UK Centre for Legal Education
A Teaching and Learning Manual
Shaheen Sardar Ali, University of Warwick, UK & University of Oslo, Norway
Ayesha Shahid, University of Hull, UK
Mamman Lawan, University of Warwick, UK & Bayero University, Kano, Nigeria
©2008 (UKCLE – 1st Draft Copy)
Introduction to this manual; its aims and objectives
This teaching and learning manual has been developed with the aim of supporting teachers and students interested in Islamic law in general and Islamic family law in particular both in Muslim and non-Muslim jurisdictions. It forms part of a series of manuals and materials including an Islamic law bibliography and glossary of Arabic and English terms developed for teaching and learning Islamic law. We suggest that prior to working with this document, readers look at the companion manual entitled: ‘Approaches to Teaching and Learning of Islamic Law: Sharing some national and international perspectives’ and ‘Course manual on Sources of Islamic law’.
The teaching and learning process in Islamic family law begins with an understanding of the sources of Islamic law and how these are applied in developing a coherent legal formulation on a particular topic/subject. The main difference between understanding ‘black letter family law’ and Islamic family law lies in the fact that whilst there is clarity regarding what constitutes a legal norm in the former, the latter is open to a variety of possible interpretations and outcome. Further, every course on Islamic family law has two distinct components: Sources and Principles of Islamic family law and, Codification of Family law under various law reform initiatives in the Muslim world at different historical moments and eras. It is therefore important to develop a clear grasp of the concepts and principles of Islamic family law in order to appreciate the intricacies of application and reform in the field.
Few higher education institutions in the UK offer Islamic law courses (as opposed to Islamic Studies) and that too as optional/elective courses. In Muslim jurisdictions however, Islamic law courses form part of the compulsory offerings at any law school but presented in a sterile, descriptive form. The need for a teaching and learning resource responding to the needs of constituencies seeking a critical engagement with the subject, cannot be overstated. The present manual attempts to contribute to filling this gap by introducing teachers and students to Islamic law through theory and practice in the area focussing on Islamic Family Law. It presents an overview of Islamic Family Law in its historical and contemporary aspects in the Muslim world from a comparative perspective. The module aims to familiarise students with the application of religious law in Muslim jurisdictions as part of the law of the state. It has been conceptualised adopting a "law in context" methodology aiming to address the demands of a growing number of UK students both Muslim and non-Muslim to acquire knowledge and expertise in Islamic law. No prior knowledge of Islamic law or Arabic is required.
Specifically the module aims for students to:
Understand and engage in the theoretical discourse regarding Islamic law. In particular, an understanding of the development of the principle sources of Islamic law in the area of family and property rights and its incorporation in state legislation.
Engage and present critical legislative and context-based analysis of issues relating to legal reform in the Muslim world and to identify principles of Islamic Family law in legislation of various Muslim countries covered in the module. Finally, the module also looks at application of Islamic Family Law in diasporic communities using the United Kingdom as a case study.
The module relies on English language scholarship and English translations of the primary sources of Islamic law i.e., the Quran and Hadith.
The course in this manual is designed as a half module that may be delivered over a teaching term of ten weeks. From our experience of running the course for well over 5 years at the University of Warwick, UK, we find that a two-hour lecture every week supplemented by a small group seminar every fortnight is normally sufficient to cover the themes outlined below. The course outline and materials are flexible enough to allow teachers to modify the themes covered bearing in mind the level of students, undergraduate/postgraduate. There is also the space to expand this to a full course delivered over 2/3 terms presenting the opportunity of discussing, evaluating and analysing more than one case study on law reform in the Muslim world as well as on Muslim diasporic communities in other countries of Europe, the USA and Canada.
This module is designed as a 10 week module. It is also important to make the point that when delivering the module to non-native Arab speakers and/or non-Muslims who are not familiar with Arabic terminology, it is a good idea to have students bring a copy of the glossary accompanying this manual to class. An exercise we have done ever since we introduced Islamic law at Warwick University, was for asking students to repeat after me, every Arabic word I used during the course of the lecture. I start by writing the word on the board, speak it slowly and ask students to repeat it at least thrice. Thereafter, one student volunteer keeps a list of all new Arabic words used in the lecture that day. The following week, we begin the lecture by repeating and reminding ourselves of the words learnt last week. This became quite a fun ‘game’ and students have counted 103 Arabic words at the end of the course and are proud of their new found skills in Arabic and no doubt sharing it with friends and colleagues.
Assessment methods.
In keeping with the challenging nature of the course, we do not recommend simple essay type questions year in and year out. We have therefore developed what we believe, and so do our students, that these assessments provide them with an opportunity to apply their skills in a more interesting, innovative manner. A list of suggested assessments are presented towards the later part of the manual. For a one-term course, we prescribe a 2 hour examination and an assessed research piece of 2500 words.
Materials.
The main textbook that we would recommend is Pearl, D. & Menski, W. Muslim Family Law 3rd edition 1998, London: Sweet & Maxwell. Having said that, it is suggested that we do not confine ourselves to the use of a single textbook for this module. E have produced below, required and recommended readings for each topic and make sure that these are available in the library. A detailed bibliography is included in this course outline to help with research for assessment as well as general interest.
Course Outline and Themes addressed in this module
I. Historical Overview and Sources of Islamic law.
II. Husband and Wife (I)
III. Husband and Wife (II)
IV Parents and Children.
V. Property
VI. Law Reform in the Muslim World
VII. Application of Islamic Family law to diasporic communities
1. Historical Overview and Sources of Islamic law.
Reading:
*D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet & Maxwell pp. 3-18.
*N.J.Coulson, A History of Islamic Law (1964) Edinburgh: Edinburgh University Press pp. 9-20
*H.R.Kusha, The Sacred Law of Islam (2002) Aldershot:Dartmouth/Ashgate pp. 13-50; 51-79
*M.A.Mannan (ed.,) D F Mulla's Principles of Mohammadan Law (1995) Lahore: PLD Publishers pp. i-xxii
*F. Rehman, Islam 2nd edition (1979) Chicago: The University of Chicago Press pp. 30-42; pp. 68-84
*A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource Book (2002) London: Zed Books pp.1-21
*W. B. Hallaq, “Ifta’ and Ijtihad in Sunni Legal Theory: A Developmental Account” in M.K.Masud, B. Messck & D. Powers (eds.) Islamic Legal Interpretation. Muftis and Their Fatwas (1996) Cambridge: Harvard University Press pp. 33-43.
*Taha J. al-Alwani, “The Crisis in Fiqh and the Methodology of Ijtihad” (1991) Vol. 8 The American Journal of Islamic Social Sciences pp. 317-337.
*M.Z.Siddiqi, Hadith Literature Its Origin, Development and Special Features (1993) Cambridge: The Islamic Text Society
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford University Press pp. 1-39
J. Burton, The Sources of Islamic Law. Islamic Theories of Abrogation (1990) Edinburgh: Edinburgh University Press pp. 1-14.
Lecture Notes:
The first two weeks of the course is devoted to providing an overview of the early development of Islamic law and emergence of the various schools of juristic thought in this legal tradition. Salient features of the 4 schools of Sunni juristic thought, the Hanafi, Maliki, Shafei and Hanbali will be explored as well as 3 main schools of Shia jurisprudence, the Athna Asharia, Zaidya and Ismailia. An important point to bear in mind in the teaching and learning of Islamic law is the fact that division of Muslims into Shia and Sunni impacts heavily on the understanding of sources of Islamic law by both sects and consequent development of jurisprudence. The initial lectures therefore need to explore a number of concepts highlighting these differences with concrete examples to set the discussion of Islamic law in it historical and ideological context. Lectures on the main sources of Islamic law i.e., the Qur’an, Hadith, Ijma, Qiyas as well as some juristic techniques including Ijtihad, Talfiq, Takhayur are appropriate moments to present these differences of interpretation. For instance, why do Shia and Sunni laws of inheritance give different shares to daughters in the absence of a male offspring. Why do Sunni schools of juristic thought require the presence of witnesses for a valid contract of marriage whereas Shia jurists consider it optional.
It is important to bear in mind that what is presented as teaching sessions for weeks 1 &2 is supplementary to the Course Manual on Sources of Islamic Law.
The readings provided above are overlapping and repetitive in the sense that they all provide a historical backdrop of sources of Islamic law, classification into primary and secondary sources and so on. The reason for suggesting the reading list below is to provide materials from a range of perspectives and authors belonging to ‘western’ and non-western academia and knowledge systems. It also exposes students to the reality that within the Islamic legal tradition, there is a range of opinions and approaches towards family law, from the most conservative to the very progressive and contemporary.
Small Group Teaching.
In a subject such as Islamic law, small group teaching acquires added significance. Students are able to pose questions and familiarise themselves with the ‘culture’ of the subject, its line of argumentation and understanding of complex concepts. Rom our own experience of teaching this subject, we found it particularly useful to devote at least three seminars on sources of Islamic law. This will vary according to class size, level of students as well as length of the course itself. As examples, we present some seminar questions below:
Seminar 1
Readings as provided for lectures 1&2.
Seminar question.
Discuss the points of difference between the four schools of Sunni juristic thought in Islam with particular reference to their respective positions on hadith as a source of Islamic law.
Some tips on how to address this question:
1. In order to address this question, we need to divide it into parts. Ask yourself what the salient features of the Hanafi, Maliki, Shafi, and Hanbali school of thought are.
2. Then, compare their approaches to hadith. Are there any major differences in approach of these schools regarding hadith as a source of Islamic law?
3. Consider hadith and orientalism. Evaluate the views of certain European scholars on the nature, scope and legitimacy of hadith as a source of Islamic law.
4. What are the distinguishing features of the classical and modern theory on hadith literature?
We will initiate the discussion by commenting on the following quotation from Abbott:
“Oral and written transmission went hand in hand almost from the start; the traditions of Muhammad as transmitted by his Companions and their Successors were, as a rule, scrupulously scrutinized at each step of the transmission, and that the so-called phenomenal growth of Tradition in the second and third centuries of Islam was not primarily growth of content, so far as the hadith of Muhammad and the hadith of the Companions are concerned, but represents largely the progressive increase of parallel and multiple chains of transmission.”
Seminar 2
Readings are those provided for lectures 1&2. In particular read the following:
*W. B. Hallaq, “Ifta’ and Ijtihad in Sunni Legal Theory: A Developmental Account” in M.K.Masud, B. Messck & D. Powers (eds.) Islamic Legal Interpretation. Muftis and Their Fatwas (1996) Cambridge: Harvard University Press pp. 33-43.
*Taha J. al-Alwani, “The Crisis in Fiqh and the Methodology of Ijtihad” (1991) Vol. 8 The American Journal of Islamic Social Sciences pp. 317-337.
Seminar Question:
What factors led to the (contested) belief that the doors of ijtihad were closed since the 4th century hijra or 10th century AD?
Some tips on how to address the question:
1. Define ijtihad: “Ijtihad means striving or self-exertion by the mujtahid in deriving the rules of Shariah on particular issues from the sources. Normally such rules are not self-evident in the sources and their formulation necessitates a certain amount of effort on the part of the mujtahid. . . . Since the divine revelation has come to an end with the demise of the Prophet, ijtihad remains the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim community.” Muhammad Hashim Kamali, “Source, Nature and Objectives of Shariah” (1989) Vol. 33, The Islamic Quarterly (London) pp. 215-235 at p. 223
2. Identify rules of undertaking ijtihad. Who can make ijtihad; what are the qualifications of a mujtahid; What is the basis of ijtihad (Quran, Hadith, Ijma, Qiyas).
3. What are the difficulties of making ijtihad in the contemporary world?
2. Husband and Wife (I)
Readings:
From themes 2 to 8, basic reading will be D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet & Maxwell.
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource Book (2002) London: Zed Books.
M.A.Mannan (ed.,) D F Mulla's Principles of Mohammadan Law (1995) Lahore: PLD Publishers
J. J. Nasir, The Islamic law of Personal Status (1990) London: Graham & Trotman.
Z. Mir-Hosseini, Marriage on Trial. A Study of Islamic Family Law (2000) London: I.B. Tauris.
S. S. Ali, Is an Adult Muslim Woman sui Juris? Some Reflections on the Concept of ‘Consent in Marriage’ without a Wali with particular reference to the Saima Waheed case, 3 Yearbook of Islamic and Middle Eastern Law 1996, 156-174
S. S. Ali, Women's Human Rights in Islam: Towards a Theoretical framework, 4 Yearbook of Islamic and Middle Eastern Law 1998, 117-152
S. S. Ali, “Marriage, Dower and Divorce: Superior Courts and Case Law in Pakistan” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, (1998) Lahore, Pakistan: Shirkatgah, pp. 107-142. Co-authored with R.Naz.
S. S. Ali, “Custody and Guardianship: Case Law 1947-97” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, 1998) Lahore, Pakistan: Shirkatgah, pp. 143-162. Co-authored with M.N. Azam.
S. S. Ali, “The Law of Inheritance and Reported Case Law Relating to Women” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, (1998) Lahore, Pakistan: Shirkatgah, pp. 163-180. Co-authored with K. Arif.
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford University Press
A. Al-Hibri, “Marriage Laws in Muslim Countries: A Comparative Study of Certain Egyptian, Syrian, Morrocan, and Tunisian Marriage Laws” (1992) Vol. 4 International Review of Comparative Public Policy pp. 227-24.
Lecture Notes:
This part of the course will discuss the institution of marriage in Islam, its contractual nature, requisites of a valid marriage, dower (mahr) as an essential component of the marriage contract. It is bound to generate a lot of interest in class and students find it fascinating to read verses from the Qur’an regarding marriage, polygamy and so on. For teachers in non-Muslim jurisdictions addressing a pre-dominantly non-Muslim audience, it may be a good idea to spend some time on the main concepts from a comparative perspective and to place the discussion in context. Some tips from our own teaching experience of the subject are shared below:
First of all, to make the point that marriage if a civil contract in Islam and that both parties are at liberty to include mutually acceptable stipulations in it. At the same time, the plural legalities operating within family law also require consideration and there needs to be an awareness amongst students of how the cultural and social norms tend to overshadow the bare legal requirements of the contractual nature of marriage in the Islamic legal tradition. As examples, we have used the Saima Waheed case to highlight the complex interplay between law and social norms and the role of courts in adjudicating upon these issues.
Secondly, we discuss and analyse the concept and role, both legally and socially, of the marriage guardian or wali. How does this fit into the Muslim social context where there is a ‘nikah father/brother’ or representative seeking consent of the bride and then represents her in the actual nikah ceremony. Distinguish this from the legal right of a Muslim male and female to free consent to marriage.
A third point for exploration in these sessions may be Mahr or dower as it is translated in English language writings on the subject. This translation often confuses students who tend to mix up the concept with dowry. It may be useful to spend some time differentiating between the two terms: dower/mahr is the sum of money or other property that the husband gives or promises to give to the wife as a consideration of the marriage. Dowry, is the marriage gift/s received by the bride from her natal family.
When discussing prohibited degrees of relationship in marriage, the term ‘fosterage’ needs to be clarified and explained from a comparative perspective. ‘Fostering’ has a legal significance in the UK and other western jurisdictions as meaning the taking up of parenting responsibilities for a child or children by persons other than the biological parents. In the Islamic legal tradition, where a woman breast feeds a child other than her own biological offspring she becomes the foster mother, her husband the foster father and children, foster siblings. The relationship created is akin to a biological one insofar as it places the fostered child in a similar position in relation to prohibition to inter marry as if the child were actually a biological child of the ‘foster’ mother/father. A lively class discussion is likely to ensue leading to challenging questions regarding application of related principles of Islamic law, including right of the foster child to inherit from the foster parents and so on.
3. Husband and Wife (II)
Readings:
From themes 2 to 8, basic reading will be D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet & Maxwell.
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource Book (2002) London: Zed Books.
M.A.Mannan (ed.,) D F Mulla's Principles of Mohammadan Law (1995) Lahore: PLD Publishers
J. J. Nasir, The Islamic law of Personal Status (1990) London: Graham & Trotman.
Z. Mir-Hosseini, Marriage on Trial. A Study of Islamic Family Law (2000) London: I.B. Tauris.
S. S. Ali, Is an Adult Muslim Woman sui Juris? Some Reflections on the Concept of ‘Consent in Marriage’ without a Wali with particular reference to the Saima Waheed case, 3 Yearbook of Islamic and Middle Eastern Law 1996, 156-174
S. S. Ali, Women's Human Rights in Islam: Towards a Theoretical framework, 4 Yearbook of Islamic and Middle Eastern Law 1998, 117-152
S. S. Ali, “Marriage, Dower and Divorce: Superior Courts and Case Law in Pakistan” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, (1998) Lahore, Pakistan: Shirkatgah, pp. 107-142. Co-authored with R.Naz.
S. S. Ali, “Custody and Guardianship: Case Law 1947-97” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, 1998) Lahore, Pakistan: Shirkatgah, pp. 143-162. Co-authored with M.N. Azam.
S. S. Ali, “The Law of Inheritance and Reported Case Law Relating to Women” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, (1998) Lahore, Pakistan: Shirkatgah, pp. 163-180. Co-authored with K. Arif.
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford University Press
A. Al-Hibri, “Marriage Laws in Muslim Countries: A Comparative Study of Certain Egyptian, Syrian, Morrocan, and Tunisian Marriage Laws” (1992) Vol. 4 International Review of Comparative Public Policy pp. 227-24.
Lecture Notes:
This session explores the concept of dissolution of marriage in the Islamic law including Talaq, Khul and Mubarat. As indicated in earlier sections, it is important to place the concepts, within the wider normative framework of the Islamic legal tradition. It is suggested that the student be introduced to Qur’anic verses on talaq, and other forms of dissolution of marriage and to extrapolate general principles on the subject from these readings. Further, to bear in mind that we will come back to these verses and principles in a later part of the course i.e., law reform in the Muslim world with a view to critique the extent to which such codification reflects the Qur’anic precepts on the subject.
Modes of pronouncing talaq i.e., ahsan, hasan and bidda’ modes, and its legal implications is an important and controversial aspect of Islamic family law and one that we recommend is dealt with in some detail in view of its practical impact for Muslim marriage and divorce globally. The popular understanding and viewpoint of a vast majority of Sunni Hanafi Muslims regarding pronouncement of talaq is that pronouncing the word ‘talaq’ thrice be it in one sentence and the same sitting, has the consequence of an irrevocable dissolution of marriage. Yet, an increasing number of Muslims and Muslim governments have taken issue with this ‘summary’ mode of divorce, and laws in these jurisdictions have declared the infamous ‘triple talaq’ illegal under Islamic law. Why did the triple talaq emerge as a possible avenue of dissolving marriage, why has it continued to date and on what grounds is it being prohibited in contemporary legislation of Muslim jurisdictions, is a question for every student of Islamic family law. As a comparison, it may be useful to look at Shia jurisprudence and reasoning behind the illegality of the triple talaq in that sect of Islam.
As students of Islamic law, there will be debate on the comparable legal positioning of talaq vis-a-vis other forms of dissolution, i.e, khul’, mubarat and so on. Some questions arising include the following:
- Is khul’ comparable and ‘legally’ ‘equal’ to talaq; within the Qur’anic worldview; within Hadith literature, within practice of Muslims.
- When does a divorce, either by talaq, khul’ or mubarat become legally operative and why.
Tutors are always under pressure to present the variety of viewpoints on each of these themes and both literature and practice displays disparate opinions and approaches towards these issues. It is not possible to resolve these questions in a class on Islamic family law but suffice it to say that the teaching and learning process in Islamic law ought to highlight and flag these up and discuss the basis and context of each approach and position. Application of these viewpoints are tested in the latter part of the course through case law from Muslim jurisdictions.
Small group teaching
Seminar 3
1. What is the position of an adult Muslim Woman regarding her right to enter a contract of marriage without the consent of her guardian? In light of the readings on the subject, analyse the issue from the point of view of the various juristic schools of thought (Confine yourself to Sunni jurisprudence and case law)
In particular, ask yourself the following questions:
- Who are parties to the marriage contract in Islam?
- Is the guardian a party to the marriage contract?
- What is the purpose of the consent of the guardian? Is it a legal requirement impacting on the validity of the marriage?
- Why is the consent of the guardian not required at the time of dissolution of the marriage ?
Use the Saima Waheed case provided and Pearl and Menski extracts provided in materials.
Seminar 4
Seminar Question
“It is well-known that polygamy is a controversial issue in Islam. This is not only so because of principled objections to polygamy as an institution, but because the classical Muslim position on polygamy itself is not as simple and uncomplicated as is often assumed.” (Pearl & Menski:1998: 237) In light of the Quranic verses on polygamy, would you agree that “in Islam, monogamy is the rule while polygamy is only an exception.” (Bharatiya: 1996: 74) cited in ibid.
In order to address the question, read the following verses of the Quran
The Quran, Sura IV, verse 3:
“If ye fear that ye shall not
Be able to deal justly
With the orphans,
Marry women of your choice,
Two, or three, or four;
But if ye fear that ye shall not
Be able to deal justly (with them),
Then only one, or (a captive)
That your right hands possess.
That will be more suitable,
To prevent you
From doing injustice.”
The Quran, Sura IV, verse 129:
“ye shall not be able to deal in fairness and justice between two women however much ye wish.”
Recall the context in which the above verses were revealed. Are they context and time specific? Can a general rule allowing polygamy be based on these verses? How would you frame a law on the above verses?
4. Parents and Children.
Readings:
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet & Maxwell, chapter 10.
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource Book (2002) London: Zed Books.
S. S. Ali, “Rights of the Child under Islamic Law and Laws of Pakistan: A Thematic Overview” (2006) Vol. 2 Journal of Islamic State Practices in International Law, pp. 1– 16.
“A Comparative Perspective of the United Nations Convention on Rights of the Child and the Principles of Islamic Law. Law Reform and Children’s Rights in Muslim Jurisdictions” in S. Goonasekere (ed.) Protecting the World’s Children: Impact of the UN Convention on the Rights of the Child in Diverse Legal Systems (2007) Cambridge: Cambridge University Press. Chapter 4 pp. 100.
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford University Press pp. 1-39
S. S. Ali, “Custody and Guardianship: Case Law 1947-97” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, 1998) Lahore, Pakistan: Shirkatgah, pp. 143-162. Co-authored with M.N. Azam.
M.A.Mannan (ed.,) D F Mulla's Principles of Mohammadan Law (1995) Lahore: PLD Publishers
J. J. Nasir, The Islamic law of Personal Status (1990) London: Graham & Trotman.
Lecture Notes:
Following on from a discussion regarding marriage and modes of dissolution, we enter into an area of law that regulates relationship between parents and children, rights of children to an identity, support and maintenance and right to inherit from parents. Subjects covered in this section include custody (Hizanat), guardianship (Wilayat), adoption and concept of Kafalah.
Legitimacy
The most important link to make in this session is between marriage and legitimacy of children. Legitimacy is established either by the birth of a child in a marriage which is valid (sahih) or irregular (fasid), but not one that is void (batil). Alternatively, it may be established through the doctrine of acknowledgement (iqrar).
“Illegitimate births is severely stigmatised in Muslim law, inter alia, because it threatens a dominant principle in traditional Muslim law; that of purity of the blood line through males. Concern over legitimacy, as the institution of the idda’ period confirms, seeks to avoid confusion over paternity, but also reflects a desire to uphold proper sexual mores in society and to avoid illicit sexual relations (zina).” Pearl & Menski, p. 399.
The child’s first right is to establish parentage (Nasir: 1990); regarding rights of inheritance, guardianship and maintenance, the interest of the child is deemed paramount to any other consideration.
Another important point linked to the question of legitimacy is the period of gestation. Pearl and Menski argue that perhaps in view of the drastic consequences attendant upon individuals who are not legitimate, all Sunni schools recognise gestation periods well beyond the medically proved maximum. (p. 400) Teachers can well expect a debate and robust discussion on this issue in view of the capacity of medical technology to ascertain maximum gestation period of a fetus. Hanafis concede a gestation period of upto 2 years between conception and birth of a child. Hanbali, Shafi’I and Maliki upto 4 years (Maliki supto 5 years) Nasir concludes that in practice it has been laid down as one lunar year. Some discussion here may be useful regarding the concept of the ‘sleeping fetus’.
Adoption
He generally held opinion regarding adoption, among Muslims and non-Muslims alike is that adoption is not allowed in Islam and Islamic law. In practice however, various formal and informal devices are employed to support and take account of the welfare of orphaned or destitute children, as well as the interests of childless couples, who may seek to treat a child as their own. The doctrine of kafalah or nurturing and caring for a child other than one’s biological offspring is an example of practice akin to adoption. Likewise, the relationship of fosterage (arising out of breastfeeding a child) creates a prohibition to marriage among ‘foster’ relations including foster parents, foster siblings etc., See also Qur’anic verses on the subject, and engage with the context and purpose of prohibition below.
The Qur’anic verses prohibiting adoption are stated in Surah Ahzab (the clans) Chapter 33, verses 4 and 5 thus:
"Allah has not made
For any man two hearts
In his (one) body: Nor has
He made your wives whom ye
Divorce by Zihar your mothers.
Nor has He made your
Adopted sons your sons,
Such is only your (manner of) speech
By your mouths. But Allah
Tells (you) the truth, and He
Shows the (right) way.
Call them by (the names)
Of their fathers: that is
Juster in sight of Allah,
But if ye know not
Their father's (names, call them)
Your brothers in faith,
Or your Maulas,
But there is no blame on you
If ye make
A mistake therein".
Custody
The basic distinction between custody (hizanat) and guardianship (wilaya) forms another part of the session on parents and children. Custody includes care and control of the child, rights and obligations of the mother and persons who might take their place Guardianship on the other hand, focuses on legal rights and obligations of the child’s father and his representatives. In practice, ‘best interests of the child’ often blurs the distinction between the two concepts. See S. S. Ali & M. N.Azam, “Custody and Guardianship: Case Law 1947-97” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, 1998) Lahore, Pakistan: Shirkatgah, pp. 143-162.
All schools of thought (Sunni and Shia alike) agree that the mother has the first claim to the custody of her infant difference of opinion exists as to who should have custody in the absence of the mother as well as when the period of custody ends. For instance, according to the Hanafi school, the mother retains custody for a boy until the age of 7 and a girl until the age of 9; in the Maliki school, the mother loses custody upon the boy attaining puberty; upon marriage for girls. The Hanbali school states the upper limit for custody of the mother as 7 years for both boys and girls; thereafter the child is given a choice between the parents. Finally, the Shafei school has no fixed age limits for custody of the child and it recommends that on attainment of the age of ‘discretion’, the child be given an opportunity to decide which parent to live with. In the Athna Ashari (Shia) Law the period of custody with the mother is 2 years for boys and 7 for girls.
Some of the questions that come up for discussion and debate in class include the following:
- On what basis have the various schools arrived at these varying age limits of custody; identify the source or sources of law
- In contemporary law-making i.e., statute drafting, legislating, how does one incorporate this variety of norms and how would these be enforced
- If these are indicative ages, to what extent are these discretionary and is the judge the sole arbiter to determine across these age limits
- See role of judge in awarding/forfeiting custody and reasons thereof. Also see reform in Muslim countries on this point.
Some other themes covered under this heading includes:
- Guardianship of property
- Guardianship in marriage
- Guardianship in Islamic law treated more as a duty towards a ward than right vested in the guardian
- Concept of father as natural guardian
- Maintenance of children; Right to be maintained by the father; until puberty (son) and until marriage (daughter)
Small group teaching
Seminar 5
Question
1. “Traditional Islamic law does not appear to allow formal adoption because it refuses to accept the legal fiction which an adoption creates, namely that an adopted child can become an equal to a blood relative of the adopting father.” (Pearl & Menski, p. 408) Analyse this statement in light of Quranic verses and practice in the Muslim world regarding adoption.
Some tips on how to address this question:
1. Read the following Quranic verses supposedly prohibiting adoption stated in Surah Ahzab (the clans) Chapter 33, verses 4 and 5 thus:
"Allah has not made
For any man two hearts
In his (one) body: Nor has
He made your wives whom ye
Divorce by Zihar your mothers.
Nor has He made your
Adopted sons your sons,
Such is only your (manner of) speech
By your mouths. But Allah
Tells (you) the truth, and He
Shows the (right) way.
Call them by (the names)
Of their fathers: that is
Juster in sight of Allah,
But if ye know not
Their father's (names, call them)
Your brothers in faith,
Or your Maulas,
But there is no blame on you
If ye make
A mistake therein".
2. Explore and understand their context. When and in response to what situation were these verses revealed? What are the legal rules you are able to extrapolate from these verses? Is it pointing towards a blanket prohibition of the concept of adoption? Define adoption as a western concept and then try to engage with it from within the Islamic legal tradition.
3. What about the doctrine of kafalah, or looking after, nurturing and caring for children not your biological offspring?
4. Look at the concept of Laqeet or foundling and the duty to look after them.
5. How would you construct rules regarding adoption on the basis of the above exploration.
5. Property.
Readings:
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource Book (2002) London: Zed Books
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford University Press
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet & Maxwell.
S. S. Ali, “Marriage, Dower and Divorce: Superior Courts and Case Law in Pakistan” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, (1998) Lahore, Pakistan: Shirkatgah, pp. 107-142. Co-authored with R.Naz.
S. S. Ali, “The Law of Inheritance and Reported Case Law Relating to Women” in F. Shaheed et al (eds.,) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan, (1998) Lahore, Pakistan: Shirkatgah, pp. 163-180. Co-authored with K. Arif.
Lecture Notes
This session will analyse the concept of property rights in Islamic law using examples of gift (Hiba), succession and inheritance (Virasat), will (vasiya), dower (Mahr).
- A major difference between the concept of inheritance in ‘western’ jurisdictions and the Islamic legal tradition is the limitations imposed by the Qur’anic rules. Thus, in the lifetime of the owner, she/he is the sole owner of her/his estate. On his death, only one third of the estate may be disposed off by a will; the bulk of the state therefore follows a pre-destined path in accordance with clearly set out rules of inheritance.
- Mahr, to be paid as a debt on the estate
- Why double share for a male heir vis-avis a female heir. Is this the bare minimum or the optimum permissible share.
The last point made above, takes a fair bit of time and we anticipate discussion on issues of discrimination and equality in relation to rights of inheritance and its impact on the wider issue of the status and rights of the Muslim woman.
6. Law Reform in the Muslim World.
Readings:
A A An Naim, “Sharia and positive legislation: is an Islamic state possible or viable?” (1998-1999) Vol. 5 Yearbook of Islamic and Middle Eastern Law pp. 29-41
S.S. Ali, “Testing the Limits of Family Law Reform in Pakistan: A Critical Analysis of Muslim Family Laws Ordinance 1961.” (2002) International Survey of Family Law: Cambridge University Press pp.317-335.
S. S. Ali, “Using Law For Women in Pakistan” in Ann Stewart (ed.,) Gender, Law and Justice, (2000) London: Blackstone, pp. 139-159.
S. S. Ali, “A Critical Review of Family Laws in Pakistan: A Women’s Perspective” in R.Mehdi (ed.,) Women's Law in Legal Education and Practice in Pakistan: North South Co-operation (1997) Copenhagen: Social Science Monographs. pp. 198-223.
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource Book (2002) London: Zed Books pp. 1-21
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford University Press
Z. Mir-Hosseini, Marriage on Trial. A Study of Islamic Family Law (2000) London: I B Tauris.
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet & Maxwell pp.68-83, 166-175, 228-236, 273-278, 382-398.
C. Mallat & J. Connors (eds.,) Islamic Family Law (1990)London: Graham & Trotman.
M. A. Mannan (ed.,) D. F. Mulla's Principles of Mahomedan Law (1995) Lahore: PLD Publishers.
Lecture Notes.
This part of the course draws upon the concepts and normative framework of the earlier part of the course to analyse the extent to which these principles of Islamic family law find a place in legislation of contemporary Muslim jurisdictions. It uses examples of law reform from South-Asian jurisdictions including the Child Marriages Restraint Act 1929, the Dissolution of Muslim Marriages Act 1939 (India and Pakistan), the Muslim Family Laws ordinance 1961 (Pakistan) and the Moroccan Family Code (Moudawana) of 2004. It will provide students an opportunity to link theoretical perspectives on Islamic law and its sources to their application in contemporary legislation and develop their analytical skills.
- One of the critical questions arising in this section of the course relates to the merits and de-merits of codification of Islamic family law.
- Is it a useful mechanism for formalising Islamic family law, or indeed, any field of the Islamic legal tradition.
- Does codification lead to fossilisation of norms and rules, even concepts; in particular within Islamic family law.
An interesting method of engaging students with the processes of law reform in the Muslim world is to provide a historical and contextual overview. What was the motivation to reform and codify, and what led to inclusion and exclusions of certain interpretative formulations within Islamic law when legislating in this area. The Rashid Commission Report from Pakistan which was the pre-cursor to the Muslim Family Laws Ordinance 1961 is one example.
Some landmarks in the evolution of codification of Islamic family law:
- First major redefinition of traditional Muslim law - - Ottoman Empire in the 19th century. These were attempts at codification of law.
- The Tanzimat, as they were known, introduced a range of codified laws. The form of these laws was European but there was some attempt to integrate certain principles of Sharia criminal law.
- The Majalla or The Civil Code of 1876 (Contract and tort of Hanafi Sunni law) Majalla is important in that it represents the earliest example of official promulgation of significant parts of the Shari’a by authority of a modern state. It did not only draw upon Hanafi Sunni jurisprudence but chose also to incorporate divergent views from the Hanafi traditions. The Majalla as example of takhayyur
- Ottoman Law of Family Rights 1917 contained (limited) rights to divorce by Muslim women a reform based on the Maliki and Hanbali doctrine on the subject.
- The Turkish reforms as aspiration for other countries in the Muslim world.
- Juristic techniques of Muslim jurisprudence including Ijtihad, Takhayur, Talfiq were used in the modern day legal reform in the Muslim world. For instance: An adult Muslim woman’s right to enter into marriage of her own accord without intervention of her male guardian (a principle of the Hanafi school), has been adopted by applying talfiq in jurisdictions where the Hanafi School is not otherwise followed. Morocco, following the Maliki School, used this to reform her Family Code.
- The DMMA is another example where principles of four schools of thought were merged together to arrive at a codified law. The formulation is secular as it does not contain invoke the Qur’an or Sunna directly but Islamic principles of law and justice were invoked and used as a justification for the said legal reform
- The MFLO drafted in light of Qur’anic verses. Registration of marriages, procedure for divorce and role of arbitration council, orphaned grandchild and inheritance, permission of existing wife in polygamous marriages unions.
- The 20th century as the century of law reform in the Muslim world.
Small group teaching
Seminar 6
Law Reform in the Muslim World
This session will concentrate on linking the theoretical concepts of Islamic Law explored in the earlier part of the course to its practical application by various Muslim jurisdictions through attempts to reform their family law. We will use the Moroccan Family Code (Moudawana) adopted on February 5, 2004 as an example.
The Moudawana has been uploaded on to the Islamic law website and is available for you as the basic reading for this seminar.
We will discuss the eleven points of reform raised in the preamble of this document and ask ourselves the extent to which this reformed law is in consonance with the sources of Islamic law.
The King’s speech regarding the rationale and objective of the reform is incorporated into the preamble of the Moudawana, extracts from which are given below:
“1. Adopt a modern form of wording and remove degrading and debasing terms for women.
Place the family under the joint responsibility of both spouses, given that ‘women are men’s sisters before the law’ in keeping with the words of my ancestor the Chosen Prophet Sidna Mohammed, Peace Be Upon Him, as reported, ‘Only an honourable person dignifies women, and only a villainous one degrades them.’
2. Entitle the woman who has come of age to tutelage as a right, and she may exercise it according to her choice and interests, on the basis of an interpretation of a holy verse stipulating that a woman cannot be compelled to marry against her will: “…place not difficulties in the way of their marrying their husbands, if it is agreed between them in kindness.’ A woman may of her own free will delegate tutelage to her father or a male relative.
3. Equality between women and men with respect to the minimum age for marriage, which is now fixed at eighteen years for both, in accordance with certain provisions of the Malekite School, and authorize the judge to reduce this age only in justified cases, and further, equality between girls and boys under custody who may choose their custodian at the age of fifteen.
4. Concerning polygamy, we took into consideration the commitment to the tolerant principles of Islam in establishing justice, which the Almighty requires for polygamy to take place, as it is plainly stated in the Holy Koran: He said '...and if you fear that you cannot do justice (to so many) then one (only).' And since the Almighty ruled out the possibility for men to do justice in this particular case, He said: 'You will not be able to deal equally between (your) wives, however much you wish (to do so),' and he thus made polygamy quasi impossible under Sharia (religious law).
We further adhered to the distinguished wisdom of Islam in allowing men to legitimately take a second wife, but only under compelling circumstances and stringent restrictions, with the judge’s authorisation, instead of illegitimate polygamy occurring if we prohibit it entirely.
From thence, polygamy shall be allowed only in the following circumstances and according to the following legal conditions:
- The judge shall not authorize polygamy unless he has verified the husband’s ability to guarantee equality with the first wife and her children in all areas of life, and there is an objective and exceptional motive that justifies polygamy.
- The woman has the right to stipulate a condition in the marriage contract by which her husband will refrain from taking another wife, as Omar Ibn Al-Khattab, may God be pleased with him, is quoted as saying: 'The intersection of rights is in the conditions.' In the absence of such a condition, the first wife is summoned to obtain her consent, and the second wife must also be notified and consent to the fact that the husband is already married to another woman. Moreover, the first wife has the right to petition for divorce for harm suffered.
5. As a token of our royal concern for our dear subjects residing abroad, marriage
procedures are to be simplified for them: the marriage contract is to be drawn up in the presence of two Muslim witnesses and in accordance with the procedures in effect in the country of residence, and then registered with the proper Moroccan consular or judicial authorities, according to the Hadith: 'Seek ease, not hardship.'
6. Make divorce, defined as the dissolution of marriage, a prerogative that may be exercised as much by the husband as by the wife, in accordance with legal conditions established for each party and under judicial supervision to control and restrict the abusive arbitrary practices of the husband in exercising repudiation, and this according to the rules established on the basis of the Hadith by Prophet Mohammed, Peace Be Upon Him, ‘The most hateful to God among all lawful things is divorce.’ The new legislation also reinforces the mechanisms for reconciliation and mediation both through the family and the judge. If the husband has the right of repudiation, the wife may also avail herself of this right through tamleek (assignation). In all cases, before repudiation may be authorized it must be ascertained that the repudiated woman has received all of her vested rights. A new procedure for repudiation has been established that requires judicial permission, and the repudiation can not be registered until all vested rights owed to the wife and children have been paid in full by the husband. Irregular pronouncements of repudiation by the husband shall not be considered valid.
7. Expand the woman’s right to file for divorce when the husband does not fulfil any of the conditions stipulated in the marriage contract, or for harm caused to the wife such as lack of financial support, abandonment, violence, and other harm, in view of endorsing the general legal principle: ‘neither harm nor be harmed,’ to promote equality and equity between the two spouses. Another new provision introduces of the right of divorce by mutual consent under judicial supervision.
8. Protect children’s rights by inserting provisions of international conventions ratified by Morocco into the Moudawana. Children’s interests with respect to custody are also guaranteed by awarding custody to the mother, then to the father, then to the maternal grandmother. Should this prove impossible, the judge will entrust custody to the most qualified relative. Furthermore, the child under custody is guaranteed suitable accommodation, separate from the other financial maintenance obligations, and cases concerning maintenance obligations must be settled swiftly within a one-month time limit.
9. Protect the child’s right to acknowledgement of paternity in the event the marriage has not been officially registered for reasons of force majeure, where the court examines the evidence presented to prove filiation, and establish a five year time limit for settling outstanding cases in this regard to put an end to the suffering endured by children in this situation.
10. Allow the granddaughter and grandson on the daughter’s side the right to inherit from their grandfather, just as the grandchildren on the son’s side, in keeping with the principles of ijtihad (juridical reasoning) and justice in the compulsory legacy.
11. Concerning the management of property acquired by the two spouses during
marriage: while confirming the principle of separate marital property, the bill makes it
possible for the couple to agree, in a document separate from the marriage contract, on a framework for managing assets acquired during marriage. In case of disagreement, the judge shall resort to general rules of evidence to assess each spouse’s contribution to the development of the family capital.
Ladies and gentlemen, honourable Members of Parliament,
The reforms, of which we cited the most important, should not be considered as a victory of one group over another, but rather constitute achievements for all Moroccans, and we took care to ensure that they were consistent with the following principles and references:
- I cannot, as Commander of the Faithful, permit what God has forbidden and forbid what God has permitted.
- Adopt the tolerant principles of Islam in advocating human dignity, and enhancing justice, equality and good amicable social relations, and with the cohesiveness of the Malekite School as well as ijtihad (juridical reasoning), which makes Islam valid for any time and place, to implement a modern Moudawana for the family, consistent with the spirit of our glorious religion.
- Not consider the Moudawana as a law for the woman only, but a Moudawana for the entire family - father, mother and children - and further ensure that this Moudawana eliminates discrimination against women, protects the rights of children and preserves men’s dignity.”
7. Application of Islamic Family law to Muslim diasporic communities
Readings:
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet & Maxwell pp. 19-28.
A A An Naim, “Sharia and positive legislation: is an Islamic state possible or viable?” (1998-1999) Vol. 5 Yearbook of Islamic and Middle Eastern Law pp. 29-41
S.S. Ali, “Testing the Limits of Family Law Reform in Pakistan: A Critical Analysis of Muslim Family Laws Ordinance 1961.” (2002) International Survey of Family Law: Cambridge University Press pp.317-335.
S S Ali, “Religious Pluralism, Human Rights and Muslim Citizenship in Europe: Some Preliminary Reflections on an Evolving methodology for Consensus” in T. Leonon & J. Goldschmidt (eds.) Religious Pluralism and Human Rights in Europe (2007) Antwerp: Intersentia, pp. 57-79.
S S Ali, “The Twain Doth Meet! A Preliminary Exploration of the Theory and Practice of as-Siyar and International Law in the Contemporary world” in J. Rehman & S. Breau (eds., ) Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices (2007) Leiden: Martinus Nijhoff Publishers.
S. S. Ali, “Using Law For Women in Pakistan” in Ann Stewart (ed.,) Gender, Law and Justice, (2000) London: Blackstone, pp. 139-159.
S. S. Ali, “A Critical Review of Family Laws in Pakistan: A Women’s Perspective” in R.Mehdi (ed.,) Women's Law in Legal Education and Practice in Pakistan: North South Co-operation (1997) Copenhagen: Social Science Monographs. pp. 198-223.
A.A.An-Naim (ed.,) Islamic Family Law in a Changing World. A Global Resource Book (2002) London: Zed Books pp. 1-21
A.A.A.Fyzee, Outlines of Muhammadan Law 4th edition (1974) Delhi: Oxford University Press
Z. Mir-Hosseini, Marriage on Trial. A Study of Islamic Family Law (2000) London: I B Tauris.
D. Pearl & W. Menski, Muslim Family Law (1998) 3rd edition, London: Sweet & Maxwell pp.68-83, 166-175, 228-236, 273-278, 382-398.
C. Mallat & J. Connors (eds.,) Islamic Family Law (1990)London: Graham & Trotman.
M. A. Mannan (ed.,) D. F. Mulla's Principles of Mahomedan Law (1995) Lahore: PLD Publishers.
B. Berkovits, "Get and Talaq in English Law: Reflections on Law and Policy" in C. Mallat & J. Connors (eds.,) Islamic Family Law (1990)London: Graham & Trotman pp. 119-146.
S. Poulter, "The Claim to a Separate Islamic System of personal Law for british Muslims" in C. Mallat & J. Connors (eds.,) Islamic Family Law (1990)London: Graham & Trotman pp. 147-166.
A S Roald, Women in Islam The Western Experience (2001) London: Routledge
List of cases: (Choose one)
1. Seemi v. Seemi (1990) 140 N.L.J 747
2. R. v. Bibi (1980) 1 W.L.R. 1193
3. Shahnaz v. Rizwan (1964)1 Q.B.D. 390; (1964) 2All.E.R. 993; (1964) 3 W.L.R. 1506
4. Qureshi v. Qureshi (1971) 2 W.L.R. 518
5. Bibi v. Chief Adjudication Officer
6. Chaudhry v. Chaudhry (1976) Fam 148
7. Hussain v. Hussain (1982) 3 All E.R. 369; (1982) 3 W.L.R. 679; (1983) Fam 1; (1983) 4 F.L.R 339
8. Quoraishi v. Quoraishi (1983) 4 F.L.R. 706; (1983) 3 Fam. Law 86; (1985) F.L.R. 780
9. Quazi v. Quazi (1973) 3 All E. R. 897(1979) 3 W.L.R. 833; (1980) A.C. 744; 10 Fam. Law 148
10. R. Registrar General of Births, Deaths and Marriages, ex p. Minhas (1976) 2 All E.R. 246 (1977) Q.B. 1
11. Secretary of State for the Home Department v. Syeda Khatoon Shah (1997) Imm.A.R. 584. Important: Please find the House of Lords decision and citation.
12. Rafiq v. Secretary of State for the Home Department (1972) Imm. A.R. 167
13. Malik v. Secretary of State for the Home Department (1972) Imm.A.R. 37
14. R. v. immigration Appeal Tribunal, ex p. Tohur Ali (1987) Imm. A.R 189
15. Immigration Appeal Tribunal v. Tohur Ali (1988) Imm.A.R.237
16. Alhaji Mohammad v. Knott (1969) 1 Q.B. 1 (1968) 2 W.L.R. 1446; (1968) 2 All E.R. 563
Lecture Notes
This topic is complex and requires more than one session. However, depending upon the time and space available, tutors may limit the scope of the theme and issues arising. I suggest a discussion of the concept ‘diaspora’ and problemmatising ‘Muslim diaspora’ as a category of Muslims with multiple identities and whether this is a useful categorisation of people.
In the present module, we suggest at least two sessions dedicated to providing an overview of the application of Islamic Family law in ‘non-Muslim’ jurisdictions with particular emphasis on Britain. A number of cases may also be discussed in class to explore the approach and attitude of the English courts when seized of cases where a conflict of laws situation presents itself.
Assessment Questions
As indicated in an earlier section of this manual, assessment is useful as a learning and evaluative experience when it is varied and demands application of analytical and critical skills of the student in the subject. Below, we share a list of assessments that we have given our students and hope the users of this manual find them a useful resource.
Word limits may be varied in accordance with the credit score applicable to each course. It may start at 2500 words to 5000 depending upon the level and percentage of the entire evaluation for the course.
1. It is often argued that a selective use is made of Qur’anic verses when legislating in the area of family law. Study carefully the following verses on divorce in the Quran and state how you might draft these into a divorce law (statute). As background reading, draw upon existing legislation on the subject in some Muslim jurisdictions. Chapter 2, verses, 227, 228, 229, 230, 231, 232, 236, 241. Chapter 33 verse 49, Chapter 65 verse 1, Chapter 66, verse 5.
2. It is generally stated that Islamic law prohibits adoption. In light of Qur’anic verses, Hadith literature and commentaries on the subject, present your arguments of whether the prevalent concept of adoption is alien to Islamic Jurisprudence. In formulating your arguments, use the concept of ‘fosterage’, the duty of raising and nurturing foundlings, as well as the doctrine of kifayat.
3. Does Islamic law require a religious institution/authority to pronounce ‘talaq’ and/or other modes of dissolution of divorce, including khul’ and judicial divorce? Would a judicial decree (of divorce) pronounced by an English court presided by a non-Muslim judge, where the parties are Muslim, amount to a valid dissolution?
4. “It is well-known that polygamy is a controversial issue in Islam. This is not only so because of principled objections to polygamy as an institution, but because the classical Muslim position on polygamy itself is not as simple and uncomplicated as is often assumed.” (Pearl & Menski:1998: 237) In light of the Quranic verses on polygamy, would you agree that “in Islam, monogamy is the rule while polygamy is only an exception.” (Bharatiya: 1996: 74) cited in ibid.
5. To what extent is codification of Islamic family law an ‘authentic’ and adequate reflection of the Quranic provisions on the subject? Provide an analysis with reference to any ONE of the following laws:
1. Code of Personal Status of Morocco.
2. Code of Personal Status of Tunisia.
3. Code of Personal Status of Jordan.
4. Code of Personal Status of Egypt.
5. The Dissolution of Muslim Marriages Act 1939 (India/Pakistan/Bangladesh)
6. Muslim Family Laws Ordinance 1961. (Bangladesh/Pakistan).
Notes:
Here are some tips to help you with your assignment.
Read the laws above and choose ONE. Remember that laws from serial number 1 to 4 have a number of versions. You may choose any one but do make clear which one you are referring to.
The laws above will cover a range of issues on Islamic family law including marriage, dower, divorce, custody and guardianship, inheritance etc., You may choose one or more areas.
Read the class materials on the subject as well as other relevant materials you may find in the library or on the internet (electronic journals, online library etc.,) The bibliography in your class notes is quite extensive; make use of it!
Review and analyse provisions of the law of your choice in light of the research asking yourself the question: Which Quranic provision does this provision of the law link to? Can there be more than one interpretations of this verse? Has the law captured these variations? For example, look at the verses on polygamy in the Quran. Compare these to the provisions of the Muslim Family Laws Ordinance 1961 of Pakistan. Do you agree that these provisions reflect the text and context of the Quran?
6. Task: To develop an annotated bibliography on any ONE of the following topics.
1. Sources of Islamic Law
2. The Sunni Schools of Juristic Thought
3. Institution of Marriage in Islamic law
4. Dissolution of Marriage in Islamic law (talaq, khul’, mubarat, etc.,)
5. Polygamy in Islamic law.
6. Law Reform in the Muslim World.
7. Adoption in Islamic law
8. Application of Islamic law in the diaspora (e.g., UK, USA, European countries).
How to go about this task:
i. Search for materials on the subject you have chosen in the library and through various electronic databases available to you. These would include books, journal articles, chapters in books, case law, reports etc.
ii. Make a list of all the materials you find (with complete details of author, title, place of publication and publisher).
iii. Choose any 5 (five) of these materials and write a one paragraph review of each.
iv. Your assessment should include your bibliography AND review of your chosen 5 materials.
v. The review should not be more than 2500 words EXCLUDING the bibliography.
7. A&B, a married Muslim couple are approached by another couple C&D to request A to be surrogate mother to their child. If A&B agree to this proposition, it will raise a number of issues for both couples from an Islamic family law perspective. You are asked to advise the families on issues so arising and possible avenues of addressing these from within the Islamic legal tradition.
9. In a recent judgement, a court in Pakistan declared DNA testing for establishing paternity of a child as ‘against the spirit of Islam to protect the privacy of persons especially women’. The parties have now appealed the decision. You are approached by the court to prepare a legal opinion, based upon Islamic law, on whether or not DNA testing is against Islamic injunctions. In 2500 words, present your views on the matter and issues arising.
10. S. S. Shah in his article entitled ‘Fosterage as a ground of marital prohibition in Islam and the status of human milk banks’ declares that “. .. breast-feeding through fosterage should not be substituted with Human Milk Banks in view of both its ensuing encroachment upon the revered milk relationship and other psychological and moral disadvantages upon the Muslim infants. Therefore the Human Milk Banks as it stands in the West today is a tampering with prohibition based upon milk relationship in Islam.” Analyse this statement in light of Islamic law.
Islamic Family Law Bibliography
Primary Sources and Translations
The Holy Qur’an Text, Translation & Commentary Ali, A Y (reprinted in 1990) Lahore: Sh. Muhammad Ashraf Volumes I & II.
The Meaning of the Glorious Koran trans. Pickthall, M M n.d. New York: Mentor.
Ahmed al-Shaybani, A. (1999) Adab al-Qadi: Islamic Legal and Judicial System. Trans. by Munir Ahmad Mughal. Lahore, Pakistan: Kazi Publications.
Al-Mawardi, A. (1996) Al-Ahkam al-Sultaniyya w’al-Wilayat al-Diniyya. Trans. by Wafaa H. Wahba as The Ordinances of Government. Reading: Centre for Muslim Contribution to Civilization; London: Garnet Publishing Ltd.
Al-Misri, A.(1999) Umdat al-Salik. (Trans. and ed.) By Keller, Nuh Ha Mim as Reliance of the Traveller: A Classic Manual of Islamic Sacred Law. Beltsville (MD): Amana Publications.
Al-Shafi`i, M.I.(1987) Al-Risala fi Usul al-Fiqh. Trans. by Majid Khadduri as Treatise on the Foundations of Islamic Jurisprudence. 2nd ed. Cambridge: Islamic Texts Society.
Al-Shayzari, A.R.N. (2000) Nihayat al-Rutba fi Talab al-Hisba. Trans. by R.P. Buckley as The Book of the Islamic Market Inspector. Oxford University Press.
Ibn Rushd, M. Bidayat al-Mujtahid (1994) Trans. by Imran Ahsan Khan Nyazee.as The Distinguished Jurist’s Primer. Reading, U.K.: The Centre for Muslim Contribution to Civilisation, Volumes 1 and11.
Ibn Taymiyya, A. (2000) Sihhat usul Madhab ahl alMadinah Trans. by Aisha Bewley as The Medinan Way: The Soundness of the Basic Premises of the School of the People of Madina Norwich, U.K.: Bookwork.
--------(1966) Al-Siyasah al-Sha`riyya. Trans. by Omar A. Farrukh as Ibn Taymiyya on Public and Private Law in Islam. Beirut: Khayats.
Malik ibn Anas, A. (1982) Al-Muwatta. Trans. by Aisha Abdurrahman At-Tarjumana and Yaqub Johnson, as Idris Mears (ed.) Norwich, U.K.: Diwan Press.
Marghinani, `Ali ibn Abi Bakr (1975) The Hedaya, or Guide: A Commentary on the Mussulman laws.[Al-Hidayah] Charles Hamilton, trans. 2d ed., with pref. and index, by Standish Grove Grady. Lahore: Premier Book House.
Books
Adamu, M. K. (1987) The Islamic Notion of Marriage and Divorce. Laranto: Joeart Publications.
Afkhami, M. (ed.) (1995) Faith & Freedom: Women's Human Rights in the Muslim World. I. B. Tauris: London.
Afshar, H. (1998) Islam and Feminism: An Iranian Case-Study. London: Macmillan Press.
Ahmad, F. (1994) Triple Talaq: An Analytical Study with Emphasis on Socio Legal Aspects. New Delhi: Regency Publications.
Ahmed, L. (1992) Women and Gender in Islam. New Haven CT: Yale University Press.
Akhtar, S. (1994) Shah Bano Judgement in Islamic Perspective, a Socio-Legal Study. New Delhi: Kitab Bhavan.
Al-Hibri, A.(1982) A Study of Islamic Herstory: Or How Did We Ever Get Into This Mess? Women’s Studies International Forum. Oxford: Pergamon Press.
Ali, S. M. (2004) The Position of Women in Islam: A Progressive View
Ali, S. S. (1995) A Comparative Study of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, Islamic Law and the Laws of Pakistan. Peshawar: Shaheen Press.
Ali, S. S. (2000) Gender and Human Rights in Islam and International Law Equal Before Allah, Unequal Before Man? The Hague: Kluwer Law International.
Ali, S. S. (ed.) (2006) Conceptualising Islamic Law, CEDAW and Women’s Human Rights in Plural Legal Settings: A Comparative Analysis of Application of CEDAW in Bangladesh, India and Pakistan. UNIFEM Regional Office: Delhi.
Alami, D. (1992) The Marriage Contract in Islamic Law. London: Graham & Trotman
Alami, D. and D. Hinchcliffe. (1996) Islamic Marriage and Divorce Laws of the Arab World. London: Kluwer Law International.
Amira El Azhary, S. (1996) Women, the Family, and Divorce Laws in Islamic History. Syracuse, New York: Syracuse University Press.
Anderson, J. (1976) Law Reform in the Muslim World. London: Athlone Press.
An-Naim, A. A. (1990) Towards an Islamic Reformation. Syracuse: Syracuse University Press.
An-Naim, A.A. (2002) Islamic Family Law in a Changing World: A Global Resource Book. London: Zed Press.
Awde, N. (2000) Women in Islam: An Anthology from the Qur'an and Hadiths. New York: St. Martin's Press.
Badran, M. (1995) Feminists, Islam, and Nation: Gender and the Making of Modern Egypt. New Jersey: Princeton University Press.
Barlas, A. (2002) Believing Women in Islam: Un Reading Patriarchal Interpretations of the Quran. Austin: University of Texas Press.
Bara-Acal, A.M. and Abdulmajid, J. A. (1998) Muslim Law on Personal Status in the Phillipines. Quezon City: Central Professional Books.
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Chapters in Books
Al-Hibri, A. Y. (1999) “Islamic Law and Muslim Women in America” in M. Garber, and R. L. Walkowitz, (ed.)One Nation under God? Religion and American Culture. London: Routledge.
Ali, S. S. (2007) “A Comparative Perspective of the United Nations Convention on Rights of the Child and the Principles of Islamic Law. Law Reform and Children’s Rights in Muslim Jurisdictions” in S. Goonasekere (ed.) Protecting the World’s Children: Impact of the UN Convention on the Rights of the Child in Diverse Legal Systems (2007) Cambridge: Cambridge University Press.
Ali, S. S. (2007) “Interpretative Strategies for Women’s Human Rights in a Plural Legal Framework: Exploring Judicial and State Responses to Hudood laws in Pakistan” in Anne Hellum, Shaheen Sardar Ali, Julie Stewart & Amy Tsanga (eds.) Human Rights, Plural Legalities and Gendered Realities: Paths are Made by Walking. Harare: Weaver Books. Chapter 15
Ali, S. S. (2007) “Overlapping Discursive Terrains of Culture, Law and Women’s Rights: An Exploratory Study on Legal Pluralism at Play in Pakistan.” in Bennett, J. (ed.) Scratching the Surface: Democracy, Traditions, Gender Lahore: Heinrich Boll Foundation pp. 77-100.
Ali, S. S. (2007) “Religious Pluralism, Human Rights and Muslim Citizenship in Europe: Some Preliminary Reflections on an Evolving Methodology for Consensus” in Leonon, T. & Goldschmidt, J. (eds.) Religious Pluralism and Human Rights in Europe Antwerp: Intersentia, pp. 57-79.
Ali, S.S. (2002) “Testing the Limits of Family Law Reform in Pakistan: A Critical Analysis of Muslim Family Laws Ordinance 1961” International Survey of Family Law. Bristol: Jordans.
Ali, S. S. (2002) “Women’s Rights, CEDAW, And International Human Rights Debates: Toward Empowerment? in S. Rai, J. Parpart & Staudt, (eds.) Gender and Empowerment in a Local Global World. London: Routledge.
Ali, S. S. (2000) “Using Law for Women in Pakistan” in A. Stewart ed. Gender, Law and Justice. London: Blackstone.
Ali, S. S. and K. Arif. (1998) “Parallel Judicial Systems in Pakistan and Consequences for Human Rights” in F. Shaheed et al eds. Shaping Women’s Lives Laws, Practices and Strategies in Pakistan. Lahore: Shirkatgah.
Ali, S. S. and Naz, R. (1998) “Marriage, Dower and Divorce: Superior Courts and Case Law in Pakistan” in Shaheed, F. et al (eds.) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan. Lahore: Shirkatgah.
Ali, S. S. and Azam, M. N. (1998) “Custody and Guardianship: Case Law 1947-97” in F.Shaheed, et al (eds.) Shaping Women’s Lives Laws, Practices and Strategies in Pakistan. Lahore: Shirkatgah.
Ali, S. S. and Arif, K. (1998) “The Law of Inheritance and Reported Case Law Relating to Women” in Shaheed, F. et al eds. Shaping Women’s Lives Laws, Practices and Strategies in Pakistan. Lahore: Shirkatgah.
Ali, S. S. (1997) “A Critical Review of Family Laws in Pakistan: A Women’s Perspective” in R. Mehdi, (ed.) Women's Law in Legal Education and Practice in Pakistan: North South Co-operation. Copenhagen: Social Science Monographs.
Ali, S. S. (1995) “The Constitutional, Legal, Ideological and Customary Status of Rural Women in the NWFP” in H.M. Naqvi and U.K. Adeel (eds.) Development, Change and Rural Women in Pakistan Islamabad: Ministry for Women's Development and Youth Affairs and Pakistan Academy for Rural Development pp. 31-52.
Ali, S. S. (1994) “Mysogynistic Trends in Islamic Jurisprudence -- A Feminist Perspective” in Naheed, K. (ed.) Pakistani Women - Myth and Realities, Lahore: Sang-e-Meel Publications.
Ali, S. S. & Mullally, S. (1992) "Women's Rights and Human Rights in Muslim Countries: A case-study" in Hinds, H. Phoenix, A. and Stacey, J. (eds.) Working Out: New Directions for Women's Studies London: Falmer pp.113-123.
Anderson, J.N.D. (1968) “Islamic Family Law, Chapter 11 in Volume IV of International Encyclopaedia of Comparative Law, The Eclipse of the Patriarchal Family in Contemporary Islamic Law,” in JND Anderson (ed.) Family Law in Asia and Africa, London: Allen & Unwin.
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Caroll, L. (2000) “Arranged Marriages: Law, Custom and the Muslim Girl in the UK,” in P. Ilkkaracan, Women and Sexuality in Muslim Societies, Istanbul: Women for Women’s Human Rights. (WWHR) New Ways.
Fakhro, M. (1996) “Gulf Women and Islamic Law” in M.Yamani, (ed.) Feminism and Islam. London: Ithaca Press.
Mitchell, R. (1997) “Family Law in Algeria before and After the 1404/1984 Family Code”, in Gleave. (ed.) Islamic Law, Theory and Practice. London: I. B.Tauris.
Moors, A. (1999) “Debating Islamic Family Law; Legal Texts and Social Practices,” in Meriwether, M. L. and Tucker, J. E. (eds.) A Social History of Women and Gender in the Modern Middle East Colorado and London: Westview Press.
Poulter, S. (1990) “The Claim to a Separate Islamic System of Personal Law for British Muslims” in C. Mallat & J. Connors (eds.) Islamic Family Law. London: Graham & Trotman.
Rehman, J (1997) “Women’s Rights: An International Law Perspective” in R. Mehdi and F. Shaheed (eds.) Women’s Law in Legal Education and Practice: North-South Co-operation Copenhagen: New Social Science Monographs pp. 106–128.
Siddiqui, M. (2000) “The Defective Marriage in Classical Hanafi Law: Issues of Form and Validity.” in G.R. Hawting, J.A. Mojaddedi, and A. Samely, (eds.) Studies in Middle Eastern Texts and Traditions in Memory of Norman Calder. Oxford: Oxford University Press.
——— (1996) “Law and the Desire for Social Control: An Insight into the Hanafi Concept of Kafa'a with Reference to the Fatawa 'Alamgiri” in Mai Yamani, (ed.) Feminism in Islam: Legal and Literary Perspectives. London: Ithaca Press.
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Quraishi, A. (2000) “Her Honour: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective,” in G. Webb, (ed.) Windows of Faith: Muslim Women Scholar-Activists in North America. Syracuse: Syracuse University Press.
Journals
Aahraa, M.M. A. (1998) “The Concept of Custody in Islamic Law” Vol. 13, Arab Law Quarterly.
Ali, S. S. (2006) “Rights of the Child under Islamic Law and Laws of Pakistan: A Thematic Overview” Vol. 2, Journal of Islamic State Practices in International Law. pp. 1– 16.
Ali, S. S. (1997) “Is an Adult Muslim Woman Sui Juris? Some Reflections on the Concept of "Consent in Marriage" without a Wali (with particular reference to the Saima Waheed Case)” Vol. 3, Yearbook of Islamic and Middle Eastern Law.
Ali, S. S. (1991) "Gender, Islamic Fundamentalism and Human Rights: a case study of Pakistan" Vol. 2 Women Against Fundamentalism Journal.
Ali, S. S. (1990) “Sociological Difficulties in the Implementation of Legislation Pertaining to Women in Pakistan” Vol.9, No.14, Journal of Law and Society.
Ali, S. S. (1989) “Case Review- Beguman vs.Saroo (PLD) 1964, Lah 451) Scope of the Principles of Justice, Equity and Good Conscience under Muslim Law” Vol.8, No. 12 ,Journal of Law and Society.
Ali, S. S. (1988) “The Perception of the Process of Islamization Among the Students of the N.W.F.P.- A Case Study” Vol.8, No.10, Journal of Law and Society. pp.47-59.
Ali, S. S. (1987) “Legal Education - Problems and Prospects” Vol. 9, Journal of Law and Society.
Ali, S. S. (1985) “Case-Review: Supreme Court on Khula in Khurshid Bibi. vs. Mohammad Amin (PLD 1967, S.C.97)” Vol. 4, Journal of Law and Society. pp. 51-65.
Alidadi, K. (2005 / 2006) “The Western Judicial Answer To Islamic Talaq: Peeking Through the Gate Of Conflict Of Laws” Vol. 5. No.1, UCLA Journal of Islamic and Near Eastern Law.
Ansari, S. (1982) “Statutory Provisions Relating to Polygamy in Muslim Societies” Vol. 2, Islamic and Comparative Law Quarterly
Anderson, J.N.D. (1951) “The Personal Law of the Druze Community, World of Islam/ Die Welt des Islam” The Jordanian Law of Family Rights.
Anderson, J.N.D (1951) Invalid and Void Marriages in Hanafi Law Vol. XIII, Part 2, The Muslim World.
Ansari-Pour, M.A (1999-2000) “The Legal Relationship of a Father with his Illegitimate Child under Islamic and Iranian Law” – Vol. 6, Year book of Islamic and Middle Eastern Law.
Arabi, O. (2001) “The Dawning of the Third Millennium in the Shari’a: Egypt’s Law No.1 of 2000, or Women May Divorce at Will” Vol. 16, Arab Law Quarterly.
Bakht, N. (2004) “Family Arbitration Using Sharia Law: Examining Ontario’s Arbitration Act And Its Impact On Women” Vol. 1, No. 1, Muslim World Journal of Human Rights.
Berger, M.(1997) “The Legal System of Family Law in Syria,” Bulletin d’Etudes Orientales.
Buskens L. (2003) “Recent Debates On Family Law Reform In Morocco: Islamic Law As Politics In An Emerging Public Sphere” - Vol. 10, No. 1, Islamic Law and Society pp. 70-131(62)
Carroll, L. (1987) “Marriage Guardianship and Minors in Islamic Law” Vol. 7, Islamic and Comparative Law Quarterly.
_____________. (1998) “Orphaned Grandchildren in Islamic Law of Succession: Reform and Islamization in Pakistan: The Islamic Inheritance System” Vol.5, Islamic Law and Society.
__________(1996) “Qur'an 2:229: A Charter Granted to the Wife - Judicial Khul in Pakistan” Vol.3, Islamic Law and Society.
_________ (1996) “Qur’an 2:229: A Charter Granted to the Wife? Judicial Khul’ in Pakistan,” Vol. 3, Islamic Law and Society.
____________ (1986) “Muslim Women in India and England: Divorce and Alimony,” Vol. 30, Islamic Quarterly.
Cilardo, F. (1985) “The Evolution of Muslim Family Law in Egypt,” Vol. 65, Oriento Moderno.
Coulson, N. J.D. (1957) “Reform of Family Law in Pakistan” Vol. 7, Studia Islamica.
Daura, B. (1969) “The Limit of Polygamy in Islam” Vol. 3, Journal of Islamic and Comparative Law.
El-Alami, D. (1999-2000) “Remedy or Device? The System of Khul' and the Effects of its Incorporation into Egyptian Personal Status Law” Vol. 6, Year book of Islamic and Middle Eastern Law.
El-Cheikh, N. (1998-1999) “The 1998 Proposed Civil Marriage Law in Lebanon: the Reaction of the Muslim Communities” Vol. 5, Yearbook of Islamic and Middle Eastern Law.
Edge, I. (1989) “Egyptian Family Law: The Tale of the Jinn” Vol. 38, International and Comparative Law Quarterly.
Esposito, J. (1980) “Perspectives on Islamic Law Reform: The Case of Pakistan.” JILP.
El Fadel, M. (1998) “Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage: The Case of Maliki School,” Vol. 3, Islamic Law and Culture.
-------------- (1996) “The Social Logic of Taqlid and the Rise of the Mukhatasar: Issues and Problems” Vol. 3, Islamic Law and Society.
Fleur-Lobban, C. (1982) “Issues in the Child Custody Law of the Sudan” Vol. 4, Northeast African Studies.
Goolam, M.H.N. (2001) “Gender Equality in Islamic Family Law: Dispelling Common Misconceptions and Misunderstanding” International Family Law Journal.
Hardimg, A. (1995-1996) “Mut'at al-Talaq under Egyptian and Jordanian Law” Vol. 2, Yearbook of Islamic and Middle Eastern Law.
Hasan, A. (1999) “In Practice: Marriage in Islamic Law” Vol. 29 Family Law Journal.
Hinchcliffe, D. (1970) “Polygamy in Traditional and Contemporary Islamic Law” Vol. 1, Islam and the Modern Age.
______________ (1968) “Divorce in Pakistan: Judicial Reform” Journal of Islamic and Comparative Law
____________ “The Iranian Family Protection Act” Vol. 17, Islamic Comparative Law Quarterly.
____________ (1973) “The Widow’s Dower Debt in India” Vol. 4, Islam and the Modern Age.
Jilani, T.H. (2001) “Implementing the Right To Marry: A View from the Pakistani Courts” International Family Law Journal.
Jindani, M. (2004-2005) “The Concept of Mahr (Dower) in Islamic Law: The Need of Statutory Recognition by English Law” Vol.11, Yearbook of Islamic and Middle Eastern Law.
Kar, M. (2007) "Iranian Law and Women's Rights" Vol. 4 : Iss. 1.Muslim World Journal of Human Rights:
Kebir, Y. (1998-1999) “The Status of Children and their Protection in Algerian Law Vol. 5, Yearbook of Islamic and Middle Eastern Law.
Kamali, M.H. (1984) “Divorce And Women's Rights: Some Muslim Interpretations Of S. 2:228” Vol. 74, No. 2, The Muslim World. pp. 85.
Kennedy, C. H. (1999) “Islamic Legal Reform and the Status of Women in Pakistan” Vol. 2, Journal of Islamic Studies.
Kimber, R. (1998) “The Quranic Law of Inheritance: The Islamic Inheritance System” Vol. 5, No. 3, Islamic Law and Society. pp. 291-325.
Kopp, H. (2002) “Dress and Diversity: Muslim Women and Islamic Dress in an Immigrant/Minority Context” Vol. 92, No. 1-2, The Muslim World. pp 59–78.
Layish, A. (1976) “Women and Succession in the Druze Family in Israel” Vol. 11, Asian and African Studies.
________ (1976) “Prohibition on Reinstating a Divorced Wife in the Druze Family” Vol. 61, Asian and African Studies.
_________ (1979) “Islam as a Source of Law in the Druze Religious Courts” Vol. 14, Israel Law Review.
Mashhour, A. (2005) “Islamic Law and Gender Equality—Could There be a Common Ground? A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt” Vol. 27, No.2, Human Rights Quarterly.
Mahdi Zahraa; Normi A. Malek (1998) “The Concept of Custody in Islamic Law” Arab Law Quarterly, Vol. 13, No. 2, pp. 155-177.
Mahmood, T. (1992) “No More Talaq, Talaq ,Talaq- Juristic Restoration of the True Islamic Law on Divorce” Vol. 12, Islamic and Comparative Law Review.
Mayer, A. E. (1995) “Reform of Personal Status Laws in North Africa” Vol. 49, Middle East Journal.
Mehdi, R. (2005) “Facing the Enigma: Talaq-I Tafwiz A Need of a Muslim Woman in Nordic Perspective.” Vol. 33, International Journal of the Sociology of Law.
Meron, Y. (2001) “The Moslem Marriage Between Status and Contract” No. 92, Studia Islamica. pp. 197-203.
Mir-Hosseini, Z. (2002-2003) “Islamic Law and Feminism: The Story of a Relationship” Vol: 9,Yearbook of Islamic and Middle Eastern Law.
Mohammed, .K A (1994) “Muslim Perspective on Human Rights Islamic Law, Qadhis' Courts And Muslim Women's Legal Status: The Case Of Kenya”
Vol.4, No. l and 2, Journal Institute of Muslim Minority Affairs.
Moosa, E. (Fall, 2001 / Winter, 2002) “The Poetics and Politics of Law After Empire: Reading Women's Rights In The Contestations Of Law” Vol.1, No. 1, UCLA Journal of Islamic and Near Eastern Law.
Moosa, N. (2004) “An Over-View of Divorce and Dispute Resolution in Islamic Law” International Family Law Journal.
Moors, A. (1994) “Women and Dower Property in Twentieth-Century Palestine,” Vol. 1, Islamic Law and Society.
Moors A. (2003) “Public Debates On Family Law Reform Participants, Positions, And Styles Of Argumentation In The 1990s” Vol. 10, No.1, Islamic Law And Society. pp. 1-11.
Najjar, F. (1988) “Egypt’s Laws of Personal Status” Vol. 10, Arab Studies Quarterly.
Pearl, D. (1969) “Family Law in Pakistan,” Vol. 9, Journal of Family Law.
_________(1995) “The Application of Islamic Law in English Courts” Vol. 2, Yearbook of Islamic and Middle Eastern Law.
Pearl, D.(1995-1996) “The Application of Islamic Law in the English Courts” Vol. 2, Yearbook of Islamic and Middle Eastern Law.
Rahman, F. (1980) “A Survey of Modernization of Muslim Family Law” Vol. 11, Internal Journal of Middle Eastern Studies.
Ramadan, M. A. (2006) “Divorce Reform in the Sharia Court of Appeals in Israel (1992-2003)” Vol.13, No.2, Islamic Law and Society.
Rehman, J (2007) “The Sharia, Islamic Family Laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq” Vol. 21, No.1, International Journal of Law, Family and Policy.
Shaham, R. (1993) “A Woman's Place: A Confrontation with Bedouin Custom in the Sharia Court” Vol. 113, The Journal of the American Oriental Society.
__________(1994) “Judicial Divorce at the Wife’s Initiative: The Shari’a Courts of Egypt, 1920-1995,” Vol. 1, Islamic Law and Society.
________(1995) “Custom, Islamic Law and Statutory Legislation: Marriage Registration and Minimum Age at Marriage in the Egyptian Shari’a a Courts” Vol. 2 Islamic Law and Society.
___________(1999) “State, Feminists and Islamists-the Debate Over Stipulations in Marriage Contracts in Egypt,” No. 62, Bulletin of the School of Oriental and African Studies.
_________ (1960) “A Law of Personal Status for Iraq” Vol. 9, Islamic and Comparative Law Quarterly.
_________ (1963) Changes in the Law of Personal Status in Iraq” Vol. 12, Islamic and Comparative Law Quarterly
______ (1950) “The Problem of Divorce in the Sharia Law of Islam: Measures of Reform in Modern Egypt” JRCAS. 37
Siddiqui, M. (1995) “Mahr: Legal Obligation or Rightful Demand?” Vol. 6, Journal of Islamic Studies.
Shah, S.S. (1994) “Fosterage as a Ground of Marital Prohibition in Islam and the Status of Human Milk Banks” Vol. 9, Arab Law Quarterly. pp.3 -7.
Tasseron, L.A. (2003) “Adoption, Acknowledgement of Paternity and False Genealogical Claims in Arabian and Islamic Societies” Vol.66 Bulletin of the School of Oriental and African Studies. pp.169-192.
Welchman, L. (1994) “Special Stipulations in the Contract of Marriage: Law and Practice in the Occupied West Bank”, Vol. 11 Recht van de Islam.
___________ (2001) “Capacity, Consent and Under-Age Marriage in Muslim Family Law” The International Survey of Family Law.
______________ (1988) “The Development of Islamic Family Law in the Legal System of Jordan,” Vol. 37 International and Comparative Law Quarterly.
Yazbak, M. (2001- 2002) “Minor Marriages and Khiyar Al-Bulugh in Ottoman Palestine: A Note on Women's Strategies in a Patriarchal Society” Vol. 9, Islamic Law and Society.
Yilmaz, I. (2000) “Muslim Law in Britain: Reflections in the Socio-Legal Sphere and Differential Legal Treatment” Journal of Muslim Minority Affairs Vol. 20, No. 2, pp. 353-360
Zahraa, M.(1996) “The Legal Capacity of Women in Islamic Law” Vol. 11, No. 3 Arab Law Quarterly. pp. 245-263.
Zahraa, M. and Malek, N. (1998) “The Concept of Custody in Islamic Law” Vol. 13, No.3, Islamic Law Quarterly.
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List of cases:
1. Abbassi v Abbassi and Another [2006] EWCA Civ 355
2. Chauhan v chauhan, c (children)[2005] EWCA Civ 640
3. SK [2005] 3 All E.R.421
4. Hashem v Shayif [2006] EWCA Civ 83
5. Khurshid Bibi vs Mohd Amin PLD 1967 Sc 97.
6. Abassi vs Abassi 2006 WL 901088.
7. Seemi v. Seemi (1990) 140 N.L.J 747
8. R. v. Bibi (1980) 1 W.L.R. 1193
9. Shahnaz v. Rizwan (1964)1 Q.B.D. 390; (1964) 2All.E.R. 993; (1964) 3 W.L.R. 1506
10. Qureshi v. Qureshi (1971) 2 W.L.R. 518
11. Bibi v. Chief Adjudication Officer
12. Chaudhry v. Chaudhry (1976) Fam 148
13. Hussain v. Hussain (1982) 3 All E.R. 369; (1982) 3 W.L.R. 679; (1983) Fam 1; (1983) 4 F.L.R 339
14. Quoraishi v. Quoraishi (1983) 4 F.L.R. 706; (1983) 3 Fam. Law 86; (1985) F.L.R. 780
15. Quazi v. Quazi (1973) 3 All E. R. 897(1979) 3 W.L.R. 833; (1980) A.C. 744; 10 Fam. Law 148
16. R. Registrar General of Births, Deaths and Marriages, ex p. Minhas (1976) 2 All E.R. 246 (1977) Q.B. 1
17. R (on the application of Begum (by her litigation friend, Rahman)) (Respondent) v. Head teacher and Governors of Denbigh High School (Appellants) [2006] UKHL 15;
18. R (on the application of Begum (Shabana) v Head teacher and Governors of Dinbigh High School [2005] EWCA Civ 199; [2005] 1 FCR 530
19. R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 All ER 306, [1990] 3 WLR 986
20. Secretary of State for the Home Department v. Syeda Khatoon Shah (1997) Imm.A.R. 584.
21. Alhaji Mohammad v. Knott (1969) 1 Q.B. 1 (1968) 2 W.L.R. 1446; (1968) 2 All E.R. 563
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