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

by Layish,Ahron

• ISBN13: 9781412805841
• ISBN10: 1412805848
• Format: Nonspecific Binding
• Copyright: 2006-05-15
• Publisher: Routledge

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