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9781412805841

Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of the Shari'a Courts in Israel

by
  • ISBN13:

    9781412805841

  • ISBN10:

    1412805848

  • Format: Nonspecific Binding
  • Copyright: 2006-05-15
  • Publisher: Routledge

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Summary

This book is methodologically unique in scholarly literature on Muslim society. Its originality lies in the fact that the rich material offered by the shari‘a courts is given a thorough analysis with a view to drawing conclusions about the present-day phenomena in Arab society and processes that the society has been undergoing in modern times. Aharon Layish examines every aspect of the social status of Muslim women that fi nds expression in the shari‘a courts: the age of marriage, stipulations inserted in the marriage contract, dower, polygamy, maintenance and obedience, divorce, custody of the children, guardianship, and succession. Each chapter opens with a short legal introduction based on all the sources of law applying in shari‘a courts, followed by social analyses and a study of the attitudes and approaches of the qadis, or Muslim religious judges. Layish examines the relationship between shari‘a and Israeli legislation: Do shari‘a courts have regard to the provisions of Israeli law? What is the relationship between shari‘a and social custom, and which is decisive in regard to Israeli Muslim women? To what extent does Israeli law actually affect Israeli Muslim women? What is the attitude of the qadis toward Israeli legislation? Women and Islamic Law in a Non-Muslim State is an important and original study that will be of interest to students and scholars of Islamic law, comparative law, sociology, and modernization. "I found the book both informative and suggestive. Not only does it provide specifi c information about the problems involved in the application and manipulation of a number of different legal codes dealing with family roles and relationships, but it throws some light on the evolution of the traditional, patrilineal, patriarchal family in its adaptation to an alien sociopolitical environment. This subject lies at the very heart of all studies of the global process called ‘modernization.'"-Amal Rassam, American Journal of Sociology

Table of Contents

FOREWORD xiii
PREFACE xv
INTRODUCTION 1(13)
Chapter One. AGE OF MARRIAGE
I. Legal Background
14(2)
II. Marriages of Minor Girls
16(6)
III. Rise in the Age of Marriage
22(2)
IV. The Qadis and the Age of Marriage
24(6)
Chapter Two. STIPULATIONS INSERTED IN CONTRACTS OF MARRIAGE
I. Legal Background
30(1)
II. Resort to the Stipulation
31(3)
III. The Qadis and Stipulations
34(6)
chapter Three. DOWER
I. Legal Background
40(1)
II. Prompt Dower
41(10)
III. Deferred Dower
51(5)
IV. The Problem of Excessive Dower
56(4)
V. The Qadis and Dower
60(12)
Chapter Four. POLYGAMY
I. Legal Background
72(2)
II. Contravention of the Ban on Polygamy
74(4)
III. The Decline of Polygamy
78(2)
IV. The Qadis and Polygamy
80(11)
Chapter Five. MAINTENANCE AND OBEDIENCE
I. Legal Background
91(1)
II. Causes of Claims for Maintenance and of Disobedience
92(9)
III. The Rebellious Woman
101(3)
IV. Maintenance of Women within the Wider Family Circle
104(2)
V. The Qadis and Maintenance and Obedience
106(19)
Chapter Six. DIVORCE
I. Causes of Divorce
125(7)
II. Divorce on the Husband's Initiative
132(21)
1. Legal Background
132(3)
2. Divorce against the Wife's Will
135(7)
3. The Deterrent Effect of the Penal Sanction
142(11)
a. The wife's consent to divorce
143(8)
b. Permission for divorce granted by the court
151(1)
c. Reliance on grounds provided for judicial dissolution
152(1)
III. Dissolution on the Wife's Initiative
153(20)
1. Talaq Divorces
153(10)
a. Delegated repudiation
153(3)
b. Suspended repudiation
156(2)
c. Rebelliousness
158(1)
d. Divorce pronounced in a state of intoxication
158(1)
e. "Renunciation divorces" and "compensation divorces"
159(4)
2. Judicial Dissolution
163(10)
a. Option of puberty
163(1)
b. Dissolution by mutual imprecation
164(1)
c. Defects and diseases of the husband
164(1)
d. Dissolution of marriage to an absent husband
165(3)
e. Discord and incompatibility
168(3)
f. Dissolution of the marriage of a girl under 17
171(1)
g. Termination of an irregular or void marriage
172(1)
IV. Effects of Divorce
173(5)
1. Irrevocable and Revocable Divorce; Triple Repudiation
173(4)
2. Maintenance during the Waiting-Period
177(1)
V. Decline of the Divorce Rate
178(2)
VI. The Qadis and Divorce
180(66)
1. Establishment of Peace between the Parties
180(1)
2. Divorce on the Husband's Initiative
181(5)
a I he freedom of talaq
181(3)
b. Suspended repudiation
184(2)
c. Divorce pronounced in a state of intoxication
186(1)
3. The Ban on Divorce against the Wife's Will
186(11)
a. The Knesset's restriction on the freedom of talaq
186(1)
b. The wife's consent to the divorce
187(2)
c. Suspended repudiation as a means to circumvent the penal sanction
189(2)
d. Confirmation and registration of divorce
191(4)
e. Permission for divorce granted by the court
195(2)
4. Dissolution on the Wife's Initiative
197(13)
a. Talaq divorces:
197(1)
delegated repudiation,
197(1)
"renunciation divorces" and "compensation divorces,"
198(1)
b. Judicial dissolution:
198(12)
defects and diseases of the husband,
199(1)
dissolution of marriage to an absent husband,
200(6)
discord and incompatibility,
206(3)
dissolution of the marriage of a girl under 17,
209(1)
termination of irregular or void marriage,
209(1)
5. Effects of Divorce
210(80)
a. Triple repudiation and revocable divorce
210(2)
b. Maintenance during the waiting-period and compensation to divorced women
212
Chapter Seven. CUSTODY
I. Legal Background
246(1)
II. The Exercise of the Right to Custody by the Mother
247(3)
III. Deprivation of Women's Right to Custody
250(2)
IV. The Qadis and Custody
252(11)
Chapter Eight. GUARDIANSHIP
I. Legal Background
263(2)
II. Women as Guardians of Their Children
265(3)
III. Deprivation of Women's Right to Guardianship
268(3)
IV. The Qadis and Guardianship
271(8)
Chapter Nine. SUCCESSION
I. Legal Background
279(3)
II. The Issue of a Succession Order on a Woman's Initiative
282(4)
III. Women and the Law Applicable to Inheritance
286(4)
IV. Disinheritance of Women:
290(11)
renunciation of succession rights,
290(2)
wills,
292(3)
gifts,
295(1)
waaf,
296(2)
appointment of estate administrator,
298(1)
omission from the list of successors,
299(1)
appointment of a guardian over the property of a minor,
300(1)
V. The Extent to Which Women Inherit in Practice
301(6)
VI. The Qadis and Succession
307(20)
SUMMARY 327(12)
SOURCES AND BIBLIOGRAPHY
1. Archival Material
339(1)
a. Sijills of the Sharia Courts
339(1)
b. Registers of Marriage Contracts
340(1)
c. Land Registry and Israel Lands Administration, Jerusalem
340(1)
d. Letters from Qadis to the Author
340(1)
2. Majallat al-Akhbtir
340(1)
3. Interviewees
340(2)
4. Islamic Legal Collections and Commentaries
342(1)
5. Official Publications
342(1)
6. Statistical Publications
343(1)
7. Books, Periodicals and Unpublished Dissertations
344(5)
8. Newspapers and Periodicals
349(2)
GENERAL INDEX 351(14)
GLOSSARY OF ARABIC TECHNICAL TERMS 365

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