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Actionable marital harm

2015-07-29
July 29, 2015

 

ACTIONABLE MARITAL HARM: Analysis & prognosis

 

Is a wife suffering harm devoid of remedies in Islam?

 

We daily hear of extreme physical, emotional and social abuse to which a growing number of wives are subjected to by their Muslim husbands; and flanking this quotidian tragedy is the  learned people’s imperturbable indifference to their plight. Endless attempts at conciliation lead to naught, since no mechanism has been designed and set in motion by those mandated to guide the members of this ummah away from futile attempts at rapprochement into decisive verdicts.

As a result, the arena of discourse is invariably restricted to a trio of alternatives, to a narrow basket from which harmed women are solicited to select the “lesser evil:”

a)      “You are married by nikāh, and you just have to accept that the sharī`ah favours man”;

b)     “Your only escape is to have your union registered as a civil marriage, for at least the secular courts grant you the way out which Islamic law negates you”;

c)      “We have to support a legislation that will allow ordinary judges to adjudicate in nikāh-related disputes, no matter how little conversant with the Dīn, if at all, they might be”.

 

Is this analysis accurate, however, or is it no more than a shallow and precipitate mirroring of our misconceptions about the sharī`ah?

This is a theme which, Allah the Exalted willing, we are going to fathom in its different facets in the coming issues of the present magazine.

 

Muslims must face up, in their hearts and not just by their tongues, to the unquestionable reality that Allah’s final sharī`ah to humankind is a broad median path wherein rigour is always escorted by the paramount element of mercy, for men and women, adults and children, black and white, Muslims and otherwise, free subjects and people under bondage alike.

Allah has not made the implementation of the halāl other than easy to accomplish on the part of His slaves.

In a marital relationship, man can always extricate himself from harm inflicted on his person through talāq, of which he exclusively holds the key, bearing in mind, of course, that in a generic sense it is a disliked lawful act.

The fact that a Muslim woman, unless her secularized counterpart, does not possess a concomitant right to divorce herself on any ground, a fortunate blessing given that 90% of separations worldwide are attributed to females, in no way entails an absence of legal recourse if she is subjected to harm.

In our fiqh, we encounter a mechanism termed tatlīq bid-darar, or dissolution of the marriage on the ground of actionable harm following a legal suit instituted by the aggrieved wife.

The motivational springhead of such a judicial redress is the overarching principle of Islam, enunciated in a well-known hadīth, that no self-infliction of harm or the infliction of harm on others can be countenanced (“darar wa-lā dirār”).

 

While good marital cohabitation is enjoined in the Dīn, as it is indeed the case in every religion or culture or code of ethics, it is a patent fact that every spouse, just as every human being, is called upon to stomach a certain amount of what he or she subjectively deems to be harm.

So what is actionable harm which can justifiably found a legal action before a Muslim decision-maker?

It is a harm in the presence of which a continuing marriage rapport cannot be objectively envisaged. There is no numerus clausus or closed number of actionable harms. Judicially recognized darar can take multifarious forms, psychological, corporeal, intellectual, verbal, existential, financial and miscellaneous.

Generally speaking, justiciable harm is broadly capable of being classified under the following five categories:

i) Harmful treatment; ii) Discarding sexual intercourse; iii) Failing to maintain one’s wife; iv) The husband’s absence from the marital home for one uninterrupted year or more; v) Incarceration of the husband or his captivity.

In this article we shall be focusing on the first type.

 

Harmful treatment, as remarked here above, can assume varied shapes: Verbal abuse and cursing the wife or her immediate relatives, light physical beating unjustified by any valid legal reason, physical violence, discarding communication with her altogether, turning one’s face away from her in bed, preventing her from pursuing her vocation indoors, i.e. from the house, if her state becomes corrupted as a result of such interdiction, sleeping with her co-wife in her presence, because of her ingrained jealousy, and keeping her in a limbo so that she is neither a “wife” to whom conjugal rights are extended nor a woman released from the marital knot and free to carve out her destiny [1].

 

Allah has indeed said in His Noble Book: «[T]hen either retain them with beneficence and courtesy or release them with beneficence and courtesy. Do not retain them by force, thus overstepping the limits. Anyone who does that has wronged himself» (Sūrah al-Baqarah: 231, 229 in the Warsh mushaf).

 

How is the wife to prove any such actionable harm?

a) One way is for two witnesses of integrity to adduce evidence which tends to establish the ongoing harm occasioned by her husband in one of the aforesaid recognized modes. The pair of such witnesses would declare in court in the process that, to their knowledge, no legal justification exists for such injurious behaviour to her detriment.

b) The testimony of “widespread acquaintance”, which is a form of admissible hearsay evidence = Two or more people testify that they have not ceased to hear, both inside and outside the marital home, from the couple’s relatives or servants, that the husband is being wrongfully, i.e. unjustifiably, hurtful to his wife. The wife who has launched any litigation premised on such variety of “communal” testimony must take a solemn judicial oath corroborating the alleged occurrence of the widely known continuous harm. The reason for the said additional testimonial requisite is the probative frailty of a hearsay evidence deflecting from the general rule that witnesses of integrity should be eyewitnesses to the events founding one’s cause of action.

 

What are the judicial consequences flowing from a tribunal’s determination that actionable harm has or has not been sufficiently proven by the plaintiff’s wife?

If proof is established through either one of the said two testimonial paths (bearing in mind, of course, that the direct testimony of two witnesses of integrity carries far greater probative weight in the eyes of the dispute-resolver), and the harm is plainly evident, as in the instance of conspicuous signs of physical assault, alternatively, though not so ostensible, the wife inserted in the marriage contract a clause enabling her to divorce herself if she suffered harm at his hands, the judge will issue an order dissolving the union. He does so regardless of the fact that the harmful conduct of the husband might not be of a recurrent nature, so long as the visible trace of the physical encroachment is on the wife’s body, or because the said express stipulation of a right to resile from the marriage due to harm corroborates the evidence she tenders in court and legally justifies a judicial dissolution, without the need to wait and see whether the harm complained of is repeated by the husband.

As for lighter species of harm, consonantly with what is detailed here under, they can lead to a judicial order of dissolution of the marriage only in the presence of reiteration thereof on the husband’s part.

On the other hand, if the harm she is alleging is not so openly transparent, as in the case of ignoring her or hitting her lightly, and the wife has not included a contractual clause empowering her self-divorce in the face of harmful behaviour experienced by her person, the judge has to notify the husband that, should he persist in his aggrieving comportment, he would intervene and separate his wife from him.

The causative foundation of such judicial temporization lies in the fact that proclaiming a divorce is a serious matter, one that ought to be dealt with other than lightly or hastily.

 

Let us assume that a wife who pressed a claim for harm-engendered dissolution of the nuptials which she failed to buttress in court by sufficiently cogent proof to justify an immediate separation, brings a new legal action complaining of the same problem, and that her husband, on both occasions, refutes her accusation and precludes her from showing adequate ground for a divorce by means of the counter-allegations he testifies to. Let us not forget that many domestic abuses and offences take place within the four walls of a frequently insulated home environment, and that, accordingly, a sufficient quantum of proof is often lacking.

The Hanafī madhhabprovides no redress in that scenario.

Imām Mālik, taking by the following Qur’ānic āyah, calls for the judge to send two arbiters or umpires (ba`th al-hakamayn):

 «If you fear a breach between a couple, send an arbiter from his people and an arbiter for her people. If the couple desire to put things right, Allah will bring about a reconciliation between them. Allah is All-Knowing, All-Aware» (Sūrah an-Nisā’: 35).

Imām Mālik’s position is echoed by the majority of Muslim scholars, including Ibn Kathīr.

What happens is as follows: The judge instructs the plaintiff wife to reside amid virtuous Muslims who observe what transpires between the two spouses, so that they might testify about what they have personally heard and seen. If that does not suffice to shed clarity on the prevailing status quo, the judge orders two arbiters to be dispatched at a later stage, for them to try and conciliate between the couple to the best of their ability, failing which the pair of umpires dissolve the marriage where no reconciliation can be brokered.

They are given a closely demarcated period (capable of a judicial extension) within which to carry out their diagnosis and prognosis.

There are naturally a number of detailed rules on how arbiters should fulfil their delicate mission.

Existing civil codes of Muslim countries, such as Egypt, have recognized the wisdom of treading this path even if they are not predominantly Mālikis.

They have thus accepted and codified the principle of sending the two arbiters when no primary route of ascertaining where the truth of the disputed issue lies can be walked upon.

 

As regards the nature of a divorce pronounced on the ground of harm, it consists in one irrevocable pronouncement of divorce. What it means is that, once it has been issued by the judge or by the arbiters (“substituting” for him, so to speak), the husband has no unilateral right to reclaim the former spouse for himself. The two cease to be husband and wife, and are free to choose other consorts. They can only come back together pursuant to a fresh consensual marriage fulfilling the normal requirements of a valid union (a new dowry, guardianship, witnesses at the stage of its consummation, etc). The reason for it is that harm cannot be lifted away by a revocable divorce, as the husband could then force her to cohabit with him fully despite her absence of consent thereto.

Finally, it is worth observing that one of the counter-proofs which extinguish the wife’s claim to actionable harm consists in the situation where the husband, after she instituted her legal suit complaining of such harm, shows that she willingly empowered him to enjoy her carnally, even though she might be unaware that such action of hers would extinguish her claim. There would in fact be an irreconcilable contradiction between lamenting an ongoing harm and yet surrendering herself in full, out of her volition, to the the intimate exercise of conjugal rights on the part of an allegedly harmful spouse.

 

NOW we come to the crux of the practical aspect: What should we do in order to translate all this lovely stuff into enforceable rights and duties in a place like South Africa where no Islamic tribunal operates?

“We have no Islamic court and we live in a majority non-Muslim country”, is that not the litany we are daily fed?

The answer is simple:

  1. Drafting and utilizing contracts of nikāh which can be personalized by the inclusion of some self-protecting conditions endorsed by the sharī`ah. This, in itself, is a fascinating subject which demands a comprehensive treatment in its own right.
  2. All nikāh contracts are capable of including a standard clause to the effect that whatever dispute arises out of them would be arbitrated in terms of the sharī`ah, by a Muslim decision-maker, under the Arbitration Act of South Africa 42 of 1965.

Some lawyers might rush to tell you that the said enactment does not apply to disputes involving a possible change of legal status (divorce, insolvency, attaining  majority, interdiction of prodigals from disposing of their properties, a declaration of lunacy, etc). The truth, however, is that there is a bar to arbitration only in respect of claims about “legally recognized marriages”. In general, the bar only applies to the alteration of a legal status which takes effect in terms of the secular law. It has no application in the distinguishable context of an Islamically contracted nikāh, which is unrecognized by the secular legal system. For them, it simply does not exist. If it does not exist, it follows that it cannot give rise to the acquisition or subsequent modification of any legal status, including the status of being married in the eyes of the law (as opposed to the Law). One cannot thus contemplate a dispute on changing any such status which the seculars might appropriate for themselves and reserve for the process of adjudication in their courts, as opposed to independent and even ad hoc Muslim arbitrators.

 

To come back to our opening “stanza”, it is therefore untrue that wives reeling under the effects of marital harm are divested of remedies in Islam, that they can concretely enjoy some (even though they might run contrary to the Dīn) only if they “register a normal court marriage”, or that they stand in need of some aberrant “Muslim Family Law” statute passed by a non-Muslim legislature.

The only thing which stands in the way of our reactivation of the fiqh is the meagre extent of our eagerness to live-out Islam.

There is no strength or power save in and by Allah.

 



[1] Note should be taken of the fact that the husband taking another wife is no recognized ground in Islam for launching a claim of actionable harm. The woman is entitled to legal relief only if she explicitly included a clause in her marriage contract granting her right to separate from her husband in that event.

 



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