KNOWING OUR RIGHTS - Women Living Under Muslim Laws

363 Pages·2006·1.57 MB·English

KNOWING
OUR
RIGHTS
Women, family,
laws and customs in
the Muslim world
This handbook is an essential resource for those taking a critical and questioning approach to
rights, laws, and constructions of womanhood in Muslim countries and communities and beyond
Third edition
© Women Living Under Muslim Laws, 2006
First published 2003 in paperback
by Women Living Under Muslim Laws
PO Box 28445
London N19 5NZ, UK
Printed and bound by The Russell Press, Nottingham, UK
Cover design by
1

CONTENTS
page: page:
Update 2003-2006 Chapter 6:
2 a) Introduction to the 2006 Edition Types of Marriages
2 b) Major Legal Reforms 2003-2006 197 a) Polygyny
3 c) Family Law Reform Trends 2003-2006 213 b) Mut’a, Concubinage, and Common Law Marriage
7 Acknowledgements Chapter 7:
217 Maintenance
8 Glossary
Chapter 8:
13 Abbreviations 229 Status of Children
14 List of Statutes Chapter 9:
Dissolution of Marriage
243 a) Dissolution of Marriage – An Overview
Chapter 1: 249 b) Muslim Laws on Dissolution – An Overview
Introduction 251 c) Mubarat and Divorce by Mutual Agreement
15 a) Women Living Under Muslim Laws and the Women 255 d) Talaq
& Law in the Muslim World Programme 267 e) Talaq Tafwid (‘Esma and the Delegated Right of
19 b) International Synthesis of the W&L Programme Divorce)
273 f) Khul’
281 g) Other Forms of Dissolution for Women
Chapter 2:
293 h) Dissolution on Equal Grounds for Women and Men
Laws, Legal Systems and Change
27 a) Our Defi nition of Terms
31 b) Constitutional Law, CEDAW and International Chapter 10:
Human Rights Laws and Norms Matters Related to Dissolution of
33 c) Laws and Social Contexts Marriage
36 d) Constitutional and Legal Frameworks 301 a) Idda and The Waiting Period
311 b) Financial Rights and Settlements
Chapter 3: 331 c) Hilala (Intervening Marriage)
337 d) Custody and Guardianship of Children
Marriage Requisites
59 a) An Overview
65 b) Capacity Annexe 1:
77 c) Consent 348 Countries covered by the W&L Research
87 d) Forced Marriage and Choice in Marriage
95 e) Capacity to Marry - Other Prohibitions Annexe 2:
109 f) Witnesses and Mahr (Dower) 349 List of Organizations
Chapter 4: 352 Bibliography
117 Child Marriage
358 Index
Chapter 5:
Marriage Contracts
133 a) Registration and Validity
147 b) Marriage Contracts and Registers
153 c) Inherent Rights and Responsibilities
167 d) Negotiated Rights and Responsibilities
179 e) Mahr (Dower)
189 f) Other Payments and Exchanges
Women Living Under Muslim Laws
UPDATE 2003 - 2006
introduction to the 2006 edition major legal reforms 2003 – 2006
Just like the societies that they shape and refl ect, Five countries included in the original Handbook
laws are constantly changing in both their texts stand out as having made signifi cant changes to
and implementation. WLUML cannot undertake a family laws: Algeria, Egypt, Fiji and Morocco have
fresh Women & Law in the Muslim World action- seen largely positive reforms, while amendments
research Programme (W&L) (see p. 15) every few in Malaysia have been severely criticized by local
years but we recognize that to be truly useful for women’s rights activists. Minor changes have taken
women’s rights activists, we need to make sure place in Iran, Nigeria and Sri Lanka, all positive.
major changes are accommodated. This edition
Algeria: In February 2005, a Presidential Ordinance
covers major changes in the period 2003-2006. We
introduced numerous changes to the 1984 Code
are currently examining the possibility of making
de la Famille which amended, supplemented and
this Handbook available electronically, which
repealed about 35 previous provisions on major
would also allow us to update it without the cost
aspects of family law following recommendations
of printing new editions. Meanwhile, the Handbook
from the offi cial Boutern Commission, and a major
is now being translated into several languages,
public campaign by the 20 ans Barakat! (20 Years
including Arabic, Bahasa Indonesia, Farsi, French
is Enough!) coalition of women’s organizations.
and Russian indicating that it has proved a useful
resource for those who are promoting positive Egypt: The Egyptian Parliament passed Law No.
reforms in family laws as well as those who are 1 of 2000, introducing a number of procedural
resisting regressive change. amendments in matters of child maintenance,
family courts, access to divorce for customary
In this updated edition, we have focused on
marriage (al zawaj al urfi ) and, most controversially,
significant changes in texts of laws in some
women’s right to divorce by khul’. Inexplicably,
countries where the original W&L took place. We
the government has not gazetted accompanying
have included changes in Egypt because although
guidelines. The disappointing outcome of the
there was no W&L project in that country, we
amendments regarding khul’, particularly the
included Egypt and its laws in the original edition as
remaining scope for patriarchal judicial discretion,
they have long been regarded by other systems as
has been documented by women’s groups (see
a benchmark in family law. We have incorporated
Bibliography, p. 352).
new provisions in both the narrative overviews
and law tables as well as updating the section on Fiji: Fiji’s Family Law Act 2003 entirely replaced
constitutional and legal frameworks (see p. 38). previous scattered provisions under the colonial
But we have not changed information regarding Matrimonial Causes Act and English Common
customary practices (which requires an intensive Law relating to annulment and divorce as well as
process of fi eld research) and implementation of maintenance and property settlements, with a
laws, nor have we changed currency exchange strong focus on protecting children’s rights. The
rates. passage of the Bill was delayed by some three
years following the 2000 coup d’etat. The new law
Additionally, there have been many developments
came into effect only in December 2005 and it is
in Muslim contexts not covered by the original W&L
therefore too early to assess its impact and how
(as well as migrant contexts such as Canada),
the courts are implementing it.
which we are including below as part of our
discussion on important recent trends in family Malaysia: In 2001, the Malaysian government
law reform. proposed a standardized Islamic Family Law for
all of Malaysia’s 13 States. Between 2003-2005,
various States used this as a basis to amend family
2 Knowing Our Rights: Women, family, laws and customs in the Muslim world
Women Living Under Muslim Laws
3
laws, ignoring protests from deeply disappointed of the relationship between the spouses and
women’s rights activists. Although passed by the between parents and children. Because ultimately
Senate in December 2005, the IFL has not been all aspects of family law are interlinked (see p. 34),
gazetted in the Federal Territories following these mere tinkering with even numerous amendments
protests, and fresh (more positive) amendments could not bring about suffi cient change. This
are now being discussed with representatives of understanding also underpins reform efforts in
women’s groups. Women’s groups have already South East Asia, for example. In Indonesia, in
documented the injustices suffered by individual October 2004 the Indonesian Department of
women due to the amendments. Religious Affairs produced an alternative draft
to the Compilation of Islamic Laws (KHI) that
Morocco: Morocco’s new Moudawana, introduced
embraced gender equality.
by Parliament in February 2004, is an entirely new
law, completely repealing the previous 1957 family But in many contexts, complete overhauls have not
code. The reforms had strong support from King yet been possible, and modifi cations have varied
Mohamed VI and saw widespread public debate from very substantial (Algeria), to signifi cant
and mobilization by women’s groups. The success (Egypt, Malaysia), to those focused on single issues
of the reforms now depend upon changing the (Iran – age of marriage; Sri Lanka - mata’a; Syria
attitudes of judges and adouls (public notaries) – custody). In some systems where reform has yet
who implement family law, and offi cial guidelines to happen, single-issue campaigns continue such
about the new provisions have yet to be released as the growing public debate in Yemen regarding
although the King has promised a public awareness raising the age of marriage. In other systems,
campaign. major reforms have been introduced in areas
indirectly linked with family laws, such as the
federal Child Rights Act of 2003, which has raised
the age of marriage.
Family law reform trends 2003 - 2006
Across Muslim contexts, both majority and Where new codes or major changes have been
minority as well as those governed by laws based introduced, all have been justifi ed by referring
on Muslim laws or laws based on other sources, to changed social conditions. King Mohamed
several clear trends have emerged in the period VI, while addressing Parliament on the new
2003-2006, which no doubt share features with Moudawana, stated that it responds to the
family law reform globally. legitimate expectations of the Moroccan people,
and takes into consideration the spirit of the
Overall, there is a trend towards codifi cation and
modern era and the imperatives of development.
the sweeping overhaul of the previous basis for
The Algerian Ministry of Justice, in a public
adjudication in family law. From Morocco to Fiji,
explanation of the motives behind the reforms,
from the Gulf States of the UAE and Bahrain to
commented that the family code must mirror the
francophone African countries such as Benin,
social, economic and cultural development of the
Chad, Mali, and Niger, entire new codes have
society. In Bahrain, the government hopes a new
been introduced or await final passage. The
codifi ed family law will reduce divorce levels by
Women’s Petition Committee in Bahrain hopes
bringing greater harmony into the family. Many
that codifi cation will introduce the rule of law in
systems that have introduced positive reforms
family matters and end the arbitrariness of current
or are in the process of doing so, have noted the
judicial decisions. Judges, they say, are frequently
need to harmonize family laws with more recently
related to male petitioners and to each other,
introduced constitutional provisions guaranteeing
making it particularly hard for women to secure
gender equality.
justice.
In addition, systems based on Muslim laws have
Where entire new codes have successfully replaced
also used a dual reference point for the new,
existing laws (Fiji, Morocco), it was recognized that
more gender equitable provisions. From Morocco
there was a need to change the basic understanding
to Indonesia, offi cial reform efforts have insisted
Women Living Under Muslim Laws
that the changes are true to the spirit of ijtihad provisions enabling Muslim family matters to be
(see p. 29), and Islam’s principles of tolerance dealt with by self-appointed ‘Shariat Courts’. In
and jurisprudence’s recognition of ‘the social both Morocco and Syria, public signature campaigns
good’; at the same time they emphasize national forced continued debate when the reform process
commitments to international human rights became stalled. The need to build public support
obligations. for reform was clearly illustrated in Indonesia,
where the Department of Religious Affairs was
Resistance to positive reform has characteristically
obliged to withdraw the proposed Counter Legal
come from extreme right-wing groups who
Draft. As there had been no campaign to build
use ethnic and/or religious identity to mobilize
public support for the offi cially-sponsored reform,
against change towards more gender equitable
there was no means of countering opposition from
provisions. In Fiji, Church groups insisted ‘women
religious conservatives.
are followers of men’ and that the Bill, which uses
gender-neutral language throughout, was thus A further, highly local, factor contributed to the
anti-Christian and anti-Fijian. In Benin, strong success of the sweeping reforms in Morocco.
political reaction from both Catholic and Muslim King Mohamed VI’s role as Amir-ul-Momineen
groups has prevented the promulgation of the (Commander of the Faithful), a constitutionally
New Family Code, while in Chad, Guinea <is recognized role as having supreme authority in
Aissatou from G-Bissau or plain Guinea?), Mali and matters of religion, meant that he could assert that
Senegal, Muslim political groups have demanded the bill itself was sacred and therefore approval
separate laws for Muslims and Christians. With the by Parliament was obligatory. This did not sway
growing crisis in neighbouring Iraq, family law in extreme opponents of the new Moudawana, but it
Syria is increasingly being seen as a bastion of certainly helped to give many conservative citizens
Sunni Muslim dominance and changes in 2003 to and politicians the necessary encouragement to
custody provisions were watered down and made agree with the change.
through Presidential decree rather than subject the
Gender-neutral language has been a common
reform to Parliamentary debate. In Algeria, a last-
feature of all successful and on-going reform
minute change after the government succumbed
efforts, and in several systems the rights and
to pressure from religious conservatives, meant
responsibilities of the spouses are now gender-
the concept of wali was retained, which was
neutral. This is particularly visible in provisions
a major blow to efforts to change the code’s
regulating ‘obedience’, divorce and financial
conceptualization of adult women as legal minors.
matters. The latter refl ects the increasing numbers
In Egypt and Fiji, the media often played a highly
of women engaged in the formal sector and also
negative role, circulating misogynist myths about
recognizes women’s economic contribution to the
the proposed reforms and repeating right-wing
family through unpaid domestic labour. In both
attacks on individual campaigners as well as claims
Fiji and Morocco, there was also a conscious effort
that family law reform was ‘Western’ and would
to change overall what was seen as degrading
lead to the breakdown of the family.
language that characterized women as dependent
Where reform efforts have been successful they and incapable of independent reasoning.
have, in all systems, been the result of major
But some are raising concerns that in societies
and often very lengthy campaigns by coalitions
which are still overwhelmingly patriarchal, selective
of women’s groups, which pointed out through
gender-neutral language can lead to substantive
documented case studies that existing unjust family
discrimination and injustice against women. This
laws were in fact a cause of family instability. In
is the analysis, for example, of amendments in
Canada, collaboration between some mainstream
Malaysia which have given men access to divorce
women’s groups, and both secular and faith-based
for harm on the grounds of ill-treatment and rights
women activists from the Muslim community
to their wives’ property on divorce. Some are
combined with international feminist solidarity
now arguing that if women are to be given equal
forced the Ontario Government to withdraw
fi nancial responsibilities in the family, they must
4 Knowing Our Rights: Women, family, laws and customs in the Muslim world
Women Living Under Muslim Laws
5
also be given equal inheritance rights. discretion within carefully framed limits. From this
it is clear that a growing focus of family law reform
Meanwhile, Morocco has attempted to re-cast mahr
will be efforts to change judicial attitudes.
as purely symbolic and end the interconnection
(discussed in many sections of this Handbook) As part of the overall trend towards greater gender
between mahr, ‘obedience’, a wife’s sexual equity, access to divorce has been widened for
‘duties’ and maintenance. However, maintenance women, whether through the introduction of
provisions have not been completely purged of provisions intended to require lower standards
their link to ‘obedience’, and it remains to be of evidence such as ‘irreconcilable differences’
seen whether in practice judges will, for example, (Algeria, Morocco) and ‘irretrievable breakdown’
reduce a woman’s fi nancial compensation when (Fiji), or through recognition of talaq tafwid in the
she divorces for ‘irreconcilable differences’ if she law (Morocco), or through accepting that khul’ does
was seen as ‘disobedient’ by leaving the marital not require the husband’s permission (Algeria,
home – even following violence by her husband. Egypt, UAE, Azad Jammu & Kashmir – Mst. Sarwar
Jan v. Abdur Rehman, Appeal No. 16/2003 AJK
Giving divorced women an equal or more equitable
Shariat Court). There is also an attempt to offer
share of assets acquired during the marriage is
spouses ways to mutually agree to dissolve their
one of the most hotly contested areas in recent
marriage without having to specify fault; Fiji
family law reform in the systems covered here,
has ended adversarial divorce and Morocco now
continuing a pattern seen during the Turkish
provides a procedure for mubarat.
Civil Code reform process a few years earlier. A
common fi rst step towards greater justice in this There are other noticeable trends which all
area are new provisions which enable a couple refl ect a growing recognition of women’s rights
to choose their matrimonial property regime as human rights and women’s legal equality with
(separate, communal or joint marital property); in men. These include a steady rise in the minimum
Morocco, offi cials are now obliged by law to explain age of marriage towards the international norm
these possibilities at the time of marriage. But in of 18 years for both men and women, and
Malaysia, conservatives have suggested that a relaxation or elimination of the concept of marriage
husband should have a right to claim part of his guardianship (wali) for women. One of the most
wife’s earnings as harta sepencarian (property outstanding features of Algeria’s reformed Code de
acquired during the marriage) because by giving la Famille is the acceptance that divorced women
permission for his wife to work he has contributed who have custody can also be the guardians
to her earnings. The growing battle over property of their children (see p. 341). However, within
rights seems to based on the recognition that these marriage Algerian fathers remain the ‘natural
rights are central to women’s autonomy and ability guardian’, and persistently inequitable provisions
to access options in other areas of family law. regarding custody and guardianship undermine
the overall claim to gender equality in Morocco’s
This area also raises conceptual and strategic
new Moudawana.
challenges for rights activists. On the one hand,
there is a need to recognize that women should Progress in regulation of polygyny has been
own and control the fruits of their labour on a extremely patchy. The spirit of Morocco’s new
par with men in a context of women’s increasing Moudawana is to make polygyny all but impossible
participation in business and the formal workforce and Algeria has tightened controls. But the
as well as growing recognition of women’s input promotion of polygyny as a ‘right’ of Muslim males
into the informal sector and family income- and a ‘solution’ to social problems is a major
generation. And on the other hand, there remains feature of right-wing religious political groups, from
a need to protect those women who do not have Canada to Indonesia and Uzbekistan. In Malaysia,
the capacity or are not allowed to work outside the regulation has actually been weakened, while in
home, or who prioritize domestic responsibilities. francophone West Africa controversy regarding
Fiji’s new Family Law Act attempts to balance these polygyny (Benin seeks to establish monogamy
diverse needs by allowing for considerable judicial as the norm and Guinea to ban it altogether) has
Women Living Under Muslim Laws
been at the center of successful obstruction of the are party to all cases (Algeria, Fiji, Morocco), and
introduction of new codes or reforms. by including sweeping powers of enforcement,
recovery, arrest and fraud prevention as part of the
Meanwhile, strict regulation can have potential
family judge’s jurisdiction (Fiji). Growing problems
drawbacks. Moroccan activists praise the new
of confl icts of laws caused by increased migration
provisions regulating talaq as ‘draconian’. But
under conditions of globalization are recognized,
while instant, irrevocable divorce may not longer
and specifi c attempts made to clarify jurisdiction
be legal, an unintended possible outcome may
and provisions governing those married or divorced
be that men avoid some of the fi nancial burdens
abroad or whose cases have been heard by foreign
of talaq by forcing their wives to opt for divorce
systems (Fiji, Morocco).
for ‘irreconcilable differences’. Here, judges have
greater discretion in the matter of compensation Very substantial parts of the new provisions in Fiji,
and patriarchal attitudes may dictate that women Algeria and Morocco relate to detailing procedure
simply end up with little fi nancial compensation. for matters such as validity of marriage, divorce,
Moreover, strict regulation of practices such as maintenance, and fi nancial settlements. However,
unregistered marriages, polygyny, and instant the latter two are completely silent on the relief
talaq becomes less meaningful if it is not backed by available to women in the event that procedure
clear punishments, as in the case of Morocco’s new is not followed by the responsible authorities or
Moudawana which contains virtually no punitive their husbands. Moreover, legal reform activists
measures. in Morocco are aware that a public information
campaign is needed to make the procedural
Several recent reforms and judgements appear
complex new marriage registration and divorce
to be part of a conscious effort to bring family
st provisions effective. This will require an on-going
law into the 21 century and to acknowledge
commitment from the state and campaigners.
changing science as well as social issues. Algeria’s
Meanwhile, fundamentalists are strategically
amended Code now explicitly permits artifi cial
positioned in relevant ministries and public bodies
insemination for married couples, while Morocco’s
and are thereby obstructing the development of the
new Moudawana allows establishment of fi liation
Rules needed to accompany the new Moudawana.
by ‘all scientifi c means’ and DNA testing was hotly
Overall, it appears that procedural aspects of
debated in a landmark paternity case in Egypt.
family law will be a major focus of confl ict between
New requirements of pre-marital medical tests in
women’s rights activists and right-wing forces in
Algeria may be aimed at reducing the number of
the coming years.
divorces for impotence or even protecting women
from HIV-infected future husbands. However, in Cassandra Balchin, 2006
a context where fraud is easier for men who tend
to have greater social and fi nancial resources
than women, and where virginity remains socially
prized, such a requirement may be less option-
giving for women.
Finally, careful attention to procedural matters in
family law has been a positive aspect of recent
reform trends. Interim fi nancial relief orders,
particularly for maintenance and child maintenance,
are now explicitly provided for in Algeria, Egypt,
Fiji and Morocco. New provisions in the latter
three countries have also established specifi c
family courts in recognition of the fact that family
law requires a specialized approach and facilities.
State commitment to protection of the family is
also signaled by provisions that public authorities
6 Knowing Our Rights: Women, family, laws and customs in the Muslim world
Women Living Under Muslim Laws
GLOSSARY 7
ACKNOWLEDGEMENTS
As the largest and longest-running of all WLUML’s thanks are also due to language editor and indexer
collective projects, the Women & Law in the Muslim Kathleen McNeil for her sensitivity and ability to
World Programme has involved literally thousands work to an impossible deadline, as well as to Finn
of women and men, spanning over a decade and and Jason.
some 20 countries. Those involved have ranged
A synthesis and writing project of this magnitude
from participants in focus-group discussions, to
and complexity is simply not possible unless one
typists; from small, voluntary community-based
person has the vision, the passion, the skills – and
organizations to national non-governmental
the stamina – to see it through. For us, that person
organizations; from active networkers who
has been Cassandra Balchin. Far more than simply
conceived, planned and implemented the
coordinator of the editorial team, Cassandra has
Programme to outside experts who contributed
been organizer, motivator, designer, and drafter.
to country projects and the international synthesis.
Her skill as a writer and editor shines through
Warm thanks are due to each and every one of
many parts of this Handbook. Her experience as
these who shared in the gathering and analysis
a WLUML networker and activist gave shape and
of information in the belief that they would be
coherence to the collective, substantive decisions
helping to increase the options available to women
that collaborative writing entails. Put simply, her
in their contexts.
commitment to the Handbook and to its ultimate
Here we shall only be able to name individually goal of expanding women’s choices, brought this
those who have been part of a changing group enormous project to its fi nal fruition. From the
of networkers who have directly helped to shape WLUML network, a huge thank you.
this Handbook. These include participants in
Finally, we extend our thanks to the Andrew W.
the initial W&L Planning Meeting and the three
Mellon Foundation for many years of generous
W&L international synthesis meetings, many of
support for the international coordination of
whom also continued to provide feedback during
the Women & Law Programme as well as the
the drafting stages: Sherifat Hussein-Abubakar,
production of this Handbook, and to the many
Maryam Uwais, Marieme Helie-Lucas, Homa
other organizations that have over the years
Hoodfar, Pinar Ilkkaracan, Ayesha Imam, P. Imrana
supported the activities of the WLUML international
Jalal, Sultana Kamal, Sindi Medar-Gould, Vahida
coordination offi ce and networking organizations
Nainar, Kishali Pinto Jayawardena, Farida Shaheed,
that participated in the Women and Law in the
Salma Sobhan, Isabelita Solamo-Antonio, Hajara
Muslim World Programme.
Usman, and Faizun Zackariya; as well as Hanadi
Taha and Lynn Freedman for supplementary
feedback at the fi nal crucial stages. Also to be Women Living Under Muslim Laws
thanked are Suhraiya Jivraj, Shaheena Karbanee,
February 2003
Sarah Masters and Caroline Simpson for signifi cant
assistance.
However, there was an additional group who not
only participated in various synthesis meetings
but who also took on concrete responsibilities
and provided the essential input that brought
this Handbook into its current shape. Without
their dedication and insight, this Handbook would
have remained a dream. These include Chulani
Kodikara, Fatima Seedat, Salbiah Ahmad, Sohail
Akbar Warraich, and Sume Epie-Eyoh. Very special
Women Living Under Muslim Laws
GLOSSARY C
Complete separation of property regime
Across Muslim countries and communities, there are A property regime in which each spouse retains ownership of
multiple spellings and different words for essentially the property they bring into the marriage and property inherited
same thing. For example, a judge or other authority who during the marriage, as well as retaining individual control
hears cases concerning Muslims is known variously as a over any earnings or wealth they create during the marriage,
cadi/kadi/kazi/kathi/khati/qazi/quazi/qadi/qadhi. In general, with all assets marked as belonging to a specifi c spouse.
the problem arises from the challenge of transliterating and
translating Arabic words into local languages. In the text of Communal property regime
this Handbook, we have opted for either the version most A property regime in which the spouses surrender all
commonly accepted or that which we believe would be most individual ownership of property brought into the marriage
widely recognized, without implying that there is any one and created during the marriage, and which is to be divided
‘correct’ spelling. equally on dissolution.
Consanguinity
A Related by blood or origin; descended from the same
ancestors, e.g., mother, grandson.
Ahsan
A form of talaq, regarded as the most approved: a single,
revocable talaq. D
Ahadith/Hadith Darar Syarie
Reported sayings of the Prophet Muhammad. Harm or danger in respect of religion, life, body, mind or
property. Used in the context of fault-based divorce as a
Affi nity grounds for divorce (Malaysia/Singapore).
Related by marriage, e.g., mother-in-law, son-in-law.
Decree nisi
Alim certifi cate A provisional decree; in relation to divorce it effects a
Qualifi cation regarding basic knowledge of Muslim laws; from conditional divorce which becomes absolute on the
‘alim’ – one who has knowledge. occurrence of a prescribed contingency (usually the passage
Anak dara of a certain amount of time).
Woman who has not had sexual intercourse, whether married Dharar
or not (Malaysia/Singapore/Indonesia). Harm: grounds for the wife to seek judicial divorce.
Ayat Dower
Verse of the Qur’an. see mahr
Dowry
B Trousseau, or the goods (and cash) brought into the marriage
Baligh by the bride. In some systems, depending on the property
Age of puberty. regime, the dowry remains the absolute property of the
wife.
Bain
Irrevocable (as related to divorce).
E
Bain kubra/Baynuna kubra
The ‘greater fi nality’: parties having been divorced from each ‘Esma/Ismaa/’Usma
other three times are not free to marry each other again until The common term used for the delegated right of divorce/
the former wife has undergone a consummated, intervening talaq tafwid in Arabic-speaking communities.
marriage (hilala) to another man. Exchange marriage
Bain sughra/Baynuna sughra Exchange marriage involves the marriage between the
The ‘lesser fi nality’: parties divorced from each other would brother and sister of one family and sister and brother of
have to undergo a fresh marriage contract if they wished to another family. In extreme cases, a man may pledge any
remarry each other. future daughter to his in-laws in exchange for his own wife.
Exchange marriages imply that the fate of one couple is tied
Bride-price to the fate of the other couple, so that if one couple divorces,
Money given by the groom or his family to the bride’s family the other couple automatically has to divorce even if they
in exchange for her hand in marriage. are happy together. Exchange marriages are often among
relatives, compounding the associated problems. Known as
Bid’a/Bida’a/Bidat
berdar in Turkey, badal in Jordan and Palestine, and watta
Literally, a disapproved innovation. Used with reference to a
satta or addo baddo in Pakistan.
talaq pronounced three times in one sitting or one majlis.
Ex parte
Court proceedings in the absence of the respondent party,
where the respondent has failed to appear for hearings.
8 Knowing Our Rights: Women, family, laws and customs in the Muslim world
Women Living Under Muslim Laws