The split in South Africa’s Muslim community over the Muslim Marriages Bill is deepening. The Bill seeks to regulate Islamic marriages.
In recent weeks unnamed groups have handed out pamphlets in mosques and sent out text messages and emails to community members, calling on them to “oppose the Kufr (unbeliever’s) Bill.”
This week the Muslim Lawyers’ Association also came out in staunch opposition to the Bill, which is being processed by Parliament. In a submission to the South African Law Reform Commission, the association calls the Bill “unconstitutional at its core”, adding that it is “fundamentally opposed to the Bill” because it “alters Islamic law through impermissible state regulation”.
The association opposes the adjudication of Muslim marriage disputes by secular courts and argues that the Bill seeks to alter Muslim personal law. Its position is supported by, among others, the Muslim Women’s Association and the Majlis, which is the religious authority in the Eastern Cape.
But Waheeda Amien, a member of the Recognition of Muslim Marriages Forum, argued that opponents of the Bill feared the erosion of patriarchal power. “The main reason that this Bill is being proposed is that many men do not honour their obligations under Sharia law,” Amien said. “They fail to maintain their wives and children, they abuse their wives, they talaq (divorce) their wives arbitrarily and without notice and they enter into polygamous marriages without being able to treat their wives equally.
“The Bill seeks to ensure that such rights abuses are discontinued within our community. For example, the Bill requires a man to apply to court if he wishes to take a subsequent wife. The reason for this is to ensure that the husband can show that he can treat his wives equally, as required by the Qur’an.”
Amien insisted that the association’s claim that the Bill is not Sharia-compliant was baseless. “It seeks to regulate Muslim marriages within a Sharia framework,” she said. If women approached the Ulema (Islamic authorities) for help and failed to get it, they had no means of enforcing the law, she said.
Jennifer Williams, director of the Women’s Legal Centre, said that women suffered daily because of the lack of enforceable legal remedies and reform was urgently needed. “It is preferable to develop the law on these marriages in holistic legislation passed by Parliament than for the courts to do it piecemeal.” Williams said that women often approached her centre facing eviction “with only the clothes on their back. As their marriages are not recognised, they cannot approach the courts for a divorce, redistribution of assets or the right to stay on in the ‘marital’ home.”
But the association’s attorney, Yousha Tayob, said: “We don’t want Muslim marriages regulated and determined by non-Muslim people. [They] can never have an understanding of Sharia law. It’s not that we don’t recognise that there are problems, but this Bill will not cure them.”
Tayob said the fact that religious figures of authority made decisions on marital issues without having women’s rights in mind was “a problem that lies with individuals”. But this is based in “extreme idealism”, argued Moulana Taha Karaan of the Muslim Judicial Council. “It is admirable, but ignores the fact that the realism of Islamic law is that you need enforceability. We don’t live in a Utopia.”