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Abu Dhabi, UAESunday 18 November 2018

Has it really come to the stage where secular courts are providing better protection for Muslim women undergoing divorce?

This week's High Court ruling in the UK highlights the failure of some spiritual leaders to protect the sanctity of marriage, writes Shelina Janmohamed

Muslim women visit the Jama Masjid mosque in New Delhi on the day India banned the triple talaq. Prakash Singh / AFP
Muslim women visit the Jama Masjid mosque in New Delhi on the day India banned the triple talaq. Prakash Singh / AFP

Marriage is brilliant, except when it's not. We look to it as the fulfilment of our fairytale dreams and children might flourish in its warm embrace. And we use legal frameworks to give solidity to our human desire for coupling.

Yet our societies and spiritual leaders are often found to fall very short of providing the right kind of legal framework to support us in our marital endeavours – and to give us a graceful exit when needed.

This is the case across all religions and cultures but as a Muslim woman, it feels particularly galling when I see the horrendous consequences of these attitudes and practices on Muslim women, under the claim that it is Islamic and that for Muslim women to challenge it is a betrayal of Islam and constitutes being a bad Muslim woman.

I know that even writing this piece might open me up to accusations of opposing or denying Islam. That’s not the case. I simply want the unfairness to end and for the sanctity of marriage to be demonstrated in actions, not just words.

Such challenges are even harder in countries where Muslims are minorities because it leaves Muslim women making difficult choices about whether to challenge such decrees, which might add fuel to the broader narrative used to demonise Muslims more generally.

It is one of the reasons why the Indian government’s move to ban triple talaq has been so contentious. Islamic law is enshrined in Indian law so this interference is seen as fuel by the government to satisfy a Hindu nationalist agenda, in the process criminalising Muslim men and conveniently turning a blind eye to the miseries women in India face more generally, a country recently named by the news organisation Thomson Reuters as the worst country to be a woman.

Last month a woman in India who was campaigning for an end to triple talaq was denounced by a Muslim cleric, who issued a fatwa against her, calling for her to be banned from receiving medicine if she fell sick or funeral rites if she died.

Despite such complicated socio-political conundrums facing Muslim women, it does sometimes seem to be secular law that offers recourse.

This week in the UK, a court ruling created a shift in the way Muslim women navigate divorce, even if no civil marriage has been conducted, which could have implications for thousands of Muslims in the UK and allow the possibility of laying claim to a share of assets to the marriage.

A high court judge decided the 20-year marriage of Nasreen Akhter and Mohammed Shabaz Khan fell within the scope of English matrimonial law, even though they never underwent a civil ceremony.

The judge declared the nikaah, or Islamic wedding ceremony, constituted a marriage, suggesting that there was a form of contract, even though nikah has been declared legally non-existent in previous cases.

Since a nikaah conducted in the UK is currently not recognised as a legally valid marriage, many Muslim women have found themselves left without the protection of the law in the case of divorce, death or a husband remarrying, either unaware that they have no legal protection or on the promise of a civil marriage which never materialises.

This is sometimes justified within Muslim communities, who say the Islamic marriage is the only one necessary.

All of this seems rather ironic as the husband in this case said they were "only" married under Islamic law and therefore there was no relationship of signficance.

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Read more:

‘Triple talaq’ divorce not legal in EU, top court rules

Drive to get UK Muslims to register marriages

UAE family matters: how to protect your assets in a divorce

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Whatever the political or legal backdrop, has it really come to the stage where secular courts are providing better protection for the rights of Muslim women than the Muslim community itself? Doesn't it make a mockery of claims about the sanctity of marriage? Where are the spiritual leaders in charge of the way marriage is managed in Muslim families – and this is not just a problem in minority Muslim countries – who should be fixing these problems?

Instead, we have cases like that of the mother of a teenage girl, jailed by a British criminal court in May for forcing her daughter to marry an older man who had raped her at the age of 13. Or the Sudanese teenager sentenced to death for killing the man her father forced her to marry after the husband invited three men to help him rape her. Or the Turkish body Directorate of Religious Affairs, or Diyanet, which issued a fatwa declaring couples could get divorced by phone call, fax or text message.

The spirit of marriage in Islam is one of dialogue, mediation and consultation. It is mind-boggling that you could be at the supermarket handing over your credit card to pay for groceries when a Whatsapp arrives to tell you that your marriage has ended.

And that's even before you consider what kind of impact such disregard for the seriousness of marriage and family would have on the children. Imagine you are a small child playing happily, only to be told your your father has divorced your mother by declaring talaq three times and life as you know it is over.

Instead of being outraged that women are fighting this imbalance and being forced to take matters into their own hands, clerics and lawmakers need to start thinking about how the implementation of the law really does uphold the spirit of marriage.

Shelina Janmohamed is the author of Love in a Headscarf and Generation M: Young Muslims Changing the World