars per day, so why should the wife be paid less? The law also provides of the division of matrimonial assets upon divorce. In Singapore, the division appears to be fairly generous to the wife as her non-financial contributions are also taken into account, as well as the welfare of the children in her custody.
Ratna Batara Munti, Indonesia In Indonesia, the wife has no right for maintenance if the husband could prove that she was nusyuz. Nusyuz of the wife has always been connected with their role as sex provider. Only those wives who serve their husbands sexually will receive mutaah. Similarly, in the case of mahar dowry , the payment would be made if the woman has served the husband sexually in their marital relationship; otherwise the husband would not consider it his duty to pay the mahar.
The law provides for the division of matrimonial assets; however, the wife often has problems in providing the evidence regarding the properties, due to the confidentiality of bank accounts and the fact that the properties are often registered in the sole name of the husband. Isabelita Solamo Antonio, the Philippines The general property regime for Muslims is that of separation of properties.
It is also clearly defined that her income during the marriage is also hers. However, on the other hand it is unfavourable to women when there is a question of common properties, and the women lack the evidence to claim a share of the common properties.
The other problem is that even though the wife has the legal right for maintenance by the husband during the marriage, in reality, the women often contribute a great deal towards the household expenses. In the case where the wife is pregnant at the time of the divorce, she should be supported by the husband for a period of up to two years after the divorce. Nik Noriani Nik Badlishah, Malaysia In Malaysia, if the wife is found nusyuz by the court, she is denied the three months of nafkah eddah.
According to her, in a case reported in from the state of Perlis, Piah v.
Che Lah, where the Court found that the wife was nusyuz, it dismissed her claim for eddah maintenance but allowed her claim for mutaah. In many cases, there is a large disparity between the amount of mutaah claimed by the wife and the amount offered by the husband -- where the wife would claim a very high sum for mutaah while the husband would offer a very small sum. The tendency of the Courts is to award a rather low sum for mutaah. The problem is that nowadays the wife often gives double contribution as she does the housework as well as contribute towards the financial expenses.
Section 83 enumerate several circumstances where the mother loses her right to custody of a child, including where the mother has remarried and her remarriage would affect the welfare of the child. The paramount consideration is supposed to be the welfare of the child. However, it was pointed out during the discussion that mothers who were converts to Islam often face discrimination as there tend to be a perception that a mother who is a convert would be unable to raise the child according to the Muslim way of life. When it comes to the question of legal guardianship, the father is the primary guardian under the Islamic Family Law Act and enactments.
The previous provision in the Guardianship of Infants Act for non-Muslims also declared the father to be the primary guardian of his child. However, in , the Guardianship Act was amended to provide for equal guardianship rights for both father and mother. Unfortunately this amendment is not applicable to Muslims. In the meantime, there is an administrative directive issued by the government authorising Muslim mothers as well as other mothers to sign any necessary documents for the child e. Regarding financial support, under the law, the father is obliged to pay for the maintenance of his children.
The law provides for the court to take into account the financial means of father. However, in practice it is often difficult to produce the evidence to prove the financial means of the father.
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The law also allows maintenance order to be varied due to change in circumstances e. Problems of enforcement often arise where the husband is employed by his own family company or is self-employed. Hindun Anisah, Indonesia When the parents are divorced the legal provisions on custody are as follows; i the custody of children not yet mumaiyyiz or under reaching 12 years is the right of the mother. Regarding financial support, the father is responsible to pay for the maintenance of his children. However, the problem arises when the father has failed to pay maintenance and there is no enforcement officer to force him to do so.
Although it is possible for the mother to go to court for maintenance of the children, in many cases the mother could not afford to incur the legal costs involved in going to court. Halijah Mohammad, Singapore The civil and syariah laws state that the welfare of the child is a paramount consideration.
From the decided cases, physical custody is often granted to the mother as the Chief Justice has stressed the importance of the bonding relationship between mother and child. The court may either make an order for sole custody solely or for joint custody. In the case of joint custody, the care and control of the child is still with one parent, although the other parent will also be involved in the decisions related to the upbringing of the child.
The parent who does not have custody i. In Singapore, maintenance orders for Muslims are also within the jurisdiction of the civil Family Court. In the civil court, if both parents have their own incomes, then they both have the legal duty to provide maintenance for their child. Maruhom, the Philippines The custody of a child, either male or female, who is below 7 years old belongs to the mother or maternal grandmother, paternal grandmother, sister and aunt.
However, when a daughter has reached the age of puberty the law provides that she shall stay with the father and when a son has reached the age of puberty the law provides that he shall stay with the mother. Norma the paper presenter put forward the recommendation that the children daughters and sons should continue to be allowed to choose either to stay with the mother or the father after they have attained the age of puberty.
When it comes to guardianship, it is actually divided into three categories; i. The first type is usually given to the mother or other female relatives, while the other two types are by operation of law given to the father or male relatives. On the issue of maintenance, the father is responsible to provide maintenance for a child, in respect of his education, clothing etc until the age of maturity, unless the maintenance has ceased upon the death of the recipient or when the recipient commits any act which would give rise to disqualification to inherit or denial of support under Muslim law.
The amount of support shall be in proportion to the resources of the giver and the needs of the recipient. Discussion During the discussion session, one of the participants from Pakistan, Cassandra, explained that in Pakistan, the guardianship is with the father and the custody is with the mother. However, if the mother is a foreigner or convert to Islam not Muslim by birth then the custody will not usually be given to her. However, a few years ago in , there was a case when the court granted custody to the mother even though she was a foreigner.
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The father was given access to the child. In the year , a Japanese mother was given custody and the court allowed her to take the child back to Japan as the court gave consideration to the welfare of the child. Special presentation by Halijah Mohammad from Singapore This session is basically centred upon the efficiency of the Singapore Syariah court system, and the possibilities of its adaptability in other countries.
There are several basic factors facilitating the efficiency of the system in Singapore. Firstly, the physical size of the country is very small. Secondly, due to the physical size of the country, it is easy to control the population and to enforce court orders. A small number of Syariah judges are sufficient to deal with all the Syariah matters. This facilitates the efficiency of the counselling department. The main points to be noted may be summarised as follows:.
The Amendments to the law in introduced the office of Registrar, to enhance the efficiency of the existing system. Currently, two court presidents are assisted by one registrar. In looking at the legal reforms, the speaker, Halijah, reminded the participants that the larger socio-economic and political circumstances which are peculiar to Singapore must also be taken into account.
One important ingredient in this regard is the legal infrastructure. The problems that Singapore has to deal with, are thus different from those problems faced by other developing countries such as Pakistan. The government also has the political will to ensure the efficient administration of the Syariah family law and the smooth functioning of the Syariah court system.
Amina Wadud, Reform and Reinterpretation of Texts She explained that the work on reinterpretation of the texts is also a part of the reform movement. She stressed the need to understand the relationship between theory and practice. The theory or idea underlying a set of actions needs to be explained in order to understand rationale for the work or action.
Islam is a religion that emphasizes both right thought iman and right action amal. This integral relationship means that reform movements are not merely about making changes to policies and procedures and policies, but involve the question of how to re-conceptualize the meaning of Islam. Language is a special gift given uniquely to humans at the time of creation. The problem, however, is that every word has a wide spectrum of potential meanings. For example, the Arabic use of the male gender for the generic does not mean that God is male.
This framework creates a way of thinking about the world that is sometimes taken in a very narrow or literal sense which will naturally create contradictions. In the discourse on the actualisation of gender justice in society, therefore, language and the perception of language influence the understandings, conclusions, implementations and indications that arise from the actual living relationship between the males and females in society.
Therefore, understanding both the strengths and shortcomings of language is important in changing restrictive policies and laws. This is not a violation of the integrity of Islam but rather a broadening of the Islamic possibilities. In the case of gender justice, we have perpetuated within the tradition of Islam for 14 centuries the idea that women and men are distinct beings and that those distinctions indicate values in and of themselves.
Our choice is either to live within that limitation or to challenge that limitation as a product of human thinking that is not divine and therefore not only worthy of but in need of challenge until we open up the greater possibilities of what Allah has granted to us as agents. Firstly, the conceptions of gender rights in Islamic legal thought are neither uniform nor coherent.
Instead they are very contradictory and biased. Secondly, the conceptions of gender rights, as constructed by Islamic jurisprudence fiqh , not only negate and neglect the basic objectives of the Syariah, but are also unsustainable under the prevailing conditions in Muslim societies today. In fact they bear little relation to the present realities in the Muslim world. Firstly, if justice and fairness are indisputable objective of the Syariah, should they not be reflected in the laws on the rights each sex as well as the laws regulating the relations between men and women.
Why should the notion of justice not be reflected in these laws if it is a part of the Syariah? Secondly, can there be an equal construction of gender rights in Islamic law, and if so, what are the strategies needed to achieve it. Three preliminary points should be noted: Firstly, the distinction between Syariah and fiqh is emphasized. Syariah is the divine law revealed to the Prophet.
Fiqh, however, is not part of revelation but is a legal science that is developed with other branches of science.
Secondly, the premise is that gender rights are neither fixed, given nor absolute, but are created and deconstructed as well within the social and cultural contexts. Thirdly, Ziba approaches fiqh rules by examining their validity in the light of contemporary gender theories and realities. She also attempts to highlight that the male-centeredness of these rules has caused what has been called an epistemological crisis today. There are broadly three discourses in Islam. The first discourse is the traditionalist the discourse of classical fiqh texts. The second is the neo-traditionalist discourse development of legal codes in the 20th century.
Both are premised on various forms of gender inequality. The third discourse, the reformist discourse, is still in the process of formation, and is premised on gender equality. In classical fiqh texts, gender inequality is taken for granted.