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(Title of the Thesis)* FORCED MARRIAGE IN THE BRITISH SUNNĪ MUSLIM COMMUNITY FROM AN ISLAMIC LAW PERSPECTIVE: A CRITICAL STUDY Taher Adheidah Submitted in accordance with the requirements for the degree of Doctor of Philosophy School of Languages, Cultures and Societies University of Leeds March, 2015 Declaration The candidate confirms that the work submitted is his own and that appropriate credit has been given where reference has been made to the work of others. “This copy has been supplied on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement”. ii Acknowledgements First of all, praise and gratitude be to Allah the Lord of the worlds, without his decree and success this work could not have been accomplished. I owe special thanks to the following people who have supported me throughout my preparation to present this work: Most importantly thanks are due to my supervisor Dr Mustapha Sheikh, who guided me with consistent patience and encouragement, and also to Dr. Husain Abdu-Rauf for his help and support during the first year of my PhD. I would also like to take this opportunity to express my deepest gratitude and thanks to my wife who shared all the problems I faced during my work with infinite patience and understanding. Without her, this work would never have been possible. My deepest appreciation goes to all my friends and family for their love, patience and moral support during the period of my research, especially Dr. Sheikh Abdullah al-Judai from whoseI benefited from his knowledge and support throughout out my research. iii Abstract Forced marriage affects a number of communities within the UK, including British Muslims. In some cases, Islam is used to justify this practice and the media has highlighted cases where young Muslims have been coerced into marriage. This thesis attempts to address this issue from a normative perspective, using Islamic legal sources to assess whether Islamic law (sharīca) allows forced marriage and will determine what can be done about it from within this context. It provides a much needed comparative and contrastive account of key discussions and debates of Muslim jurists (fuqahā’) from the four Sunni schools of law regarding elements of the marriage contract which are pertinent to this discussion, specifically: wilāya (guardianship), ikrāh (coercion) and maqāṣid al- sharīca (the aims and objectives of Islamic law). The Introduction sets out the main themes and structure of the thesis determining the motivation for the research, the research problems, its rationale, its significance and contribution to academic literature, the research questions, the methodology and the overall structure of the thesis. The issue will be approached from three perspectives: the nature of Marriage in Islamic jurisprudence, the role of guardianship in concluding marriage contract, and the ruling of marriages contracted under the effect of coercion. Chapter 2 defines forced marriage whilst looking at the distinction between it and arranged marriage, contextualising the issue in terms of UK and human rights law. It also introduces the problem of forced marriage within the Muslim community, and asks whether or not it is sanctioned by Islamic law. Chapter 3 looks in depth at the meaning and significance of marriage in Islam, and some elements of marriage; khiṭba (engagement/betrothal), the maqāṣid (legal objectives), the arkān (cornerstones), the ṣīgha (marriage formula), the shuhūd (witnesses), kafā’a (suitability or social equity of the spouses) and the mahr/ṣadaq (dowry). Wilāya (guardianship) ahliyya (legal capacity), and wilāyat al-ijbār (compelling guardianship) will be discussed in detail in Chapter 4. Chapter 5 focuses on the pivotal issues of ikrāh (coercion) and riḍā (consent). The Conclusion will gather together all the pertinent information and arrive at a definitive judgement with regard to forced marriage in Islamic law: forced marriage is not compatible with the objectives of the Sharīcah and has no reliable basis in its sources; the function of the walī (guardian) is to protect the interests of the ward and not to exercise his authority over her; the woman with legal capacity has the right to choose her spouse; the marriage contract conducted under coercion is invalid. This chapter will also include suggestions for further research and recommendations for addressing the issue of forced marriage. iv Table of Contents Declaration .......................................................................................................................................... ii Abstract .............................................................................................................................................. iv Acknowledgements ............................................................................................................................ iii Table of Contents .................................................................................................................................v List of Abbreviations and Arabic Transliteration System ................................................................ viii Chapter 1 Introduction ......................................................................................................................1 1.1 Introduction ................................................................................................................................1 1.2 Interest and Motivation behind the Research .............................................................................1 1.3 Problem of the Research ............................................................................................................2 1.4 Rationale of the Research ..........................................................................................................3 1.5 Aims and Significance of the Research .....................................................................................3 1.6 Research Questions ....................................................................................................................4 1.7 Methodology ..............................................................................................................................4 1.8 Structure of the Thesis ...............................................................................................................5 Chapter 2 Literature Review ............................................................................................................8 2.1 Background ................................................................................................................................8 2.2 The problematic of Forced Marriage .........................................................................................8 2.3 Defining Forced Marriage ..........................................................................................................9 2.4 Drawing a line between Forced Marriage and Arranged Marriage .........................................11 2.5 The Issue of Consent and Duress .............................................................................................13 2.6 Forced Marriage as a Human Rights issue ...............................................................................15 2.7 The ‘Forced Marriage Civil Protection’ Act 2007 and its impacts ..........................................19 2.8 Recent Legislation on Forced Marriage ...................................................................................21 2.9 Forced Marriage as a problem among Muslim communities in the United Kingdom ......24 2.10 Perspectives on Forced Marriage ...........................................................................................25 2.11 Statistics on Forced marriage in United Kingdom .................................................................27 2.12 Muslim Responses to Forced Marriage .................................................................................31 2.12.1 Judicial separation because of dissension and harm .......................................................35 2.12.2 The proposal to solve the problem of forced marriage presented by the Muslim Arbitration Tribunal ...................................................................................................................36 2.12.2.1 The Decision of the Judges in the Muslim Arbitration Tribunal .............................39 2.12.2.2 Critique of the Outcome of the Report the Muslim Arbitration Tribunal ................40 Chapter 3 Marriage in Islam ..........................................................................................................47 3.1 Introduction ..............................................................................................................................47 3.2 Islam as a Regulator of Sexual Relationship ...........................................................................48 3.3 The Purpose of Marriage .........................................................................................................50 3.4 The Sharīcah’s Rules of Marriage ............................................................................................53 3.5 Engagement (Khiṭbah) .............................................................................................................53 3.6 The Marriage contract ..............................................................................................................57 3.7 Legal Objectives
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