Can parents force marriage in Islam?
On the position of women and men in Islamic law
Family law in Islamic countries is basically based on three sources of law; positive law, classical Islamic law and common law (urf). Similar to other areas of law such as criminal law, family law was codified as positive law in the 20th century, but its content contains more references to classical Islamic law than any other area of law, as it remained largely untouched during colonization and in post-colonial Muslim societies is. In most countries, the constitution refers right at the beginning that in the case of unregulated issues in positive law, the regulations of classical Islamic law must be used.
Political context of family law
In Islamic countries, family law today contains numerous provisions that discriminate against women, since family law is based on a hierarchical understanding of the roles of men and women. Various attempts at reform were made in various Muslim countries in the 20th century. But these were often rejected by conservative forces as an attack on Islamic law and its values, and so family law remains the subject of controversial debates about cultural and religious identity to this day. The re-Islamization in some Islamic states from the second half of the 20th century made a reform of family law and thus also equal rights between men and women more difficult.
Marriage and marriage
Marriage in Islam is a contract between a man and a woman. Consent from both sides is fundamentally required.
Arranged marriages have become rarer, especially in urban areas, but are still often practiced in rural areas. This can be done with the consent of both spouses or under certain circumstances it can be forced (forced marriage).
When getting married, in some places a woman is assigned a male guardian (wali, usually the father) who has to give his consent to the marriage. If there is a conflict between the guardian and the bride, only a judge can grant permission to marry against the guardian's decision.
In classical Islamic law, the ability to marry is reached with puberty. However, depending on the law school, there are different views on when this age is reached. The positive law can provide for a higher age. The age barriers, especially for girls, remain low in many Islamic states (see children's rights in Islamic law). Even if positive law provides for a higher age at marriage, a marriage that was previously concluded under Islamic law often remains valid. This means that child marriages are still possible.
Marriage after rape
Highly problematic are regulations from criminal law that, for example, grant a sex offender in many Islamic countries impunity after being raped if he marries his victim after the crime. This is to save the honor of the woman for the family, although the actual consent of the woman or the minor remains questionable.
According to the Koran, a man has the right to marry four women if he is able to treat them equally. In the course of the reform efforts, certain states such as Egypt (2000) and Morocco (2004) have introduced restrictions in family law, which for example require the consent of the first wife. In addition, a judicial review must be carried out to determine whether a man meets the economic requirements to enter into a polygamous marriage. It often remains questionable whether the consent of the first wife offers an actual option with regard to the consequences. In Turkey and Tunisia, polygamy is prohibited by law.
Temporary marriage is a specialty of Shi'aism. In Iran, temporary marriage is legal, and the man has the right to have an unlimited number of temporary marriages. The woman who enters into a temporary marriage is legally worse off than a woman who enters into an open-ended marriage; the husband is not obliged to provide maintenance and housing for the wife. Since the temporary marriage contract does not require any witnesses and does not have to be concluded by a judge, the wife could get into evidence difficulties if the marriage is disputed by the husband. Prostitutes in Shiite areas work under the guise of temporary marriage and are in a particularly vulnerable position because prostitution is illegal.
The bridal gift, in Arabic mahr, is an essential element of the marriage contract and must - at least in theory - be paid to the woman herself (and not to the father or guardian, for example). There are different views of the function of the bridal gift. The bride gift can ensure the financial independence of the wife after the divorce. It can serve as a “contractual penalty” in the event of a divorce so that the husband does not arbitrarily exercise his right to divorce. The bridal gift is also seen by critics as an antiquated tradition that degrades women to the object.
Understanding of roles and the right to chastise
In Islamic law, the relationship between husband and wife is characterized by mutual rights and obligations. The husband's primary duty is to provide for the wife's support. Even if the woman has assets, she is not obliged to contribute them to the household.
The controversial and much discussed Sura 4:34 of the Koran provides a husband's right to chastise, which he has by virtue of his authority over his wife in the event of disobedience. Accordingly, the wife has an obligation to obey the husband. This includes running the household, bringing up children, but also asking for permission if she wants to work or travel. If the husband fails to meet his maintenance obligations, the wife can refuse to obey him. This also applies the other way round: If the wife does not fulfill her duties, the husband is not obliged to provide for her maintenance.
According to classical Islamic law, Muslim men are allowed to marry a Christian or a Jew. However, this does not apply the other way around: a different religious affiliation of the spouse is a reason for preventing marriage for the Muslim woman. Civil marriages concluded abroad between a Muslim woman and a non-Muslim man are usually not recognized in the home country.
Classical Islamic law knows divorce - although the spouses are not equally entitled to this. The husband can sometimes declare a divorce simply by uttering the divorce formula three times and in many cases without court approval; A woman, on the other hand, may only get divorced in certain situations - for example if the man is sterile or if the man has "delegated" her right to divorce - and only with the approval of a court.
The woman also has the option of requesting a khul divorce from her husband. The husband must give his consent to the divorce. Often this happens when the woman renounces her bridal gift or gives it back. This makes it difficult for the woman to get a divorce, as there is no post-marital maintenance under Islamic law.
In some countries, reform efforts are attempting to improve the position of women, even if the legal reforms often do not have a major impact on practice in rural areas. For example, in certain countries the man's formula for breach has been abolished and a maintenance obligation has been introduced, as well as legally preventing women from being banished from the marital home after a breach.
Unequal treatment of women persists in all Islamic countries. In addition to divorce law, this also applies to child custody.
Way out prenuptial agreement?
Marriage contracts, in which the woman is granted the right to travel or provisions relating to polygamy are set out, often play a central role in alleviating disadvantages for women in marriage and divorce law. If the contract is violated by the spouse, the woman is usually entitled to a divorce in return. The legal position of women is thus in fact somewhat improved, but there is obviously still a lack of effective equality.
Islamic inheritance law
Further inequalities exist in inheritance law for close female relatives such as the wife, mother, daughter and sister. Since in a Muslim family all the duties of a financial nature are incumbent on men, this is a disadvantage for women compared to men entitled to inheritance. An example of this discrimination can be seen in the calculation of the share of inheritance between siblings: a sister inherits half of the brother's share.
Depending on the country, there are clothing regulations for women or even regulations on gender segregation, for example in the field of education. Sometimes women are excluded from public life or from public office. In court proceedings, for example in the case of testimony or the calculation of a compensation payment, a woman has a significantly lower position than a man. Often their testimony weighs only half as much as the man's.
Reservations about the UN Convention on Women’s Rights
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has been ratified by almost all countries worldwide. Most Islamic countries, however, have made numerous reservations or claimed the primacy of Islamic law, for example the Kingdom of Saudi Arabia literally: “In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention. " Even if the admissibility of such general reservations is highly controversial, this clearly shows the unwillingness of many Muslim states to grant women rights that go beyond Islamic law.
Since the 1980s, alongside the already existing secular feminist movement, an Islamic women's rights movement has developed in various Islamic countries that tries to argue for equality between men and women in Islam by reinterpreting religious sources. Another strategy of argument goes back to a “golden age” in Islam and wants to present misogynist interpretations and practices as un-Islamic.
The main topics of Islamic feminists relate to the law (legal issues such as the equality of the spouse, forced marriage, child marriage, divorce or violation, the male guardianship of a woman and custody), as well as clothing regulations for women (headscarf hijab or face veil niqab ), to questions about the sexuality of women and especially sexual obedience, violence against women (right to punishment) as well as the involvement of women in religious professions and in the mosque (woman as prayer leader, etc.).
Like secular feminism, Islamic feminism sometimes meets with approval in the Islamic world, but also often with rejection. Muslim traditionalists and Islamic fundamentalists (political Islam) in particular reject the reinterpretation of religious sources. Allegations such as westernization and heresy may be cited against Islamic feminists.
Affected human rights
Organizations for the Rights of Muslim Women
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