[News] Riverbend: Shari'a and Family Law in Iraq

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Thursday, January 15, 2004

Shari'a and Family Law...

On Wednesday our darling Iraqi Puppet Council decided that secular Iraqi 
family law would no longer be secular- it is now going to be according to 
Islamic Shari'a. Shari'a is Islamic law, whether from the Quran or quotes 
of the Prophet or interpretations of modern Islamic law by clerics and 
people who have dedicated their lives to studying Islam.
The news has barely been covered by Western or even Arab media and Iraqi 
media certainly aren't covering it. It is too much to ask of Al-Iraqiya to 
debate or cover a topic like this one- it would obviously conflict with the 
Egyptian soap operas and songs. This latest decision is going to be 
catastrophic for females- we're going backwards.

Don't get me wrong- pure Islamic law according to the Quran and the Prophet 
gives women certain unalterable, nonnegotiable rights. The problem arises 
when certain clerics decide to do their own interpretations of these laws 
(and just about *anyone* can make themselves a cleric these days). The 
bigger problem is that Shari'a may be drastically different from one cleric 
to another. There are actually fundamental differences in Shari'a between 
the different Islamic factions or 'methahib'. Even in the same methahib, 
there are dozens of different clerics who may have opposing opinions. This 
is going to mean more chaos than we already have to deal with. We've come 
to expect chaos in the streetsŠ but chaos in the courts and judicial system 
too?!

This is completely unfair to women specifically. Under the Iraqi 
constitution, men and women are equal. Under our past secular family law 
(which has been in practice since the '50s) women had unalterable divorce, 
marriage, inheritance, custody, and alimony rights. All of this is going to 
change.

I'll give an example of what this will mean. One infamous practice brought 
to Iraq by Iranian clerics was the 'zawaj muta'a', which when translated by 
the clerics means 'temporary marriage'. The actual translation is 'pleasure 
marriage'- which is exactly what it is. It works like this: a consenting 
man and woman go to a cleric who approves of temporary marriage and they 
agree upon a period of time during which the marriage will last. The man 
pays the woman a 'mahar' or dowry and during the duration of the marriage 
(which can be anything from an hour, to a week, a month, etc.) the man has 
full marital rights. Basically, it's a form of prostitution that often 
results in illegitimate children and a spread of STDs.

Sunni clerics consider it a sin and many Shi'a clerics also frown upon itŠ 
but there are the ones who will tell you it's 'halal' and Shari'a, etc. The 
same people who approve it or practice it would, of course, rather see 
their daughters or sisters dead before they allow *them* to practice it- 
but that's beyond the point.

Anyway, secular Iraqi family law considers it a form of prostitution and 
doesn't consider a 'pleasure marriage' a legitimate marriage. In other 
words, the woman wouldn't have any legal rights and if she finds herself 
pregnant- the child, legally, wouldn't have a father.
So what happens if a married man decides to arrange a pleasure marriage on 
the side? In the past, his legitimate wife could haul him off to court, and 
ask for a divorce because the man would be committing adultery under Iraqi 
family law. That won't be the case now. Under certain clerics, a pleasure 
marriage will be considered legal and the woman won't have a case for 
divorce. Under other clerics, he'll be committing adultery- so who gets to 
judge? The cleric she chooses, or the cleric he chooses?

Another example is in marriage itself. By tribal law and Shari'a, a woman, 
no matter how old, would have to have her family's consent to marry a man. 
By Iraqi law, as long as the woman is over 18, she doesn't need her 
family's consent. She can marry in a court, legally, without her parents. 
It rarely happened in Iraq, but it *was* possible.

According to Iraqi secular law, a woman has grounds to divorce her husband 
if he beats her. According to Shari'a, it would be much more difficult to 
prove abuse.

Other questions pose themselves- Shari'a doesn't outlaw the marriage of 
minors (on condition they've hit puberty). Iraqi secular law won't allow 
minors to marry until the age of at least 16 (I think) for women and the 
age of 18 for men.

By Iraqi civil law, parents are required to send their children to complete 
at least primary school. According to Shari'a, a father can make his son or 
daughter quit school and either work or remain at home. So what happens 
when and if he decides to do that? Does Shari'a apply or does civil law apply?

There are hundreds of other examples that I can think of and that make me 
feel outrage. I practice Islam, but do I want an Islamic government? No. I 
feel that because we have so many different methahib and religions, any 
religious government is bound to oppress some faction of society. It's 
already happening in the south where fundamentalist Shi'a are attacking 
Christian families and shops.

Juan Cole had something to say about the subject and he referred to an 
article written in Financial Times appropriately titled, "Iraqi plan for 
Sharia law 'a sop to clerics', say women". Unfortunately, the writers of 
the article apparently have no background on secular Iraqi law beyond what 
the GC (Governing Council) members have told them. The fundamentalist GC 
members claim that civil Iraqi law forced people to go against their 
doctrine, which isn't true because a large part of civil law was based on 
Shari'a or the parts of Shari'a that were agreed upon by all the differing 
Islamic factions (like the right to divorce) and taking into consideration 
the different religious groups in Iraq.

Women are outragedŠ this is going to open new doors for repression in the 
most advanced country on women's rights in the Arab world! Men are also 
against this (although they certainly have the upper-hand in the situation) 
because it's going to mean more confusion and conflict all around.

What happens when all the clerics agree that a hijab isn't 'preferred' but 
necessary? According to this new change in the 'ahwal shakhsiya' laws or 
'personal circumstances' laws, all women will have to cover their heads and 
according to Shari'a, if a woman's husband decides that she can't continue 
her education or work, she'll have to remain a house-wife.
Please don't misunderstand--any oppression to women isn't a reflection on 
Islam. It's a reflection on certain narrow minds, ignorance and the 
politicization of religion. Islam is a progressive religion and no religion 
is clearer on the rights of women--it came during a time when women had no 
rights at all.

During the sanctions and all the instability, we used to hear fantastic 
stories about certain Arab countries like Saudi Arabia, Kuwait, Oman, and 
Qatar, to name a few. We heard about their luxurious lifestyles--the high 
monthly wages, the elegant cars, sprawling homes and mallsŠ and while I 
always wanted to visit, I never once remember yearning to live there or 
even feeling envy. When I analyzed my feelings, it always led back to the 
fact that I cherished the rights I had as an Iraqi Muslim woman. During the 
hard times, it was always a comfort that I could drive, learn, work for 
equal pay, dress the way I wanted and practice Islam according to my values 
and beliefs, without worrying whether I was too devout or not devout enough.

I usually ignore the emails I receive telling me to 'embrace' my new-found 
freedom and be happy that the circumstances of all Iraqi women are going to 
'improve drastically' from what we had before. They quote Bush (which in 
itself speaks volumes) saying things about how repressed the Iraqi women 
were and how, now, they are going to be able to live free lives.

The people who write those emails often lob Iraq together with Saudi 
Arabia, Iran and Afghanistan and I shake my head at their ignorance but 
think to myself, "Well, they really need to believe their country has the 
best of intentions--I won't burst their bubble." But I'm telling everyone 
now--if I get any more emails about how free and liberated the Iraqi women 
are *now* thanks to America, they can expect a very nasty answer.

- posted by river @ 7:55 PM



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