CEDAW and Muslim Family Laws: in Search of Common Ground

The Musawah research project on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) examined States parties’ justiﬁcations for their failure to implement CEDAW with regard to family laws and practices that discriminate against Muslim women. The research reviewed documents for 44 Muslim majority and minority countries that reported to the CEDAW Committee from 2005-2010.

This report documents the trends identiﬁed in the review, and presents Musawah’s responses to these justiﬁcations based on its holistic Framework for Action. It includes recommendations to the CEDAW Committee for a deeper engagement and more meaningful dialogue on the connections between Muslim family laws and practices and international human rights standards.

Musawah is a global movement of women and men who believe that equality and justice in the Muslim family are necessary and possible. In the 21st century there cannot be justice without equality; the time for equality and justice is now!

Equality in the family is the foundation for equality in society. Families in all their multiple forms are central to our lives, and should be a safe and happy space, equally empowering for all.

Musawah builds on centuries of eﬀort to promote and protect equality and justice in the family and in society.

Musawah is led by Muslim women who seek to publicly reclaim Islam’s spirit of justice for all. CEDAW and

Musawah acts together with individuals and groups to grow the movement, build knowledge and advocate for change on multiple levels. MUSLIM FAMILY LAWS

Musawah uses a holistic framework that integrates Islamic teachings, universal human rights, national constitutional guarantees of equality, and the lived realities In Search of Common Ground of women and men.

Musawah was launched in February 2009 at a Global Meeting in Kuala Lumpur, Malaysia, attended by over 250 women and men from 47 countries of Africa, Asia, Europe, the Middle East, North America and the Paciﬁc. For details see www.musawah.org

c/o: Sisters in Islam (SIS Forum Malaysia) 7, Jalan 6/10, 46000 Petaling Jaya, Selangor, MALAYSIA Tel : +603 7785 6121 Fax : +603 7785 8737 E-mail : [email protected] Website : www.musawah.org CEDAW and Muslim Family Laws: In Search of Common Ground

CEDAW and Muslim Family Laws ii Musawah for Equality in the Family CEDAW and Muslim Family Laws: In Search of Common Ground iii

CEDAW and Muslim Family Laws In Search of Common Ground iv Musawah for Equality in the Family

Published in Malaysia by: Musawah an initiative of Sisters in Islam (SIS Forum Malaysia) 7 Jalan 6/10, 46000 Petaling Jaya, Selangor, Malaysia Tel: +603 7785 6121 Fax: +603 7785 8737 Email: [email protected] Web: http://www.musawah.org

Project Leader: Zainah Anwar

Advisory Team: Amira Sonbol, Ziba Mir-Hosseini, Cassandra Balchin, Shanthi Dairiam

Writing Team: Jana Rumminger, Janine Moussa, Zainah Anwar

Research Team: Janine Moussa (chief researcher), supported by Yasmin Masidi, Sujatha Rangaswami, Jessica D’Cruz, Magdalena Piskunowicz and Esra Esenlik.

Thanks also to Vijay Nagaraj for his support to the Geneva-based researchers.

Editing Team: Janine Moussa, Jana Rumminger, Zainah Anwar, Cassandra Balchin and other members of the advisory team.

Cover Design: Gerakbudaya Enterprise

Layout: Gerakbudaya Enterprise

Printer: Vinlin Press Sdn Bhd 2, Jalan Meranti Permai 1, Meranti Permai Industrial Park, Batu 15, Jalan Puchong, 47100 Puchong, Selangor, Malaysia.

Any part of this publication may be copied, reproduced, adapted, stored n a retrieval system or transmitted in any form or by any means to meet local needs, without permission from Musawah, provided that there is no intention of gaining material profits and that all copies, reproductions, adaptation and translation through mechanical, electrical or electronic means acknowledge Musawah and the authors as the sources. A copy of any reproduction, adaptation or translation should be sent to Musawah at the above address. CEDAW and Muslim Family Laws: In Search of Common Ground

Contents

1. Introduction 1 1.1 About Musawah 1 1.2 the Musawah CEDAW Project 2

2. Approaches to CEDAW and Muslim family laws and practices 5 2.1 Methodology 5 2.2 CEDAW Committee approaches 6 2.2.1 Statements on reservations to the Convention 6 2.2.2 Legal systems and conflicts of laws 7 2.2.3 Specific issues related to marriage and family matters 7 2.2.4 Suggestions and recommendations to States parties 9 2.3 State party approaches and justifications for non-compliance 11 2.3.1 Complying or in the process of complying 11 2.3.2 Shari‘ah is the principal source of law defining rights, duties, and responsibilities of men and women 12 2.3.3 Cannot implement if inconsistent or in conflict with Islam/Shari‘ah 12 2.3.4 Islam provides sufficient or superior justice for women or complementarity of rights and duties between men and women 13 2.3.5 Culture, customs, or traditions prevent full implementation 14 2.3.6 Respect for minority rights prevents full implementation 15 2.3.7 Other obstacles to implementation 16 2.3.8 Constructive engagement 16 2.4 nGO approaches and strategies 18

3. Applying the Musawah Framework in the context of CEDAW 21 3.1 General application of the Musawah Framework 22 3.2 Responses to common State party justifications for non-implementation of CEDAW 24 3.2.1 Shari‘ah is the principal source of law defining rights, duties, and responsibilities of men and women 24 3.2.2 Cannot implement if inconsistent or in conflict with Islam/Shari‘ah 25 3.2.3 Islam provides superior or sufficient justice for women or complementarity of rights and duties between men and women 26 3.2.4 Culture, customs, or traditions, including minority rights, prevent full implementation 28 3.3 Responses to specific issues 29 3.3.1 Child marriage 30 3.3.2 Freedom to choose if, when, and whom to marry 32 3.3.3 Polygamy 33 3.3.4 Financial issues and obedience 36 3.3.5 Inheritance 38 vi Musawah for Equality in the Family

4. Conclusion and Recommendations 41

ANNEXES 43 Annex 1: Glossary of Key Terms 43 Annex 2: Table of Rights-based Laws in the Muslim World 45 Annex 3: OIC Countries and the CEDAW Convention 49 Annex 4: Selected Readings on Law and Feminism in Muslim Contexts 65

Notes 67 CEDAW and Muslim Family Laws: In Search of Common Ground

1. Introduction

This report is based on a Musawah research Musawah uses a holistic framework that project on the Convention on the Elimination integrates Islamic teachings, universal of All Forms of Discrimination against human rights, national constitutional Women (‘CEDAW’ or ‘the Convention’) guarantees of equality, and lived realities that examined States parties’ justifications of women and men. What makes Musawah for their failure to implement CEDAW with different is that it brings Islamic and human regard to family laws and practices that rights frameworks together and argues for discriminate against Muslim women. The equality within the Islamic legal tradition. As research project reviewed documents for 44 such, Musawah recognises the compatibility countries with Muslim majority or significant between concepts of equality and justice Muslim minority populations that reported in Islam and in international human to the Committee on the Elimination of rights standards, including the CEDAW Discrimination against Women (‘CEDAW Convention. Musawah also recognises the Committee’ or ‘the Committee’) from critical importance of such human rights 2005 to 2010. This report documents the standards, which guarantee all women a trends identified in this review, along with voice in defining their culture. Although responses from Musawah based on its holistic women in most cultures and other religions Framework for Action and recommendations also suffer discrimination, it is troubling the to the CEDAW Committee for a deeper extent to which women’s roles within the engagement and more meaningful dialogue Muslim family have become politicised, with on the connections between Muslim family women and family laws becoming symbols of laws and practices and international human cultural authenticity and carriers of religious rights law.1 tradition. Because Muslim family laws are regarded by many Muslims to be derived 1.1 About Musawah directly from the teachings of the religion, this makes reform particularly difficult. Musawah is a global movement of women and Those determined to preserve the status men who believe that equality and justice in quo conflate human understanding of God’s the Muslim family are necessary and possible. message with the divine word itself, thus Musawah, which means ‘Equality’ in Arabic, interpreting women’s demands for reform builds on centuries of effort to promote and towards equality and justice as demands to protect equality and justice in the family and change the divine message. in society. Musawah is led by Muslim women, Musawah intends to bring the following who seek publicly to reclaim Islam’s spirit of to the larger women’s and human rights justice for all. Musawah acts together with movement: individuals and groups to grow the movement, build knowledge and advocate for change on • An assertion that Islam can be a source multiple levels. Its launch at a Global Meeting of empowerment, not a source of oppression and discrimination; in Kuala Lumpur, Malaysia, in February 2009 brought together over 250 participants • An effort to open new horizons for — women and men, activists, scholars, rethinking the relationship between and policy makers — from 47 countries, human rights, equality and justice, and Islam; including 32 countries that are members of the Organisation of the Islamic Conference • An offer to open a new constructive (OIC). For details, visit the Musawah website dialogue where religion is no longer an at: http://www.musawah.org. obstacle to equality for women, but a source for liberation; Musawah for Equality in the Family

• A collective strength of conviction and cannot be changed because they are divine courage to stop governments, patriarchal or based on the Qur’an. authorities, and ideological non-state Musawah submits that full implementation actors from the convenience of using of CEDAW is possible, as the principles of religion and the word of God to silence equality, fairness, and justice within CEDAW our demands for equality, and and Islam are fully compatible, and reform • A space where activists, scholars, and of laws and practices for the benefit of decision makers, those working within the society and the public interest (maslahah) human rights or the Islamic framework has always been part of the Muslim legal or both, can interact and mutually tradition. strengthen our common pursuit of The CEDAW research project looks at the equality and justice for Muslim women. approaches of the CEDAW Committee, Musawah focuses both on family laws and States parties, and NGOs in addressing family practices. Musawah categorises family laws in Muslim contexts. There were Muslim family laws as inclusive of the three main goals of the project: following: (1) all family codes in countries 1. To better understand States parties’ where the majority is Muslim, whether the justifications for their inability to promote code is derived from Islam or not (e.g., all equal rights, implement existing rights- OIC-countries, including Turkey and the based family laws, and/or reform family Central Asian Republics even though their laws that discriminate against Muslim family laws are explicitly secular); (2) all women, and the CEDAW Committee’s family codes that are specific to Muslims, responses to such justifications; even where the Muslim community is a minority (e.g., Singapore, Sri Lanka); and 2. To demystify religious-based objections (3) all uncodified or part-codified minority/ and constructs based on Islamic majority Muslim family laws where the teachings, human rights, constitutional constitution explicitly permits Muslims or guarantees of equality, and social realities religious minorities to govern themselves in a dynamic and evolving process; and through separate personal status laws 3. To offer a vision and an understanding (e.g., India, Kenya, Nigeria, South Africa). of the Islamic legal tradition in a In addition, many Muslim communities, holistic framework that can enable the including in Muslim-minority settings, follow CEDAW Committee, States parties to a variety of practices relating to family the Convention, and NGOs to explore rights, responsibilities, and obligations. alternative approaches to the direct and indirect use of Islam and Shari‘ah to 1.2 The Musawah CEDAW justify reservations and non-compliance with the Convention with regard to family Project laws in Muslim contexts. The Musawah CEDAW project is the first activity conducted under the Musawah key This report outlines the results of the area of work in international advocacy. It research and Musawah’s responses to these was chosen because of the priority that the results. Chapter 2 explains the findings from Musawah International Advisory Group and the research in terms of approaches taken Musawah Advocates all over the Muslim to addressing family laws and practices world and in minority Muslim contexts place by the CEDAW Committee itself, States on the CEDAW Convention and its processes parties, and NGOs. Chapter 3 summarises to advance the rights of women. However, how the Musawah Framework for Action Musawah Advocates are troubled by the fact that many States parties to the CEDAW can be applied to respond to State party Convention assert that they cannot fully justifications for non-compliance and open implement CEDAW because it is in conflict possibilities for more just and equal Muslim with Shari‘ah, or that laws or practices family laws and practices. An understanding CEDAW and Muslim Family Laws: In Search of Common Ground

of such possibilities can assist in the report closes with recommendations to the constructive dialogues between the CEDAW CEDAW Committee for engaging with States Committee, reporting States parties, and parties during the CEDAW review process on NGOs and their explorations of the links issues related to family laws and practices in between Islam and human rights law. The Muslim contexts. Musawah for Equality in the Family CEDAW and Muslim Family Laws: In Search of Common Ground

2. Approaches to CEDAW and Muslim family laws and practices 2.1 Methodology Of the fifty-seven OIC member countries, responses to this list; the summary records all but Iran, Sudan and Somalia have of the constructive dialogue between the ratified the CEDAW Convention. Twenty-nine CEDAW Committee and the State party; the ratified without reservations, mostly African Committee’s Concluding Observations; non- and Central Asian countries. Yemen and governmental (NGO) shadow/alternative Indonesia are the only two countries outside reports; and NGO oral statements. The of Africa and Central Asia that ratified researchers also read a number of articles without reservations. Turkey removed all its and reports related to CEDAW and Islam4 to reservations later. Mauritania and Niger are familiarise themselves with ideas and issues the only two sub-Saharan African countries identified by other researchers in this area. which ratified with reservations. For each of the forty OIC and four non- This research reviewed all OIC member OIC countries reviewed, the researchers countries that reported to the CEDAW identified and excerpted language relating Committee between the years 2005 and to marriage and family relations in 2010, namely: Algeria; Azerbaijan; Bahrain; Muslim contexts. This language was then Benin; Burkina Faso; Cameroon; Chad; categorised into topics for the CEDAW Egypt; Gabon; Gambia; Guinea; Guinea Committee, States parties, and NGOs based Bissau; Guyana; Jordan; Kazakhstan; on the principal arguments and terminology Lebanon; Libya; Indonesia; Malaysia; used. Because of the mechanics of the Mali; Maldives; Mauritania; Morocco; CEDAW review process, in which the CEDAW Mozambique; Niger; Nigeria; Pakistan; Committee and States parties issue official Saudi Arabia; Sierra Leone; Suriname; documents and also hold a constructive Syria; Tajikistan; Togo; Tunisia; Turkey; dialogue during which individual CEDAW Turkmenistan; Uganda; United Arab experts and State party delegates speak, in Emirates; Uzbekistan; and Yemen. Some some cases the language highlighted was of these countries reported twice during that of the State party or the Committee as this five-year period.2 India, the Philippines, a whole, and in some cases it was language Singapore, and Thailand — four non-OIC used by an individual expert or delegate. countries with significant Muslim minority The researchers then identified and analysed communities who are governed by Muslim trends in the approaches, language, family laws — were also selected for arguments, and justifications used by each analysis.3 The study was limited to these of the three entities. countries and the five-year period because The main issues examined within these of resource limitations and because most documents included, but were not limited OIC countries that are States parties to the to: dower (sometimes used interchangeably CEDAW Convention, along with these select with dowry);5 child marriage, forced countries with significant Muslim populations, marriage, and choice of marriage; divorce; had reported during this period. For each property rights within marriage and its country included in the study, the main dissolution; inheritance; violence against documents related to the CEDAW process women within the family (e.g., marital were reviewed for approaches, language, rape); obedience; guardianship; custody; arguments, and justifications used by the levirate (practice of requiring a man to three main entities involved in the reporting marry his brother’s widow); and the ability process (i.e., the CEDAW Committee, to pass nationality to foreign spouses States parties, and NGOs). The documents and/or children. These topics are derived reviewed are the State party’s initial and/or from the rights and obligations related to periodic report; the CEDAW Committee’s list marriage and family relations contained of issues and questions and the State party’s in the CEDAW Convention6 and its related Musawah for Equality in the Family

documents, namely article 16 of the CEDAW the Convention based on religion, culture, Convention and its corresponding General tradition, or custom, as well as specific Recommendation number 21 on equality topics like polygamy, child marriage, and family relations (1994).7 While the inheritance, etc. The documents show rights and obligations related to family laws that the Committee generally addresses and practices under the CEDAW Convention three categories or topics, namely are primarily articulated in this article reservations, general legal systems, and and general recommendation, Musawah various specific issues related to family law. recognises that the holistic nature of the These interventions are described below. CEDAW Convention means that other articles Several trends also emerged in terms of (e.g., article 1 (discrimination); article 2 recommendations or suggestions made by (state obligation); article 5 (customs and the Committee in its constructive dialogues stereotypes); article 9 (nationality); article or Concluding Observations for how States 15 (equality before the law), as well as parties should approach situations of non- general recommendations and statements compliance with the Convention, which are by the CEDAW Committee (e.g., the 1998 also described below. statement on reservations8), also relate to family laws and practices. 2.2.1 Statements on The following three sections present the reservations to the findings from this review and analysis. Convention Section 2.2 shares trends in how the CEDAW The CEDAW Committee has written and Committee has approached the issue of commented extensively on reservations to family laws and practices in relation to Islam the Convention in both its 1998 statement and Muslim laws both in its official documents on reservations,9 as well as in numerous (general recommendations, statements on references in its Concluding Observations. various issues, lists of issues and questions, In its 1998 statement on reservations, the and concluding observations) and by Committee noted that reservations affect individual CEDAW experts in constructive the efficacy of the Convention, limit the dialogues. Section 2.3, which comprises application of human rights norms at the the bulk of the output and analysis from national level, and ‘ensure that women’s the research project, outlines justifications inequality with men will be entrenched and arguments used by States parties as at the national level’.10 The statement to their implementation of or failure to continues: ‘Neither traditional, religious or implement CEDAW with regard to Muslim cultural practice nor incompatible domestic family laws and practices. This covers State laws and policies can justify violations party official documents (initial and periodic of the Convention. The Committee also reports and responses to the CEDAW remains convinced that reservations to Committee lists of issues and questions) as article 16, whether lodged for national, well as statements by State party delegates traditional, religious or cultural reasons, during constructive dialogues. Section 2.4 are incompatible with the Convention and describes general approaches used by NGOs therefore impermissible and should be in their alternative/shadow reports and oral reviewed and modified or withdrawn.’11 statements in highlighting the situation of Muslim women in their country with regard The Committee’s stand is based, inter alia, to family laws and practices. on the Vienna Convention on the Law of Treaties, which clearly sets out that a treaty ‘is binding upon the parties to it and must 2.2 CEDAW Committee be performed by them in good faith’,12 and approaches that a State may not make any reservation that ‘is incompatible with the object and The review of documents provided insight purpose of the treaty’.13 into how the CEDAW Committee approaches issues related to Muslim family laws and Hence when reviewing countries with practices, including general reservations reservations to the CEDAW Convention, to or justifications for non-compliance with the Committee has consistently urged CEDAW and Muslim Family Laws: In Search of Common Ground

governments to withdraw their reservations, enjoyment of the rights enshrined in the particularly with respect to reservations Convention’, and requested analysis on the to article 16. For example, in the case scope and impact of the reservations.30 of the United Arab Emirates (UAE), the Committee ‘call[ed] upon the State party 2.2.2 Legal systems and to withdraw its reservation to article 16 of conflicts of laws the Convention and to introduce legislative reforms to provide women with equal rights In its review of several States parties, the in marriage, divorce, property relations, CEDAW Committee noted with concern the custody of children and inheritance’.14 discrepancies between Shari‘ah law and Furthermore, the Committee has emphasised the CEDAW Convention. The Committee that these reservations should be lifted in a asked how the legal system addressed any 31 speedy manner (e.g., Jordan,15 Syria16). In inconsistencies (e.g., Egypt ) or which several instances, the Committee has asked system would prevail in the case of conflict of 32 33 34 governments for indicators of progress laws (e.g., Benin, Cameroon, Maldives ). towards the lifting of their reservations (e.g., For example, the delegation from the Algeria,17 Maldives,18 Mauritania19) and in the Maldives was asked to ‘clarify the precise case of Saudi Arabia, the Committee urged status of the Convention in the domestic the government to consider withdrawing its legal system and specify which provisions general reservation which stated that it was would prevail in instances of conflict under no obligation to observe any terms of between provisions of the Convention, the 35 the Convention that were deemed contrary Constitution and Islamic jurisprudence’. to Islamic law, ‘particularly in light of the The Committee has also asked what is fact that the delegation assured that there being done to reconcile and harmonise a is no contradiction in substance between the State party’s obligations under the CEDAW Convention and Islamic Sharia’.20 Convention and the requirements under Shari‘ah (e.g., Nigeria,36 Pakistan37) and has Increasingly, the CEDAW Committee has recommended that governments bring all been noting in its Concluding Observations of their laws into full compliance with the that reservations to article 16 go against CEDAW Convention. the very object and purpose of the Convention (e.g., Algeria,21 Bahrain,22 On a few occasions, the Committee has Libya,23 Maldives,24 Mauritania,25 UAE26). For expressed concern about the existence 38 example, in its Concluding Observations to of plural legal systems (e.g., Singapore, 39 the Maldives, the Committee ‘call[ed] upon Malaysia ). In the case of Malaysia, the the State party to make the necessary Committee noted that ‘the dual legal system revisions to law in the area of marriage and of civil law and multiple versions of Syariah family relations without delay in order to law, […] results in continuing discrimination facilitate the withdrawal of the reservation against women, particularly in the field 40 to article 16, which is contrary to the object of marriage and family relations’. These and purpose of the Convention’.27 questions have especially been asked in relation to which legal system governs The Committee has commented on Muslim and ‘non-Muslim’ marriages (e.g., reservations made ostensibly on the basis Egypt,41 Malaysia,42 Syria43). The Committee of protecting the rights of Muslim minorities, has recommended that State parties noting its concern about such reservations ‘consider issuing a unified family law on and recommending withdrawal (e.g., personal status covering both Muslims and 28 29 India, Singapore ). For example, the Christians’ (Egypt44). Committee reiterated to Singapore ‘that it considers reservations to articles 2 and 16 2.2.3 Specific issues related to be contrary to the object and purpose of to marriage and family the Convention’. It ‘encourage[d] the State party to engage in a multi-stakeholder matters consultation, with women fully represented The CEDAW Committee regularly makes in each group, on the extent and scope of its inquiries and recommendations on issues reservations and their impact on all women’s related to marriage and family matters in Musawah for Equality in the Family

Muslim contexts, urging States parties to number 21. The Committee has also end discrimination against women, in law recommended that States parties adopt and practice. Very often these issues are measures aimed at bringing religious addressed together in one question from and traditional marriages in line with the the Committee in either the list of issues Convention (e.g., Kazakhstan69). and questions or during the constructive • Child Marriage: The Committee has dialogue. In a typical question, for example, raised a large number of questions, the Committee may ask a State party to concerns, and recommendations on ‘provide information on steps taken to the issue of child marriage (e.g., ensure equality between women and men Azerbaijan,70 Bahrain,71 Benin,72 Burkina in respect to personal status with respect Faso,73 Cameroon,74 Gabon,75 Guinea,76 to marriage, divorce, child guardianship, 77 78 79 45 Guinea Bissau, Indonesia, Jordan, custody, as well as inheritance’ (UAE ). Kazakhstan,80 Malaysia,81 Nigeria,82 Similarly, these various issues are often Pakistan,83 Saudi Arabia,84 Turkmenistan,85 addressed together in one paragraph of Yemen86). The Committee increasingly the Concluding Observations, such as in asks governments for concrete timetables the case of Yemen, in which the Committee and actions taken to eliminate the called upon the State party ‘to ensure equal practice (e.g., Bahrain,87 Indonesia,88 rights between women and men with regard Nigeria89). In a few cases, Committee to personal status, especially in marriage, members have pointed out the divorce, testimony, property, nationality, detrimental effect child marriage has on 46 child custody and inheritance’. The girls, e.g., ‘marriage at such a young Committee has also addressed these various age would mean the end of schooling for issues separately, as noted below: a girl and would rob her of the chance • Polygamy: The Committee regularly to improve the conditions of her life in expresses its concern over the persistence the future’ (Togo90). State parties are of polygamy (e.g., Azerbaijan,47 Burkina regularly urged to set a minimum age for Faso,48 Gambia,49 Guinea Bissau,50 Indonesia,51 marriage of 18 years for both women and Kazakhstan,52 Libya,53 Maldives,54 Mali,55 men in accordance with article 16 of the Morocco,56 Sierra Leone,57 Tajikistan,58 Convention, General Recommendation Togo,59 Turkmenistan,60 Uzbekistan,61 number 21, and the Convention on the 91 Yemen62). The Committee has recalled its Rights of the Child (e.g., Azerbaijan, 92 93 94 General Recommendation number 21 on Jordan, Nigeria, Pakistan, Saudi 95 96 97 equality and family relations, which states Arabia, Turkmenistan, Yemen ). that polygamous marriage contravenes a • Inheritance: The Committee and woman’s right to equality with men (e.g., individual Committee experts have noted Maldives,63 Yemen64), and has asserted with concern discriminatory inheritance that polygamy is inherently discriminatory laws in a number of countries (e.g., against women and brings with it many Burkina Faso,98 Cameroon,99 Guinea problems, including the distribution of Bissau,100 Syria101) and have called these property and the custody of children, both laws ‘inherently discriminatory against 65 during and after marriage (Burkina Faso ). women’ (Syria102). The Committee has It regularly asks governments in both the urged governments to bring these laws lists of issues and questions and during in line with the Convention and General the constructive dialogues what action Recommendation number 21. It has also is being taken to abolish the practice. A raised questions about discriminatory number of questions have been directed at property rights within marriage and its the incidence of unregistered religious and dissolution, and has urged governments 66 traditional marriages (e.g., Kazakhstan, to take action to eliminate such 67 68 Tajikistan, Uzbekistan ). In Concluding discrimination (e.g., Bahrain,103 Burkina Observations, the Committee regularly Faso,104 Guyana,105 Lebanon106). urges governments to abolish, penalise, and prohibit the practice of polygamy • Other issues: The Committee has also in line with General Recommendation raised a number of other issues related CEDAW and Muslim Family Laws: In Search of Common Ground

to marriage and family relations, though (Syria132). Sometimes, though less with less frequency. These include frequently, these recommendations are questions and recommendations related mentioned in the context of article 16 to nationality issues (e.g., Lebanon,107 of the Convention. In the case of Togo, Suriname,108 Yemen109); marital rape for example, the Committee urged (e.g., Malaysia110); obedience (e.g., ‘the State party to address practices Gabon,111 Turkmenistan112); guardianship such as forced and early marriages, (e.g., Libya,113 Saudi Arabia114); the discriminatory widowhood practices, practice of levirate (e.g., Burkina levirate, bondage and female genital Faso,115 Cameroon,116 Togo117); and the mutilation, which constitute violations of number and spacing of children (e.g., the Convention’.133 Turkmenistan118). • Engage religious/traditional leaders: 2.2.4 Suggestions and On several occasions, the Committee has urged governments to engage with recommendations to religious leaders in pursuing efforts States parties towards equality in the family (e.g., 134 135 The review of documents revealed that in both Azerbaijan, Burkina Faso, Guinea 136 137 138 139 Concluding Observations and constructive Bissau, Indonesia, Nigeria, Togo, 140 141 dialogues, the CEDAW Committee and Uzbekistan, Yemen ). A typical individual CEDAW experts have adopted question would be to ‘[p]lease inform a number of positive suggestions and the Committee of the specific measures recommendations for addressing issues being taken to raise awareness of related to discriminatory family laws and opinion leaders, religious and traditional practices, including: chiefs … with regard to marriage, divorce, child custody, and inheritance • Modify sociocultural religious and rights between spouses during customs/traditions: The Committee marriage’ (Burkina Faso142). A standard has frequently urged governments recommendation, like the one issued to to modify sociocultural and religious, Azerbaijan, is ‘to implement awareness customary, and traditional practices raising campaigns and work with that discriminate against women (e.g., religious authorities in order to prevent 119 120 121 Azerbaijan, Gabon, Gambia, early marriages and to ensure that all 122 123 124 125 Guinea, Lebanon, Mali, Mauritania, marriages are properly registered’.143 This 126 127 128 Pakistan, Sierra Leone, Syria, recommendation to engage with religious 129 130 Togo, Uzbekistan ). Most of these leaders has also been mentioned in the recommendations have been issued in context of article 5: ‘such measures [to the context of articles 2(f) and 5(a) of the eliminate stereotypes] should include Convention. A typical recommendation, awareness-raising and educational for example, ‘urges the State party to campaigns addressing women and introduce measures without delay to girls, but in particular men and boys, modify or eliminate negative harmful and community, spiritual and religious cultural practices and stereotypes that leaders, with a view to eliminating discriminate against women, in stereotypes associated with traditional conformity with articles 2(f) and 5(a) of gender roles in the family and in society, 131 the Convention’ (Gambia ) and states in accordance with articles 2(f) and 5(a) that measures to eliminate discrimination of the Convention’ (Uzbekistan144). against women ‘should include awareness- raising and educational campaigns • Examine comparative Muslim juris- addressing women and men, girls and prudence: The Committee has urged boys, of all religious affiliations with a governments to look at positive/ view to eliminating stereotypes associated progressive examples from other Muslim with traditional gender roles in the countries in the area of family law family and in society, in accordance with and has pointed out that other Muslim articles 2(f) and 5(a) of the Convention’ countries have lifted their reservations, 10 Musawah for Equality in the Family

including to articles 2, 5, and 16 of the stated directly or indirectly that various CEDAW Convention (e.g., Jordan,145 interpretations exist and there is no one Lebanon,146 Singapore,147 UAE148). In monolithic interpretation (e.g., Egypt,170 its Concluding observations to the UAE, Mali,171 Mauritania,172 Pakistan173). for example, the Committee urged the • Balance minority rights with government to take into consideration women’s rights: The CEDAW Committee ‘the experiences of countries with similar recommended ensuring a balance religious backgrounds and legal systems between minority rights and women’s that have successfully accommodated rights for the non-OIC countries reviewed domestic legislation to commitments in the Musawah study. During the India emanating from international legally binding instruments, with a view to its constructive dialogue, for example, withdrawal of the reservation’.149 The several CEDAW experts challenged the Committee has also suggested on a Indian delegation on the policy of non- number of occasions that governments interference in the personal laws of model their personal status/family laws communities and the balance between on those of other Muslim countries, such freedom of religion and women’s rights 174 as Algeria, Tunisia, and Morocco (e.g., to equality. One CEDAW expert stated Maldives,150 UAE,151 Singapore152), obtain that ‘[d]espite what the Constitution information on comparative jurisprudence said, there was a discrepancy between (e.g., Jordan,153 Indonesia,154 Maldives155) the right to freedom of religion, on the where more progressive interpretations one hand, and the right of women to of Islamic law have been codified in enjoy the same human rights as men, on legislative reforms (Jordan,156 Malaysia157), the other. She urged the Government to and/or seek to interpret Islamic law in find ways of engaging in discussion and harmony with international human rights dialogue to promote women’s rights.’175 standards (e.g., Maldives158) in order to Both the Indian and Singapore Concluding give women equal rights in marriage, observations contained powerful language divorce, and custody of children. on the minority Muslim communities. For India, the Committee noted its concern • Explore different interpretations about the policy of non-interference, of the Qur’an/Shari‘ah: Committee which ‘stand[s] in contradiction not members have, on occasion, underscored only to the overall spirit and aim of the that several different interpretations Convention but also to the State party’s and schools of interpretation related to existing constitutional guarantees of Islam/Shari‘ah exist (e.g., Cameroon,159 equality and non-discrimination’ and Egypt,160 Gambia,161 Mali,162 Maldives,163 urged the State party ‘to proactively Pakistan,164 UAE165). Members have also, on occasion, directly engaged initiate and encourage debate within the State party delegates, correcting them relevant communities on gender equality on interpretations related to Muslim and the human rights of women and, in laws. To the Government of Pakistan, particular, work with and support women’s for example, a Committee member groups as members of these communities pointed out that ‘Islamic law did not so as to … review and reform personal prohibit joint custody agreements’.166 laws of different ethnic and religious In the constructive dialogues with groups to ensure de jure gender equality Cameroon167 and Maldives,168 members and compliance with the Convention’.176 highlighted that neither the Qur’an For Singapore, the Committee stated its nor Islamic law permitted polygamy. concern ‘about the existence of the dual In the Maldives review, a Committee legal system of civil law and sharia law in member clarified that ‘the institution of regard to personal status, which results in the wali, or guardian of the bride, was continuing discrimination against Muslim not based upon the Koran and should women in the fields of marriage, divorce be abolished’.169 In some constructive and inheritance’ and urged the State party dialogues, State party delegates have to ‘undertake a process of law reform’.177 CEDAW and Muslim Family Laws: In Search of Common Ground 11

2.3 State party approaches Gabon,179 Guinea Bissau,180 Lebanon,181 and Tajikistan182 claimed full equality and justifications for under the law between men and women, non-compliance generally. A number of countries said they guaranteed equality between spouses A major focus of the research project (e.g., Azerbaijan,183 Turkey184) including was to uncover how States parties to the the right to choose a spouse (e.g., CEDAW Convention view their progress in Azerbaijan,185 Malaysia186) and rights related implementing the Convention with regard to the dissolution of the marriage (e.g., to Muslim family laws and practices, Kazakhstan187). Tajikistan claimed that other and how they justify non-compliance in marriage and family-related rights, such as such implementation. The language and inheritance, property rights, and the right arguments used by States parties were to use the family name were all protected excerpted from the relevant CEDAW under the law.188 Several countries, including documents and categorised into types of Turkey189 and Tajikistan,190 stated that arguments, which are presented in this polygamy was illegal under their criminal section. codes and in some instances subject to The arguments used by States parties, criminal sanctions and fines. either in their official documents or in A significant number of countries cited statements made by individual delegates recent, ongoing, and future reform during the constructive dialogues, range processes geared towards achieving equality from statements that they are complying between men and women in the family. with the Convention, to blanket declarations Several countries, including Nigeria191 and or reservations that implementation cannot Syria,192 referred to general reform efforts. happen where CEDAW provisions are Algeria193 and Suriname194 cited efforts inconsistent with Shari‘ah, to justifications underway to raise the marriage age to that Islam provides a different type of eighteen for both boys and girls. Mali stated equality or superior justice for women, to it was in the process of abolishing polygamy excuses that social customs, traditions, and discrimination in inheritance laws.195 cultures, respect for minority rights, or the Algeria specifically mentioned the need for political situation is to blame. However, mutual consent to marriage and the need to some States parties have made rights-based abolish guardianship for adult women when statements about addressing discrimination marriage is contracted.196 Indonesia stated against women, acknowledging that such that its Ministry for Women Empowerment discrimination does exist, citing various had proposed revisions to its laws ‘focussing interpretations of the Qur’an or Islamic on the age of marriage, polygamy, marriage teachings, and noting actions that have based on different religious beliefs, as been taken to address injustices relating well as the status and roles of husband to Muslim laws such as engaging with and wife’.197 Several countries, including religious leaders or studying progressive Guinea198 and Nigeria,199 referred to jurisprudence from other Muslim countries. generalised efforts to bring their national The following subsections describe each of laws in compliance with international human these types of argument in more detail. rights standards. With regard to polygamy, new laws had been drafted (e.g., Nigeria200) 2.3.1 Complying or in the and roundtables and workshops had been 201 202 process of complying organised (e.g., Tajikistan, Togo ). With regard to child marriage, Cameroon A number of countries claimed compliance mounted campaigns ‘to make parents aware with the CEDAW Convention generally, and of the need to send girls to school, and fulfilment of rights related to marriage and [organised] educational chats … with girls to family relations in particular. Kazakhstan encourage them to report any such cases to claimed that its Constitution reflected the the relevant services’.203 Two of the minority principles of the Universal Declaration of non-OIC Muslim countries studied, namely Human Rights,178 and countries such as the Philippines and Thailand, also stated 12 Musawah for Equality in the Family

that they were undertaking reform efforts are based on the Islamic Shariah’.206 Bahrain to amend discriminatory provisions related stated, ‘Article 2 of Bahrain’s Constitution to marriage and family relations. Thailand states, “The religion of the State is Islam. recounted its ongoing efforts to amend its The Islamic Shariah is a principal source for laws permitting women to choose their last legislation”’,207 and the United Arab Emirates name and marital designation,204 and the stated, ‘Islam is the official religion of the Philippines said that it hoped that there Federation, in which the Islamic Sharia is the would be progress in its efforts to reform its principal source of legislation’.208 The first Code of Muslim Personal Laws by the end of sentence of the Libyan State party report the current legislative term.205 reads, ‘As a Muslim society, the Libyan Arab Jamahiriya has the Holy Quran as its 2.3.2 Shari‘ah is the principal social code. As such, it is the Islamic faith source of law defining which defines relationships and establishes rights, duties, and rights, duties and the methods of interaction between individuals, both male and female, responsibilities of men in every sphere of life’.209 and women Many of the States parties explicitly or The States parties reviewed in this research implicitly view ‘Islamic law’ or ‘Shari‘ah’ project tended to define themselves in as unitary and fixed in its content. Several one of three ways: (1) Muslim countries, referred to a single ‘the Islamic Shariah’ or following the norms and customs of Islam ‘the Islamic law’ (e.g., Syria,210 Mauritania,211 and Muslim laws (often referred to as Bahrain,212 UAE213). An Egyptian delegate ‘Shari‘ah/Sharia law’); (2) countries with stated that Islamic law ‘is a settled rich cultures, customs, and traditions; and matter’.214 A Syrian delegate stated that (3) secular countries. The arguments and ‘with regard to inheritance law, even though justifications used by governments for failing some of its provisions were discriminatory, to comply with their CEDAW obligations they could not be easily abolished or even related to marriage and family relations are amended because they stemmed from the correlated to the categories in which they Islamic sharia’.215 defined themselves. For example, those countries defining themselves as ‘Muslim’ 2.3.3 Cannot implement if were more likely to claim that they are inconsistent or in conflict unable to implement CEDAW-related rights perceived to be contrary to Islam/Shari‘ah. with Islam/Shari‘ah The countries that defined themselves A number of countries entered reservations according to ‘tradition and culture’ were on the basis of Shari‘ah or religion generally, more likely to cite tradition and culture including Jordan, Lebanon, Libya, Mauritania, as impediments to full implementation. Saudi Arabia, Malaysia, and Syria. For ‘Secular’ countries were more likely to cite example, Jordan stated, ‘[n]o action has compliance with the CEDAW Convention been taken to withdraw the reservations to while more readily conceding that increased any article of Convention that contradicts efforts are needed. the Islamic sharia’.216 Malaysia stated in its The countries that defined themselves as combined initial and periodic State party ‘Muslim countries’ often made a blanket report that its remaining reservations ‘are statement, often at the beginning of the because [the CEDAW articles] are in conflict State party report, that ‘Islamic law’ or with the provisions of the Islamic Sharia’ law 217 ‘Shari‘ah’ is the principal source of law for and the Federal Constitution of Malaysia’. the national legislation and that it defines Some countries, such as Pakistan218 and rights, duties, and responsibilities of men Saudi Arabia,219 stated that no law would and women. For instance, Syria stated that stand if it were found to be inconsistent with ‘matters relating to marriage and family the Islam and/or the Qur’an. Saudi Arabia relationships, starting with betrothal and went on to say that, ‘[t]o talk about the continuing on to marriage and all matters philosophy of domestic and international law relating to birth, divorce, wills and legacies … and the application thereof in the Kingdom CEDAW and Muslim Family Laws: In Search of Common Ground 13

of Saudi Arabia in isolation from the Islamic law provided even more effective protection shariah is inconceivable’ and that ‘[a]s of women’s rights than the Convention’235 such the country’s laws cannot transgress and Egypt stated that to withdraw its article the framework of the Islamic shariah and, 16 reservations would actually ‘diminish consequently, may not be changed or the rights of women under Islamic law and developed by the legislative authority in the Egyptian law’.236 Kingdom in a manner which would lead to the Several countries justified differential creation of new principles, inconsistent with treatment of women and men under their the bases of the Islamic Shariah, in letter and interpretations of Shari‘ah by pointing to spirit’.220 Malaysia concluded after thorough the reciprocal obligations expected of men. consideration that marital rape could not be an offence ‘as that would be inconsistent with A number pointed to the responsibility sharia law’.221 Egypt222 and Syria223 stated that of a man to support his family, whereas a their inheritance laws could not be amended woman is under no such obligation (e.g., 237 238 239 240 as they were based on Shari‘ah. Egypt, Malaysia, Pakistan, UAE ). ‘[T]he sharia honours women and makes 2.3.4 Islam provides the man responsible for the financial support of the woman, whether his wife, daughter, sufficient or superior mother or sister, not requiring the wife to justice for women or support either herself or her family, even complementarity of rights if she is wealthy’, noted the UAE.241 With and duties between men regard to alimony, Egypt argued that a man and women is obligated to pay alimony for up to one year, whereas ‘[t]here is no corresponding Several countries asserted that Islam requirement for the woman’.242 A Bahraini provided for equality between men and delegate stated that even if a brother and 224 225 226 women (e.g., Bahrain, Egypt, Libya, sister divided their inheritance from their 227 228 229 Malaysia, Mauritania, Nigeria, Saudi father equally, the brother would still be 230 Arabia ). Bahrain stated that, ‘the Islamic financially responsible for supporting his Shariah, which is an integral system, sister, and it stood to reason that the person achieves true equality between women and who was obliged to provide support should men based on justice that transcends the have greater financial resources at his 231 demand for formal or numerical equality’, disposal. In awarding the man a greater and Malaysia noted that ‘Islam is the key share of the inheritance, Shari‘ah law was in 232 to women’s emancipation and liberation’. fact providing for the fair treatment of men Saudi Arabia noted that the ‘Holy Koran and and women.243 Immaculate Sunna … contain unequivocal rulings in favour of non-discrimination With regard to polygamy, Saudi Arabia between men and women, desiring that reasoned, ‘[a]s everyone knew, some men women enjoy the same rights and duties on had stronger desires than their wives could a basis of equality’.233 meet; they must be able to take additional wives so that they would not be tempted Specifically related to marriage and family to satisfy their needs outside of marriage, matters, Libya stated that Islam ‘prescribes which was prohibited under Islamic law’.244 that a woman should have an inheritance It went on to add that ‘[p]olygamy had also portion and the right to choose her provided a solution at times when many men husband, retain her name after marriage had died in wartime; it had allowed women and receive an exclusive dower. In addition, who would otherwise have been left without it accords her the right to enjoy financial husbands to have the status of wives in independence, dispose of her assets as she society and to be provided for financially’. wishes and engage in any of the legitimate activities pursued by men during the course Interestingly, few countries raised the fact of their lives’.234 A few countries even that legally, the reciprocity between husband pointed out that Islam provides superior and wife is based on a relationship founded justice and equality for women. With regard on inequality between the spouses. In return to inheritance, Pakistan noted that ‘Islamic for maintenance, the wife is duty-bound to 14 Musawah for Equality in the Family

obey her husband. She loses her right to to such arrangements due to poverty (e.g., maintenance if she fails to obey. One country Indonesia254) or to rectify ‘the demographic that did describe this situation is Gabon, imbalance that resulted from, for example, in pointing out ‘certain inconsistencies civil war’ (Tajikistan255). Indonesia cited ‘the that violate the principle of equality of the prevailing sociocultural norms of society spouses’.245 Gabon stated, ‘[b]y marrying, which encourage the belief that marriage at a woman makes a commitment to obey a later age amounts to shameful conduct and her husband (article 252 of the Civil Code), therefore should be prevented’ as the most who is empowered as the head of the family significant reason for child marriage.256 (article 253). The husband thus decides on One of the main arguments evoked by the domicile (articles 114 and 254) where governments for the inequality that exists the wife is obliged to live and where the between men and women in their country husband is obliged to provide for her, for was that change took time (e.g., Benin,257 the duration of the marriage. The wife may Lebanon,258 Mali,259 Togo260). Some blamed avoid this arrangement only through court it on ‘age-old traditions’ (Pakistan261) that 246 authorization.’ came from ‘bygone times’ (Benin262). Several countries underscored the challenges and 2.3.5 Culture, customs, or time required to change these stereotypical traditions prevent full notions of equality. Pakistan noted that implementation ‘society’s attitudes, preferences, biases and prejudices develop over centuries Another type of argument frequently used and are the product of a complex mix of by many States parties attempts to take culture, history, custom and religion’ and the responsibility for implementation of that ‘[c]hanging these is a difficult task’.263 the Convention away from the government Turkey stated that ‘mentalities would not by pointing to the role of culture, customs, change overnight’264 and Algeria also felt traditions, and the patriarchal society in that ending ‘discrimination behind people’s discriminating against women. The States behaviour and mentality was a long term parties argue that in the face of these task’.265 Several delegations assured the powerful local customs and traditions, which Committee that progress, though slow in often are intertwined with religion, change is coming, was nonetheless taking place. The difficult and takes time. In many cases, the UAE pointed out that ‘[t]he very presence people are not ready or women themselves of the delegation before the Committee are preventing the change from occurring. was something that could hardly have been Governments also cite situations in which imagined a decade or two earlier’.266 Gabon the law permits a practice, which is often also pointed out that ‘progressively, a justified because of tradition or culture, but gender perspective was being introduced in the practice is rare. the educational system and in the thinking 267 A large number of countries cited local of families’. customs and traditions, which Syria A number of countries argued that although describes as ‘more powerful than the law’, as a practice was not banned per se, it was not the reason that discrimination in the family widely exercised within the local culture. persists.247 With regard to polygamy, several With regard to child marriage, Turkmenistan countries pointed to the acceptance of this noted that ‘[a]lthough girls were permitted practice by society and women in particular to marry at sixteen, most did not do so (e.g., Burkina Faso,248 Mali,249 Pakistan,250 until they were 18’.268 Algeria stated that Tajikistan251). Burkina Faso pointed out that polygamy was legal, but ‘in fact virtually all some women entered polygamous marriages men chose to divorce their first wife before because they enjoy living in larger families,252 taking a second’.269 UAE shared that ‘what and Mali stated that the persistence of appeared to be strict interpretations of the polygamy was due in part ‘to tolerance on Shariah in theory were applied flexibly in the part of women, who were not sufficiently practice’.270 Legal practices were also limited independent to make their own choices’.253 by restrictions and preconditions set out Others pointed out that women were driven by law. Several countries, for example, CEDAW and Muslim Family Laws: In Search of Common Ground 15

pointed to preconditions for entering into regard to article 16(2) on registration of a polygamous marriage (e.g., Algeria,271 marriages that ‘it is not practical in a vast Malaysia,272 Maldives,273 Mauritania,274 country like India with its variety of customs, Morocco,275 Syria,276 Togo,277 Yemen278). religions and level of literacy’.284 Singapore’s Mauritania explained, for example, that first reservation states, ‘In the context of ‘[a] man was allowed to take another wife Singapore’s multi-racial and multi-religious provided that both the first wife and the society and the need to respect the freedom prospective second wife consented to a of minorities to practise their religious and polygamous marriage and provided that the personal laws, the Republic of Singapore husband treated both wives equally. The reserves the right not to apply the provisions difficulties inherent in fulfilling the latter of articles 2 and 16 where compliance with condition effectively served as an indirect these provisions would be contrary to their ban on polygamy.’279 Togo also noted that religious or personal laws’.285 This is an by ‘subjecting polygamous marriage to implicit reference to the Muslim minority strict conditions of express prior consent of community in Singapore. the first two spouses who have chosen the Singapore noted that the admittedly polygamous option’ it would be ‘promot[ing] discriminatory provisions relating to Muslim monogamy as the preferred form of women within the family ‘were essential marriage’.280 Syria observed that ‘Shariah in order to preserve the harmony of law required men to be financially and Singapore’s multiracial, multireligious and physically capable of managing a second multicultural society’.286 Thus no change is wife’.281 Malaysia shared the Court would only possible because ‘[t]he current view of the grant permission for a polygamous marriage Muslim community was that the application if ‘it is satisfied that the proposed marriage of Sharia law in matters of marriage, divorce is just and necessary, having regard to such and inheritance — the only areas in which circumstances as sterility, physical infirmity, [Sharia] was applied — continued to be physical unfitness for conjugal relations, relevant’.287 wilful avoidance of an order for restitution of conjugal rights or insanity on the part of the India, which has a significant Muslim minority, existing wife or wives’.282 With regard to child stated in its periodic report that ‘India is a marriage, Jordan argued that ‘the authority secular country, having diverse cultures and granted to judges under the Personal Status religions and it respects the views of all the Act to marry underage girls could be used different communities based on religion, only in extreme circumstances’.283 language and geographical locations’.288 During the constructive dialogue between the 2.3.6 Respect for minority CEDAW Committee and the Indian delegation, rights prevents full a Committee member asked about India’s implementation policy of non-interference in the personal affairs of any Community without its initiative Some States parties with Muslim minorities and consent, which she said ‘undermined justify their failure to amend discriminatory the Convention’.289 A delegate from India provisions in family laws that apply only defended the non-interference policy, stating to Muslims because they recognise and that ‘secularism and religious freedom were respect cultural and religious diversity and basic aspects of the country’s Constitution the rights of minorities to their own cultures which had been drafted in 1950 against or customs. Both India and Singapore, a backdrop of religious violence. India’s two of the non-OIC countries reviewed in unity in diversity was non-negotiable and the Musawah study, hold reservations or communities enjoyed the right to minister declarations to the Convention related to their own institutions. The Government, for its minority communities. India declared in its part, could not impose change without relation to articles 5(a) and 16(1) ‘that it evidence of a movement from within the shall abide by and ensure these provisions in community’.290 conformity with its policy of non-interference in the personal affairs of any Community The Philippines, another minority non- without its initiative and consent’, and with OIC country reviewed in the study, does 16 Musawah for Equality in the Family

not have any reservations to article 16 of reservations … was a politically charged the Convention. When questioned about issue and could happen only in the right the discriminatory provisions contained environment and with a favourable in its Muslim Personal Law, however, the Parliament’.306 A delegate from Thailand Philippines recognised that although all stated that “[t]he issue of Islamic law was norms relating to personal and family a sensitive one. The situation was unique relations should be in line with the because Islam was considered to be not Convention, ‘there was also a need for only a religion but a way of life, and the laws cultural sensitivity towards the country’s related to marriage were considered to be the large Muslim population’.291 laws of God, which could not be replaced by the laws of man.307 Several countries pointed 2.3.7 Other obstacles to to the political instability in their region/ implementation country as reasons for non-compliance (e.g., Algeria,308 Jordan,309 Lebanon,310 Mali311). In addition to specifically pointing to culture, A delegate from Algeria stated that ‘only tradition, and custom, many States parties when the underlying conflict had been dealt tried to minimise the fact that they were not with could a reservation be withdrawn’.312 fully complying with the Convention or cited With regard to granting nationality to the other obstacles to implementation. Some children of Lebanese women married to non- countries stated that Shari‘ah law only Lebanese, Lebanon noted that ‘[i]n view of 292 affected family matters (e.g., Bahrain, the critical political situation in Lebanon since 293 294 295 Gambia, Libya, Singapore ), implying the war of July 2006 and the repercussions that family matters are not very important of that war, there has been no opportunity and that women are not discriminated for the achievement of … progress’. against in other areas of their lives. Bahrain noted that its reservations concerned ‘only 2.3.8 Constructive engagement the status of women in the family with respect to guardianship, the financial rights In some cases, States parties acknowledged of women, inheritance, etc.’,296 and Libya’s discriminatory practices, stated that ‘applied only to inheritance, on which there more action is needed, provided Islamic were clear and incontrovertible provisions jurisprudence to support equality, or shared in the sharia’.297 Gambia explained that methods they are using to engage with Shari‘ah law was ‘restricted to matters Islam. Examples include: 298 like marriage, divorce, and inheritance’. • Acknowledging gap between de Singapore explained that ‘[o]nly the Muslim jure and de facto: Gambia admitted community was affected by sharia law, that ‘even though women are accorded which in fact applied only in three areas: full and equal rights with men under 299 marriage, divorce and inheritance’. the 1997 constitution; in practice Azerbaijan explained that the rights within women do experience discrimination the family could be restricted ‘only on and inequality’.314 Togo attributed this the basis of the law for the purpose of gap to the practical obstacles that exist protecting the morals, health, rights and preventing women from fully enjoying legitimate interests of other family members their rights, such as ‘practices detrimental 300 and other citizens’. Guinea explained that to a woman’s dignity in the event of her ‘customary laws were only invoked within husband’s death, the fact that women families and in certain communities where are regarded as ineligible to inherit, women were possibly discouraged from difficulty in obtaining access to credit 301 taking matters to court’. and owning property, early marriage Another frequent argument cited by States and the like’.315 Several countries for non-compliance was the politically pointed to the occurrence of polygamy sensitive nature of issues related to marriage in their communities, even though and family relations (e.g., Mali,302 Jordan,303 the practice is not legally recognised Lebanon,304 Thailand305). A delegate from (e.g., Guinea Bissau,316 Kazakhstan,317 Jordan noted that ‘[w]ithdrawal of the Turkmenistan318). The same was true CEDAW and Muslim Family Laws: In Search of Common Ground 17

with regard to rights related to marriage in Islamic jurisprudence’.341 Egypt even (e.g., Benin,319 Guinea,320 Mali321). admitted that ‘[p]olygamy is a matter Mali stated that ‘[t]he Marriage and of dispute among Islamic jurists: one Guardianship Code allows the possibility group interprets the Koranic verses as of a monogamous marriage being permitting polygamy while another group converted into a polygamous marriage interprets them as being conditional with the wife’s consent. In practice, it is and not general. Some people call for common for the wife’s consent to such a careful reading of the texts, claiming a conversion to be obtained through that they do not indicate support for abuse, threats and intimidation’.322 polygamy but on the contrary forbid Benin noted that although women had it’.342 Delegations acknowledged ongoing the right to choose their spouse, ‘there debates surrounding these various exist survivals of traditional practices interpretations, such as ‘lively debates’ whereby a daughter’s husband is chosen in Pakistan particularly on the Hudood without her consent‘.323 Guinea noted laws.343 that this gap was ‘particularly true in • Engaging religious leaders: A number the case of child marriages and forced of countries spoke of engaging with marriages’.324 Gabon stated that although religious leaders in their efforts towards the law prohibited dowry, the practice equality between men and women in the continued.325 family (e.g., Azerbaijan,344 Burkina Faso,345 • More action needed: A number of Gambia,346 Indonesia,347 Maldives,348 countries proffered that more action Pakistan349). Gambia, for example, said must be taken with regard to achieving that it ‘maintained an ongoing dialogue equality for women within the family with religious and community leaders, (e.g., Algeria,326 Gabon,327 Gambia,328 seeking their interpretation of religious Guinea Bissau,329 Maldives330). Gambia laws on relevant issues and consulting noted that it was important that them on legislation’.350 Indonesia shared ‘customary laws and practices that are that a ‘gender sensitivity training had discriminatory against and harmful to been conducted for religious leaders in women are thoroughly reviewed’.331 the area of marriage and family’.351 With Guinea Bissau noted that it needed a new regard to early marriage, Azerbaijan civil code,332 and Gabon stated that ‘most shared that ‘[t]he Government was very of the legal texts in Gabon needed to be concerned about the question, and a strengthened to ensure that there were committee was working with religious no differences between legal texts and groupings to address it’.352 The Moroccan practices’, such as in the case of dowry.333 Ministry of Habbous and Islamic Affairs The Maldives noted that ‘rapid behaviour ‘issue[d] guidelines for devoting Friday change existed and must be explored’.334 sermons in mosques to respect for women’s rights and equality between • Various interpretations exist: Some men and women’.353 States parties admitted that several interpretations of the Qur’an and/or • Looking at positive examples from Islamic practices exist and there is no one other Muslim countries: A few monolithic interpretation (e.g., Egypt,335 countries shared that they were looking Mali,336 Mauritania,337 Pakistan338). Syria, to other Muslim countries for examples for example, stated that ‘the Islamic on how to more progressively interpret countries did not all have the same Shari‘ah in the context of family relations. positions on the various articles of the ‘Singapore had organised seminars Convention’339 and Mauritania noted attended by forward-looking scholars that several of society’s problems ‘were from other Muslim countries on the often further impeded by erroneous progressive interpretation of sharia law’ interpretations of religious texts that and ‘[f]requent exchanges and visits by opposed the empowerment of women’.340 Muslim leaders had been arranged with A delegate from Mali conceded that other Muslim countries that were often ‘there was indeed room for interpretation interested in how Singapore’s Muslim 18 Musawah for Equality in the Family

community had managed to reconcile full only granted with the consent of the wife, integration in Singaporean society with they showed how in reality this consent its strong Islamic values’.354 Maldives is rarely sought. NGOs also cited the shared that it was developing a project continued persistence of child marriage with the UNFPA whose specific objective for a number of reasons including was ‘reviewing the existing laws and adherence to customs, traditions, and customs to identify gender sensitivity and religious teachings as well as poverty, do a comparative study with the legal family and community pressure.364 system of other Muslim countries’.355 The • Making recommendations: Virtually all delegation from Indonesia stated that of the NGOs listed recommendations they the suggestion ‘to study the approach would like their governments to take in of other Muslim countries would be order to correct the discrimination cited. considered’.356 In some instances these recommendations were quite vague, for example, calling 2.4 NGO approaches and for their government to ban polygamy,365 child marriage,366 forced marriage,367 lift strategies reservations.368 In other instances, however, Analysis of non-governmental organisation recommendations were quite specific, shadow reports and oral statements revealed such as dictating how to harmonise civil that family and marriage relations were laws with religious laws on, for example, priority issues for most non-governmental marriage, divorce, alimony, nationality, organisations located within Muslim-majority guardianship, and custody;369 suggesting countries. The most commonly raised issues a series of specific actions that must be were polygamy, child marriage, plural taken to change cultural and religious legal systems, marital rape, inheritance, discriminatory beliefs and practices, 370 guardianship, and the right to pass one’s engaging with religious organisations, nationality to one’s spouse. Various such as awareness raising campaigns, 371 strategies and methods were employed by workshops, and roundtables; and NGOs when articulating and advocating identifying specific laws and/or sections of 372 these issues: laws that must be repealed. • Highlighting the gap between de • Describing sociopolitical contexts: jure and de facto discrimination: Several NGOs described the socio-political Virtually all of the NGOs who provided context within which discrimination submissions to the CEDAW Committee is taking place, such as the place of 373 highlighted the gap between de jure and Islam in their country, and its use for de facto discrimination in their country. justification for religious practices such 374 For example, where the right to divorce as polygamy. A country’s political existed, several obstacles towards its situation, such as upcoming elections or practical realisation were cited such as: political conflict, was sometimes cited as cost,357 having to first return the dower an explanation for increasingly restrictive (mahr),358 having to forfeit custody of policies and interpretations of Islam. children,359 having to prove cause,360 Poverty was given as the reason that and requiring prior approval of informal/ certain practices, such as bride price, alternate dispute mechanism.361 Where dowry, and child marriage, are occurring 375 polygamy was prohibited, NGOs provided and/or are on the rise. data and statistics proving its continued • Recalling previous concluding existence, especially in rural and traditional Observations: Where applicable, communities.362 Where polygamy was NGOs cited points of concern and restricted, with strict prior conditions to be recommendations issued by the CEDAW fulfilled before permission can be granted Committee in previous CEDAW Committee by a judge, the NGOs tell of how rarely Concluding Observations to enhance their this permission is ever denied and/or points of advocacy. In several instances, serves as an impediment.363 Where it is for example, the NGOs were able to recall CEDAW and Muslim Family Laws: In Search of Common Ground 19

previous recommendations issued by the which polygamy is banned and Muslim Committee to lift reservations, abolish countries that had lifted reservations polygamy, raise the minimum age of to the Convention on the grounds of marriage, and so forth. religion.378 A few NGOs cited progressive • Documenting the effects of Islamic scholars or the Qur’an to refute discrimination: NGOs cited the effects stringent interpretations proffered by that de jure or de facto discrimination their governments or suggest progressive has on women. For example, in the interpretations on issues including case of polygamous marriages, NGOs guardianship, polygamy, child marriages, described the discrimination felt by the and inheritance.379 first, second, third, and fourth wives and • Case studies: NGOs used case studies the effect is has on perceived gender to illustrate discrimination faced by 376 roles and power structures. In the case women in family and marriage matters, of child marriage, reproductive health such as the story of a little girl forced effects on the girl child were described as into marriage or a second wife in a well the obstacles towards her continuing polygamous marriage. her education and hence being able to earn a living.377 They also described how This marks the end of Chapter 2, which forced marriage was more likely to lead describes the various approaches taken by to incidences of domestic violence. the CEDAW Committee, States parties, and • Citing positive Muslim examples and non-governmental organisations on family progressive scholars: A number of matters. The next chapter focuses on how NGOs cited examples of more progressive the Musawah Framework for Action can interpretations of Islam in other Muslim be applied in responding to some of these countries, including family laws in approaches and arguments. 20 Musawah for Equality in the Family CEDAW and Muslim Family Laws: In Search of Common Ground 21

3. Applying the Musawah Framework in the context of CEDAW

This chapter provides information about • Equal rights and responsibilities with Musawah’s approach to issues of equality respect to property, including acquisition, in the family, based on the Musawah ownership, enjoyment, management, Framework for Action. It outlines Musawah’s administration, disposition and inheritance, holistic Framework, which integrates Islamic bearing in mind the need to ensure the teachings, universal human rights, national financial security of all members of the constitutional guarantees of equality, family; and and lived realities of women and men. • Equal rights and responsibilities of parents The Framework was conceptualised and in matters relating to their children. developed through a series of meetings and discussions with Islamic scholars, Musawah believes that Islamic teachings academics, activists and legal practitioners and universal human rights standards, from approximately thirty countries. including the CEDAW Convention, are fully compatible, and that both are dynamic and The Framework for Action contains a constantly evolving. preamble and three main sections ‘Equality and Justice in the Family are Necessary’, Based on the Qur’anic teachings, justice is ‘Equality and Justice in the Family are integral to the philosophy of law in Islam; Possible’, and three ‘Principles on Equality but justice is also an extra-religious value. and Justice in the Family’: Our notions of justice and injustice are influenced by other factors, including our Principle 1: The universal and Islamic lived realities. They thus change with time values of equality, non-discrimination, and context. This, too, is reflected in the justice and dignity are the basis of all Islamic legal tradition. Musawah holds that human relations. in our time and in our context, there can Principle 2: Full and equal be no justice without gender equality. Many citizenship, including full participation aspects of Muslim family laws, as defined in all aspects of society, is the right of by classical jurists and as reproduced in every individual. modern legal codes, are neither tenable in contemporary circumstances nor defensible Principle 3: Equality between men on Islamic grounds. Not only do they fail to and women requires equality in the fulfil theShari‘ah requirement of justice, but family. they are now being used to deny women The Framework states that realisation of dignified choices and rights in life. This these three principles entails laws and disconnect between outmoded notions of practices that ensure: justice and outmoded laws and customs and present-day realities lie at the root of • The family as a place of security, continued discrimination against women in harmony, support and personal growth the Muslim family. for all its members; In the twenty-first century, the provisions • Marriage as a partnership of equals, with of the CEDAW Convention — which stands mutual respect, affection, communication for justice and equality for women in the and decision-making authority between family and society — are more in line with the partners; the Shari‘ah than family law provisions in • The equal right to choose a spouse or many Muslim countries and communities. choose not to marry, and to enter into As such, the rights outlined in the CEDAW marriage only with free and full consent; Convention, particularly in article 16, should and the equal right to dissolve the be incorporated into Muslim family laws and marriage, as well as equal rights upon its practices. dissolution; 22 Musawah for Equality in the Family

This chapter provides an overview of such that their wives were not obliged to the general approach of the Musawah do housework or even suckle their babies. Framework, including an explanation of Women, in turn, were required to obey their why equality and justice in Muslim family husbands completely. laws and practices are necessary and It was within this context that Muslim jurists are possible. Next, it provides responses read and interpreted the Qur’anic verses, to several of the common arguments defined marriage as a civil contract that or justifications made by States parties places a woman under the protection of the about why they fail to fully implement the husband, and assigned rights and duties provisions of CEDAW. It then provides that supposedly complement the different support for equality on specific family law and separate roles of the man and woman. issues, based on the holistic Framework that This is the source of the dominant idea combines Islamic teachings, international that persists today that men and women human rights standards, constitutional cannot be equal in marriage because ‘Islam’ guarantees, and lived realities. Together, has assigned them complementary and this general and specific information can reciprocal roles and responsibilities. be used to strengthen the discussion in the CEDAW process about family law issues. By the early twentieth century, the idea that equality is intrinsic to conceptions of justice began to take root. The world inhabited by 3.1 General application the authors of classical jurisprudential texts of the Musawah had begun to disappear. Until the nineteenth Framework century, fiqh, the jurisprudential science of understanding Shari‘ah was dynamic, The main assertion of the Musawah in line with the values and practices of its Framework is that equality and justice in own time. But because of the new political Muslim families — both de jure and de context, including the colonial occupation of facto — are both necessary and possible. Muslim lands and the rise of Muslim nation The Framework provides a historical, states, the relationship between Islamic jurisprudential, and sociological outline to legal tradition, the state, and social practice support this assertion. began to change. Women and Islamic law Equality and justice in the family are became symbols and carriers of cultural necessary tradition, a battleground between the forces Most family laws and practices in today’s of traditionalism and modernity. The state Muslim countries and communities are put aside fiqh in all areas except marriage based on theories and concepts that were and the family, and then began to codify fiqh developed by medieval/classical jurists concepts and rulings as part of the process (fuqaha) in vastly different historical, social of nation formation and identity politics, and economic contexts. In interpreting the taking the fiqh concepts out of context and Qur’an and the Sunnah of the Prophet, selectively reforming, codifying and grafting classical jurists were guided by the social them onto legal systems inspired by Western and political realities of their age and a models. set of assumptions about law, society and gender that reflected the state of knowledge, Most of the current Muslim family laws and normative values and patriarchal institutions personal status codes were created through of their time. The idea of gender equality this process, based on assumptions and had no place in, and little relevance to, concepts that have become irrelevant to the their conceptions of justice. It was not part needs, experiences and values of Muslims of their social experience. The concept of today. The administration of these hybrid marriage itself was one of domination by the statutes shifted from classical scholars, husband and submission by the wife. Men who became increasingly out of touch with were deemed to be protectors of women changing political and social realities, to and the sole providers for the household, executive and legislative bodies that usually CEDAW and Muslim Family Laws: In Search of Common Ground 23

had neither the legitimacy nor the inclination of the Prophet. As a concept, Shari‘ah to challenge pre-modern interpretations of cannot be reduced to a set of laws — it the Shari‘ah. Even in Muslim communities is closer to ethics than law. It embodies where classical juristic concepts have not ethical values and principles that guide been codified into law, the centuries-oldfiqh humans in the direction of justice and rules and colonial and local norms have, correct conduct. What many commonly in many cases, been invoked to sustain assert to be Shari‘ah laws, and therefore inequality between women and men within divine, are, in fact, often the result of the family and wider society. Injustices fiqh, juristic activity, hence human, resulting from this disconnect between fallible and changeable. outdated laws and customs and present-day • There are two main categories of legal realities abound in many Muslim countries rulings: ‘ibadat (devotional/spiritual and communities. acts) and mu‘amalat (transactional/ Consequently, fiqh does not take into contractual acts). Rulings in the ‘ibadat account nor reflect present-day realities like category regulate relations between the necessity for women and men to seek God and the believer, and therefore employment as migrant workers, which has offer limited scope for change. Rulings changed the dynamics of the Muslim family. in the mu‘amalat category, however, regulate relations between humans, and Equality and justice in the family are therefore remain open to change. Since possible human affairs constantly evolve, there Governments of countries that have Muslim is always a need for new rulings that family law systems often argue that the use new interpretations of the religious laws cannot be amended to allow equality texts to bring outdated laws in line with between men and women because the law the changing realities of time and place is divine Islamic law (or Shari‘ah), and (this is a concept recognised in Islamic therefore unchangeable, or that practices jurisprudence known as zaman wa cannot be changed because they are part makan). This is the rationale for ijtihad of the Islamic tradition. As outlined above (lit. endeavour, self-exertion), which is a in the findings from the Musawah research method in Muslim jurisprudence for finding project, such statements can be seen in solutions to new issues in light of the the justifications used by governments that guidance of revelation. Rulings concerning have reported to the CEDAW Committee. the family and gender relations belong to Musawah’s Framework for Action refutes this the realm of mu‘amalat, which means that argument, declaring that equality in Muslim Muslim jurists have always considered family laws is possible, and that such laws them as social and contractual matters must change to ensure equality, fairness, that are open to rational consideration justice and dignity for men, women and and change. children within family relationships. • Diversity of opinion (ikhtilaf) is a basic Several basic concepts in Islamic legal concept that has always been a part of theory lay the foundation for this claim:380 fiqh, even after the formal establishment of schools of law. There is not now, nor • There is a distinction between Shari‘ah, has there ever been, a single, unitary the revealed way, and fiqh, the science ‘Islamic law’. It is commonly recognised of Islamic jurisprudence. In Islamic that there are multiple schools of Islamic theology, Shari‘ah (lit. the way, the path law, and family laws in different countries to a water source) is the sum total of vary widely, with individual provisions religious values and principles as revealed on every aspect of family life that differ to the Prophet Muhammad to direct considerably from country to country. human life. Fiqh (lit. understanding) is Such diversity has been acknowledged by the process by which humans attempt several States parties during the CEDAW to derive concrete legal rules from the review process.381 The very existence two primary sources of Islamic thought of multiple schools of law, along with and practice: the Qur’an and the Sunnah the huge variety in Muslim family law 24 Musawah for Equality in the Family

provisions, attests to the fact that no one between humans, they can change within person, group or country can claim there the framework of Islamic principles, in is a unified, monolithic, divine Islamic law conjunction with international human rights over which they have ownership. Within standards and constitutional guarantees of the context of the modern state, we must equality, and in accordance with the changing recognise and engage with this diversity realities of time and place. Positive reforms of opinions to determine how best to in Muslim family laws and evolutions in serve the public interest (maslahah) practices provide support for this possibility and meet the demands of equality and of change. For instance, as the injustices of justice. slavery became increasingly recognised and the conditions emerged for its abolishment, • Justice is inherent to the philosophy of law laws and practices related to slavery were in Islam, thus laws or legal amendments reconsidered and the classical fiqh rulings introduced in the name of Shari‘ah that recognised slavery became obsolete. and Islam should reflect the values of equality, justice, love, compassion and Thus the teachings of Islam provided a mutual respect among all human beings. trajectory of reform that, carried forward These are values and principles on which 1400 years later to match the time and Muslims agree and which Muslim jurists context, should lead to equality between hold to be among the indisputable men and women. objectives of the Shari‘ah, and are also consistent with universal human rights principles and values. 3.2 Responses to In addition, historical events support the common State party idea of equality between men and women in justifications for non- terms of economic circumstances in marriage implementation of and family relations. The Qur’an introduced numerous reforms to existing cultural CEDAW practices relating to financial provisions for As seen from the results of the Musawah women, including guaranteeing women’s research project on CEDAW described above, right to own, inherit, and dispose property. States parties from OIC countries provide The Prophet Muhammad supported the a variety of justifications for why they activities of his first wife, Khadijah, as an cannot fully implement some or all of the independent businesswoman, showing provisions of CEDAW. Below are responses respect for women who served as equals in from Musawah to the main arguments that the financial aspects of a marriage. While relate to Islam or Muslim laws, and to point the Islamic tradition recognised women’s the way to the possibilities of equality and right to property in or outside marriage, justice in Islam. English common law recognised married women’s rights to own property only in 1882 3.2.1 Shari‘ah is the principal under the Married Women’s Property Act. source of law defining The above arguments show that contemporary rights, duties, and family laws, whether codified or uncodified, responsibilities of men are not divine, but are based on centuries- old, human-made fiqh interpretations that and women were enacted into law by colonial powers and Many of the States parties that identify as national governments. Almost every Muslim ‘Muslim’ or ‘Islamic’ countries expressly country has a different family or personal state that ‘Shari‘ah’ is the primary source law, enacted by a legislative body, and these of legislation and/or is the principal source laws can and have been amended multiple for defining men and women’s rights, duties times in different countries. and responsibilities. They view Shari‘ah as Since these interpretations and laws divine law that is monolithic, unitary, fixed, are human-made and concern relations and unchangeable. CEDAW and Muslim Family Laws: In Search of Common Ground 25

Musawah takes the position that while the primary objectives within the Shari‘ah, Shari‘ah is the revealed law, fiqh is the should drive the development of all Muslim human attempt to understand the Shari‘ah, laws and practices. which can take the form of positive laws, legal rulings, and jurisprudence. Under the 3.2.2 Cannot implement if holistic Musawah Framework, while Shari‘ah inconsistent or in conflict may be a principal source of law, the human with Islam/Shari‘ah attempts to understand it and articulate it as positive laws must be grounded in universal Many of the statements made by States human rights standards (which Musawah sees parties can be distilled into the simple as consistent with human rights standards in argument that they cannot implement some Islam), constitutional guarantees of equality or all of the CEDAW provisions if those and non-discrimination, and the lived realities provisions are inconsistent with ‘Islam’ or of men and women today. ‘Shari‘ah’. In many cases, States parties The confusion today lies in the misuse and identify specific issues – such as polygamy, misunderstanding of terminologies. Much of inheritance, age of marriage, etc. – for which what is today called Islamic law or Shari‘ah they argue that laws or practices cannot law is actually fiqh, the product of human be changed because of specific verses in engagement with the revealed text. This the Qur’an or specific hadith that relate to man-made production of knowledge led to that issue. In some cases, the State party the development of diverse schools of law, will enter a reservation; in others, the or mazhab, within Islam. The multiplicity State party will simply say that the CEDAW of positions and opinions between and provision related to that issue cannot be even within the different schools of law implemented because it conflicts with or is constitutes the rich body of what should inconsistent with Shari‘ah. For instance, the more accurately be called the ‘Islamic United Arab Emirates placed a reservation legal tradition’, rather than ‘Islamic law’. on article 2(f) because it ‘believes that this The various positions and opinions were paragraph conflicts with the provisions of developed by jurists, independent of states, the Islamic sharia concerning inheritance … and were not defined by or applied through and does not find it possible to comply with state mechanisms. it’.384 The Malaysian delegation stated that Malaysia ‘had concluded that marital rape Because Islamic law is fiqh, or the ongoing could not be made an offence, as that would human understanding of the Shari‘ah, it can be inconsistent with sharia law’.385 never be fixed or, as Egypt said regarding inheritance laws, ‘a settled matter’.382 A As outlined in the general overview of the respected fourteenth-century Muslim jurist, Musawah Framework, Islam and Islamic law Ibn Qayyim al-Jawziyyah, wrote, ‘The are not monolithic — there are and always fundamentals of the Shari‘ah are rooted have been multiple understandings and in wisdom and promotion of the welfare of interpretations of Islamic law. Ikhtilaf, which human beings in this life and the Hereafter. means disagreement, difference of opinion Shari‘ah embraces justice, kindness, the and diversity of views, especially among the common good and wisdom. Any rule that experts of Islamic law, is widely recognised departs from justice to injustice, from and respected in the Islamic tradition.386 kindness to harshness, from the common Islamic jurisprudence has been developed good to harm, or from rationality to absurdity through multiple schools of law (mazhab), cannot be part of Shari‘ah, even if it is arrived with different views in every school. A key 383 at through individual interpretation.’ principle of such jurisprudence is that each Muslim laws should never be considered jurist can go back to the texts, examine fixed, especially if they promote injustice, the knowledge that has been developed, harshness, or harm. The values and consider the new experiences and problems principles of equality, justice, love, that arise, and develop new rulings based on compassion, and mutual respect, which are sound application of the juristic methods. 26 Musawah for Equality in the Family

However, fiqh rulings on the family became that arise as a result of the disconnect literal expressions of the classical jurists’ between women’s lived realities and Islamic understanding of Islam’s revealed text and law as traditionally defined. The trajectory their notions of justice, gender relations, and for reform and the possibilities for equality legal theories, which reflected the social and and justice exist within Islamic legal political realities of their age. In that world, thought. But this effort towards a more just patriarchy and slavery were part of the society through a more just understanding fabric of society, seen as the natural order of of Islam must be an inclusive effort that things and a way to regulate social relations. represents the needs and interests, in The concepts of gender equality and human particular, of those who suffer the injustices rights — as we mean them today — had no and effects of discrimination. Leaving it as place and little relevance to the classical the exclusive preserve of the traditionalists jurists’ conceptions of justice. They were, in religious authority has only sustained in Arkoun’s terms, ‘unthinkable’ for pre- unjust patriarchal understandings of Islam. modern Muslim jurists, and thus remained ‘unthought’ in Islamic legal thought.387 Musawah approaches for specific issues like minimum age of marriage, guardianship and The ideas of human rights and gender consent to marriage, polygamy, and financial equality belong to the modern world. As the issues, are outlined in the following section pre-modern notions of marriage in Islamic of this report to demonstrate how a holistic legal theory lose their theological validity approach can provide solutions that uphold and their power to convince, the discourses Islamic principles of equality and justice, of feminism and human rights have consistent with human rights obligations. combined to bring a new consciousness and a new point of reference for Muslim women 3.2.3 Islam provides and reformist thinkers. The ideas of equal rights for women and equality in the family superior or sufficient are among, to use the fiqh idiom, the ‘newly justice for women or created issues’ (masa’il mustahdatha) that complementarity of rights pose a challenge to Islamic legal thought. and duties between men Modern scholars of Islamic jurisprudence and women are reviving the traditional tools and On a historical level, Islam was incredibly methodologies in order to re-read and advanced in providing revolutionary understand Islamic sources and use classical rights for women and uplifting women’s juristic principles such as ikhtilaf (diversity status in the seventh century. Many of the within Islamic law and fiqh), istihsan revelations in the Qur’an were by nature (adopting the idea or principle that is better, reform-oriented, transforming key aspects more useful), maslahah (choosing that of pre-Islamic customary laws and practices which benefits the public interest or common in progressive ways in order to eliminate good), ijtihad (exerting effort to form an injustice and suffering. The Prophet independent judgment on a legal question), Muhammad received a series of revelations, and maqasid al-Shari‘ah (the objectives each building on or superseding customary of the Shari‘ah) to develop solutions for laws. Sometimes later revelations advanced the ‘newly created issues’. Working with earlier revelations, providing guidance to progressive scholars to better understand the new community as new challenges and these tools and the possibilities they entail is problems arose. one way to open the dialogue about equality in Muslim laws and practices, instead of The reforms that took place in the early simply stating that change is impossible. If years of Islam are clearly progressive, ‘Islam is the solution’, if Islam is relevant for changing with the needs of the society. all times, and if Islam is supposed to bring However, the more detailed rules that were justice, then it is legitimate and imperative laid out by the classical jurists allowed for governments to engage with women’s many pre-Islamic customs to continue, rights activists and scholars to search for and also reflected the needs, customs and new solutions to the conflicts and tensions expectations of the society in which they CEDAW and Muslim Family Laws: In Search of Common Ground 27

lived instead of continuing the progressive or sister, not requiring the wife to support reform that was started during the time either herself or her family, even if she is of the Prophet. The trajectory of reform wealthy. All the property she owns is for begun at the time of the Prophet was thus her alone and she is not required to provide halted in the medieval period through the for anyone.’388 Saudi Arabia stated, ‘For further elaboration of fiqh, which was then example, a man’s inheritance is twice that selectively codified in the nineteenth and of a woman. However, he is responsible for twentieth centuries. The modern world is supporting his family regardless of his wife’s incredibly different than it was during the financial situation; she is not obliged to early centuries of Islam and the medieval spend on her family, even if she is wealthy era. The example of progressive reform or works.’389 from the beginning of Islam must be used to There is a huge disconnect between the law address the needs of the people today. Islam and the practice, however, and the logic of did provide superior justice for women, but reciprocity does not reflect reality for most the trajectory was halted. men and women today. Thus, the argument Many States parties justify inequality about reciprocal arrangements is a legal between men and women in laws and fiction grounded in medieval fiqh thinking practices, especially those relating to that remains rigid in spite of the changed financial rights, stating that men and realities. Today Muslim women are engaged women have complementarity or reciprocity in the public sphere, are economically active, in terms of their rights and obligations, and there is greater acknowledgement of especially in marriage. The argument is the value of their unpaid domestic labour. that husbands have a duty to give a dower Men do not lose their privileges/rights and to the wife upon marriage and to provide are not punished when they do not carry maintenance for the wife and children out their responsibilities. For example, it is during their marriage, while women have no common to hear of family stories where it legal obligation to support their husbands is the daughter who financially, physically, or families even if they are wealthy. and emotionally takes care of ageing Therefore, the laws are constructed to give parents until their deaths, and yet it is the men additional rights — double shares of irresponsible son who still receives double inheritance, unilateral right to divorce — in the shares of inheritance. Even though he relation to their additional responsibilities, contributed nothing to the parents’ care while women have additional responsibilities and well-being, he remains privileged over — full obedience to their husbands — in his responsible, care-giving sister. Since return for the financial benefits they receive. privilege is linked to responsibility, shouldn’t Many authorities in Muslim societies do not the irresponsible man lose his privilege consider this discrimination, but rather when he fails to carry out his duties? reciprocal or complementary obligations. Women often bear the burden of maintaining For instance, the United Arab Emirates the household simply out of necessity, but State party report stated, ‘The United Arab cannot receive greater inheritance shares Emirates considers that the payment of to reflect these greater responsibilities a dower and of support after divorce is an that are supposedly men’s burdens. obligation of the husband, and the husband Malaysia stated that ‘[a] married woman has the right to divorce, just as the wife has who possesses means of her own is under her independent financial security and her no obligation to pay towards the upkeep full rights to her property and is not required of the household although many married to pay her husband’s or her own expenses women with independent means do so’,390 out of her own property.… As for the question thereby highlighting that women contribute of equality of rights and responsibilities to the household but ignoring the fact that during marriage and its dissolution, the women sometimes do so out of necessity for sharia honours women and makes the man ensuring financial stability in the household responsible for the financial support of the because the husband is not fulfilling his legal woman, whether his wife, daughter, mother obligation. 28 Musawah for Equality in the Family

In traditional Muslim societies, men had explicitly stated or strongly implied in the greater rights but were expected to shoulder message. The challenge today is how to greater responsibilities, while women had ensure that the eternal principles of justice fewer rights but were expected to shoulder and equality remain the outcome of our laws fewer responsibilities. Today, while men’s and practices. traditional responsibilities are reduced, their traditional rights have not changed; 3.2.4 Culture, customs, or and while women’s responsibilities have traditions, including increased, their traditional rights have minority rights, prevent not changed. This is largely due to the tendency to regard men’s traditional rights full implementation as immutable and unquestionable, instead In both Muslim majority and Muslim minority of as the result of the development of fiqh contexts, culture, customs, or traditions are rules by human juristic interpretations and often used as an excuse for not fulfilling understandings in accordance with the international obligations. In majority sociocultural conditions of those times. In contexts, States claim change is difficult today’s societies, wives are told not to expect and takes time in the face of such traditions. their husbands to shoulder the responsibility In minority contexts, States justify non- of providing full maintenance for them and interference and lack of reform out of their children, but husbands are not told respect for the community. The consequence that it is unreasonable for them to continue of such arguments is that women’s rights to expect full obedience from their wives. It are sacrificed in favour of a vague notion of therefore appears that Muslim women are ‘culture’. This fuels a false dichotomisation expected to shoulder new responsibilities of culture and women’s rights, and often while enduring traditional restrictions on results in discrimination and inequality rights, while Muslim men are allowed to before the law. In the majority of cases, enjoy their full traditional rights although what lies behind the State’s refusal to act their traditional responsibilities have been are political considerations rather than reduced. The concept of reciprocity of rights regard for religious principles, and there is is thus a legal fiction that has lost its logic actually room for recognition of women’s over time. rights within the culture and tradition. This Furthermore, complementarity cannot be can be seen in the fact that a number of confused with true equality. States must countries hold reservations to article 16 of respond to biological and socially created CEDAW but not to similar articles in other differences between men and women that human rights treaties, such as article 23(4) result in women’s asymmetrical experience of the ICCPR. of disparity and disadvantage in a way that Addressing women’s rights in a context where achieves true equality of opportunity and cultural rights are also being articulated equality of results.391 (such as rights to religion, minority rights, Understandings of justice and injustice indigenous peoples’ rights) seems to present change over time. The Qur’anic teachings on international human rights actors with a women are part of its efforts to strengthen number of challenges.392 At times, it can and ameliorate the conditions of the weaker appear that the only choices are between segments of society in pre-Islamic Arabia an understanding of universalism that has — orphans, slaves, the poor and women — little room for cultural diversities on the one segments that were abused by the stronger hand, and a view that sees cultural rights elements in society. The specific legal rules as trumping women’s rights on the other of the Qur’an, be they on maintenance or hand; this can also be reflected as a debate inheritance, are conditioned by the socio- between collective and individual rights. historical background of their enactment. While acknowledging that human rights are Given a different time and context, what universal, there is nevertheless scope within was once considered just may today be the existing standards for a more nuanced considered unjust. What is eternal is the understanding of the rights and culture social objectives and moral principles debate.393 However, these approaches need CEDAW and Muslim Family Laws: In Search of Common Ground 29

to be applied more consistently, including in and public policy, every citizen has the right addressing Muslim family laws. to engage in the discourse and in the search for solutions towards a more fair, just, and It is important to recognise that Islam and compassionate society. Not only must active Muslim culture and practices are not isolated, but exist within contexts where there steps be taken to include women’s voices in are multiple cultures and multiple rights this engagement, such engagement must demands from different social groupings. be made in a manner that addresses power Islam is interpreted differently according imbalances that have historically excluded to locally prevailing customs. However, the women’s voices so they can take part in fact that customs are dynamic, together dialogue on an equal footing with men. with the principles discussed above that fiqh can change in accordance with the changing realities of time and place, provides an 3.3 Responses to specific opportunity for change in laws and practices issues towards greater fulfilment of rights. In addition to general justifications for The Musawah Framework clearly argues non-compliance with CEDAW provisions, that a multi-pronged approach is the most States parties often argue that they cannot effective way to ensure equality and justice. comply with regard to specific issues, It is essential to see religion, human rights such as polygamy, early age of marriage, standards, constitutional guarantees, and financial provisions, etc. because the issue lived realities as complementary, rather is mentioned in the Qur’an and is thus than separate. It is not acceptable to reject considered ‘fixed’. CEDAW principles based on a patriarchal understanding of a verse from the Qur’an, Musawah’s Framework provides support or to ignore the devastating effects resulting for equality and justice for such specific from a modern social phenomenon using family law issues from four interrelated respect for a traditional practice as a approaches: justification. One needs to approach these • Islamic sources and Muslim issues holistically, integrating human rights jurisprudence; and Islamic principles in a dynamic and constantly evolving process. • International human rights; It is therefore important for the CEDAW • National laws and constitutional Committee to continue to recommend guarantees of equality; and broad-based consultation among all those • Lived realities. who have a stake in and influence on the development of national laws and This report outlines support from these sources policies. In each context, this will include for each of several different key issues in family a variety of actors such as women’s rights life, as well as rights-based laws related to that 394 advocates, sociologists, counsellors, lawyers issue from a variety of countries. and constitutional experts, religious and Because constitutions, laws, and policies traditional leaders, and women on the differ dramatically between and are specific ground. In this way, the State party can to individual countries, this report will not gather information not only on religion and outline laws and constitutional guarantees culture, but also on constitutional guarantees of equality. It bears noting, however, that and lived realities, and determine how all of although many countries included in the these interact with the CEDAW and other Musawah study have constitutions that international human rights standards. provide a framework for rights claims, The issue of representation is crucial, as in some cases the rights specified do Muslim governments very often tend to not include gender equality and non- regard only those in religious authority discrimination. Where equality and non- as having the right to engage on matters discrimination are guaranteed, very often it of religion. Musawah asserts that in any is specifically stated that personal laws are country that uses religion as a source of law excluded from guarantee. Thus, in Muslim 30 Musawah for Equality in the Family

countries and minority Muslim contexts The Qur’an does not provide any where family laws are based on religion and specification for age of marriage. Surah custom, such constitutional guarantees of an-Nisa’ 4:6 requires that orphans reach equality and non-discrimination often do not the age of marriage and be found to be of apply to the area of personal status. sound judgement before they marry and their property handed over to them. This However, constitutions may similarly provide indicates that a person must have sufficient for the domestication of international law judgement and maturity to marry, and including treaties as well as fundamental attaining the age of majority alone is not rights such as rights to a family. These sufficient. Imam Abu Hanifah, the founder may be useful tools in expanding the of the Hanafi school of fiqh, stated that in understanding of States parties obligations the absence of other evidence, a boy will regarding equality and non-discrimination be considered to have reached the age of within their constitutional framework. Even majority at eighteen and a girl at sixteen. in countries where constitutional provisions provide that Islam is a source of law or the However, attempts by governments to set supreme source of law, Musawah argues that a minimum age of marriage at eighteen any apparent contradiction with guarantees for both men and women have often met of equality and non-discrimination can be with resistance from conservative religious resolved through rights-based interpretations authorities, claiming that this is ’un-Islamic’. of Islamic principles. Some governments have even lowered the Thus the constitutional and legal frameworks minimum age of majority for girls to below guaranteeing equality should be considered sixteen. Commonly, the example of the on a country-by-country basis for each of Prophet Muhammad’s marriage to Aishah is the following issues. used to justify child marriage. Reportedly, Aishah was six years old when she was 3.3.1 Child marriage betrothed and nine when the marriage was consummated. However, the question arises While most States parties reviewed in the as to why the Prophet’s marriage to Aishah Musawah CEDAW research cited efforts to is used as model while his marriage to combat child marriage, a few stated that it Khadijah, a widow fifteen years older than is a problem (e.g., Indonesia,395 Guinea,396 him, or his marriage to other widows and Maldives,397 Togo398). In some cases, this was divorcees ignored as exemplary practices. blamed on prevailing socio-cultural patterns There are also new studies to assert that (e.g., Indonesia,399 Bahrain400) or an increase Aishah was more likely to have been in Islamic extremism (Maldives401). Saudi nineteen at the time of her marriage, rather Arabia stated that ‘There is no minimum than six.403 legal age of marriage for men or women, It is well understood that universal human however, it is preferable that both spouses rights standards guard against marriage for are of the age of majority. The Committee, children under the age of eighteen. States when considering this matter, should bear in have a duty to protect children, who are mind that each country has environmental generally defined as persons below the age and physiological particularities, and it is of eighteen.404 Several committees view known that the age of majority in the hot eighteen as a minimum age of marriage, Eastern countries is lower than it is in the and state that the minimum age should be 402 cold Western countries.’ the same for boys and girls.405 Children have Musawah’s response to the problem of a right to education, and early marriage can child marriage combines analysis of the be a major impediment to this.406 The Beijing Islamic legal tradition on minimum age of Platform for Action (BPFA) and CEDAW marriage, norms set forth in international General Recommendation number 21 human rights documents, and sociological outline the negative consequences in terms and medical data about the realities of early of education, employment, and health that marriage and its detrimental effects on girls early marriage can have on women, their and young women. families, and their communities.407 CEDAW and Muslim Family Laws: In Search of Common Ground 31

Research based on social realities supports enough workers. Socially, the role of wife/ an equal minimum age of marriage by mother/parent/adult was vastly different identifying the many negative health, to what it is today, what with changes in educational, and economic consequences education, careers, the structure of the of early marriage for girls. The Beijing family, etc. as well as the psychological, Statement and Platform for Action states, economic, social and biological functions ‘More than 15 million girls aged 15 to 19 of being a wife and mother. Household give birth each year. Motherhood at a very structures are changing, with a gradual young age entails complications during increase in nuclear families and decline pregnancy and delivery and a risk of of extended families living together. This maternal death that is much greater than translates into a decrease in family support average. The children of young mothers for young brides as they try to cope with the have higher levels of morbidity and challenges of married life. In addition, the mortality. Early child-bearing continues to onset of puberty is no indication of sufficient be an impediment to improvements in the maturity for marriage. educational, economic and social status Early marriage of girls under the age of of women in all parts of the world’. Early eighteen is a form of violence. They are marriage forces girls into sexual relations, deprived of their childhood and forced which can have serious psychological and to take up heavy household and family physical health consequences. Furthermore, responsibilities, sometimes on top of their younger women often have less knowledge educational or economic responsibilities. of their own bodies and less strength to Such heavy burdens on young girls often stand up to their husbands if they are sick, lead to marital problems and subsequent hurt, or face domestic violence. marital breakdown and/or divorce. Girls who marry later are more easily able and A few examples of rights-based laws from expected to complete a high school education various OIC countries regarding equal and pursue higher education, which accords minimum age of marriage include: with the fundamental right to education and the idea that seeking knowledge is a • Algeria: The minimum age of marriage right and a responsibility of every Muslim. is nineteen for both males and females This also translates into a better-educated after the February 2005 reform. The society and gives women a better chance to judge can grant an exception on the pursue professional goals and contribute to a grounds of benefit or necessity. nation’s economy. When girls marry young, • Bangladesh: Under the Child Marriage they often decide to leave school, leading to Restraint Act (1929, amended in 1984), poorer employment opportunities. Because the minimum age is eighteen for females they are not able to secure well-paying jobs, and twenty-one for males; exceptions are they are often more vulnerable to economic not permitted. dependence and have weaker bargaining powers within marriage. • Morocco: Under the 2004 revision of the Moudawana, the minimum age is Equating the age of majority with the age eighteen for both males and females. of puberty and/or rationality (baligh), as is A judge may grant an exception to traditionally done, fixes adulthood at too the minimum age with the assistance young an age. The concepts of adulthood, of medical expertise or after having maturity, and the roles of husband or wife conducted a social enquiry. are dramatically different today than they were during the classical era when the rules • Sierra Leone: In June 2007, the Sierra of fiqh were solidified. Hundreds of years Leone Parliament passed three ‘Gender ago, it was usual for boys and girls to marry Acts’ which benefit women. When young because life spans were shorter, fully implemented, the Registration of education was not as necessary, and family Customary Marriage and Divorce Act production units as opposed to nuclear will set the minimum marriage age at families predominated in order to ensure eighteen. 32 Musawah for Equality in the Family

• Turkey: Under the 2001 amended Civil The doctrine of ijbar, under which the Code, the minimum age has been raised guardian has the right to determine a from fifteen to eighteen for females. spouse and compel a ward to marry, is Under exceptional circumstances, the still practised in some countries. There is minimum age can be lowered to sixteen no authority in the Qur’an or the Sunnah with the court’s permission. of the Prophet for the doctrine of ijbar. As Mohammad Hashim Kamali states in his 3.3.2 Freedom to choose if, book, Islamic Law in Malaysia, ‘A perusal when, and whom to marry of the relevant evidence suggests that the power of constraint in marriage, known The issue of consent in marriage relates as wilāyat al-ijbār, has little support in the both to whether the two parties to the Qur’an and Sunna and it is most likely to be marriage must give their consent to be rooted in social customs of the Arab society married and whether anyone else must that survived and were eventually adopted give consent for the marriage to take place. by the [classical] jurists’.410 In other words, it Under many Muslim family laws, a woman is is a pre-Islamic custom that was incorporated required to have a legal guardian (wali) who into fiqh by humans. has the authority to contract a marriage on her behalf. Thus, adult women do not have In April 2005, Saudi Arabia’s top religious the legal capacity to contract their own authorities banned the practice of forcing marriages. In most countries, the consent women to marry against their will, stating of the bride is required in addition to the that the practice contravenes the provisions consent and authority of the guardian. of Shari‘ah. The clerics said that whoever However, silence is often considered a forces a woman to marry against her will is form of acceptance. At one point in Muslim disobeying God and His Prophet, and that history, the requirement of a wali applied to coercing women into marriage is ‘a major both boys and girls, and in some schools of injustice’ and ‘un-Islamic’. The kingdom’s law, both the mother and the father could mufti even recommended imprisoning hold guardianship.408 Today, however, it is fathers who insist that their daughters applied only to girls and held only by men. marry men against their will. There are no verses in the Qur’an or A number of human rights instruments, evidence in the Sunnah of the Prophet including the Universal Declaration of Human 411 412 that explicitly stipulate guardianship as a Rights, the CEDAW Convention, and the 413 condition for the marriage contract. Ibn Beijing Platform for Action, guarantee Rushd (d. 1198 C.E.), a well-respected both the right to enter into marriage after classical Muslim jurist, stated that ‘it is well- free and full consent by both parties and known that during the lifetime of the Prophet the right to freely choose a spouse. These there were many people without a guardian, are often considered the right to decide if, 414 but no one has reported the Prophet to have when, and whom to marry. Article 15(2) acted as guardian to conclude a marriage on of CEDAW requires States Parties to the their behalf, nor has he, in fact, authorised Convention to ‘accord to women, in civil others to represent him in that capacity’.409 matters, a legal capacity identical to that of men and the same opportunities to exercise There are also many court cases from pre- that capacity’. Taking away a woman’s ability colonial Egypt in which women were able to contract her marriage and giving it to a to represent themselves in contracting a wali prevents a woman from exercising her marriage. legal capacity at all, let alone on the same In the absence of injunctions or evidence level as a man. In addition, international in the Qur’an or the Sunnah, the Hanafi human rights instruments validate a position on guardianship, which states woman’s right to freely choose her spouse, that the wali is required only for marriages not just consent to the spouse chosen for involving minor boys and girls, and that her. Giving women both the ability to choose no wali is needed for the marriage of her spouse and the ability to consent are a competent adult woman, is the most essential for equality between men and acceptable in present-day society. women. CEDAW and Muslim Family Laws: In Search of Common Ground 33

In terms of social realities supporting freedom • Kyrgyz Republic, Turkey, Uzbekistan: to choose if, when, and whom to marry, A wali is not required. requiring the consent of a wali has a negative • Morocco: Couples may not be coerced impact on a woman’s autonomy, independence into marriage under any circumstances. and self-esteem. This is out of tune with A woman gains the capacity to contract women’s increasing levels of education and her own marriage upon reaching the their greater participation in economic, age of majority. She may contract her political, and social spheres. It is consistent marriage herself or delegate this power with today’s realities that women are enabled to her father or one of her relatives. to act as independent, rational, and capable human beings, equal before the law. • Nigeria: For Maliki communities (the majority of Nigerian Muslims), a Requiring a guardian to grant his consent biological father has the power of ijbar to a marriage even for women who are (courts may refer to Bulugul Marami, legal adults in all other aspects of their Fighus Sunnah Vol. II, p. 260). However, lives makes women perpetual minors. This the wali cannot compel his daughter to is derived from the concept of ‘protecting’ marry a man suffering from contagious women as they enter into marriage, which diseases (such as leprosy), insanity, or is paternalistic and does not recognise the reproductive problems. Case law is clear present-day circumstances of women who that ijbar cannot be enforced for adult are educated and earning their own living. women, and the courts generally accept Requiring a male guardian also devalues a a variety of circumstances that overrule woman’s ability to actively and powerfully the possibility of ijbar, including where participate in public and political life. Women the woman earns some money herself. should not be forced to ask for a guardian’s • Saudi Arabia: In April 2005, the top permission to marry or a guardian to religious authorities banned the practice negotiate their marriage contracts when of forcing women to marry against their they can hold executive roles in multi- will, stating that it contravenes the national corporations or ministerial positions provisions of the Shari‘ah. The clerics said in Government. that whoever forces a woman to marry Guardianship does not protect women from against her will is disobeying God and His difficulties in marriage, including divorce, Prophet, and that coercing women into domestic violence, and health risks such as marriage is ‘a major injustice’ and ‘un- HIV/AIDS. If women are required to grant Islamic’. free and full consent to their marriages and • Tunisia: The code states there is no are able to commit themselves to marriage marriage without the consent of both without needing a guardian’s protection and spouses. A marriage contracted without permission, they might be better able to choose compatible spouses. such consent is declared null and void. Both husband and wife have the right Some examples of rights-based laws from to contract their marriage themselves or various OIC countries regarding guardianship appoint proxies. The consent of a wali is and freedom to choose who, when, and if to not required, provided that the man and marry include: woman are of the legal age of consent. • Algeria: It is forbidden for the wali to compel a woman to marry; he may not 3.3.3 Polygamy give her in marriage without her consent. One of the main issues that arises in CEDAW • Bangladesh, Pakistan, sri lanka: A reviews of countries with Muslim family laws wali is not required for Hanafi women is that of polygamy. A number of States who have reached puberty. In Pakistan, parties argued that polygamy is clearly case law provides that marriage without stated in the Qur’an or the Shari‘ah. For the consent of the spouses is void (Mst. example, Libya stated that its reservation Humera Mehmood v The State and related to polygamy because it was a others, PLD 1999 Lahore 494). matter ‘on which there [was] clear and 34 Musawah for Equality in the Family

incontrovertible provisions in the sharia’,415 Those who support polygamy often refer to or Algeria, which stated that ‘for religious the Sunnah (practice) of the Prophet, who reasons it had not been possible to include had multiple wives in his later years, but complete abrogation of provisions relating selectively ignore the fact that the Prophet to polygamy in the proposed New Family was monogamous for more than twenty-five Code’.416 In some cases, States parties years, i.e. throughout the lifetime of his first stated that polygamy remains legal, but is wife, Khadijah. His polygamous marriages not widely practised (e.g. Algeria,417 Syria418) after her death were to widowed or divorced or is subject to numerous restrictions women for political and tribal reasons. The (e.g., Algeria,419 Morocco,420 Malaysia,421 only virgin he married was his second wife, Maldives422). Many States parties blamed Aishah. There is also an authentic hadith the continuation of polygamy on culture, that the Prophet forbade his son-in-law, Ali custom, and tradition (e.g., Togo,423 Burkina ibn Abi Talib from marrying another woman Faso424) or stated that women are supportive unless Ali first divorced the Prophet’s of the institution (e.g., Gambia,425 Mali,426 daughter, Fatimah, his existing wife. A great- Tajikistan427). granddaughter of the Prophet, Sakinah binti Hussayn, a granddaughter of Ali and Musawah believes Islam promotes Fatimah, put various conditions into her monogamy and only permits polygamy as marriage contract, including the condition an alternative in exceptional circumstances. that her husband would have no right to Surah an-Nisa’ 4:3 states: ‘If you fear that take another wife during their marriage. you shall not be able to deal justly with the orphans, marry women of your choice, two, One possibility for limiting polygamy is to or three, or four; but if you fear that you allow the existing wife an option for obtaining shall not be able to deal justly [with your a divorce on the ground of the husband’s wives] then marry only one.… That will be polygamy. This is not a new interpretation or more suitable, to prevent you from doing innovation. On the contrary, it is supported injustice’. When the Qur’an was revealed, by traditional practices from the early days it imposed limitations upon the pre-Islamic of Islam, is recognised by the Hanbali school practice of polygamy. The verse in Surah of law, which is often regarded as the most an-Nisa’ that allows polygamy if a man can conservative school among the four schools treat all his wives justly was revealed after a in Sunni Islam, and is accepted today in battle which had resulted in many men being various Muslim countries, including among killed, leaving behind many war widows Muslim communities who are not followers and orphans. As men were breadwinners of the Hanbali school, e.g., Jordan, Morocco, in that society, the widows found it difficult Egypt, Iran, and some countries in South to provide for their children. It was in this Asia. context that polygamy was tolerated in In terms of human rights standards, Islam: to provide for the welfare of widows polygamy is incompatible with the and the orphaned children. fundamental human rights principle of Even in that post-war situation, the Qur’an equality between men and women,428 discontinued the then-existing practice of contravenes the CEDAW article 1 definition unlimited polygamy and mandated that of discrimination, and violates a woman’s monogamy be the norm unless the man right to dignity. The fact that women can could deal justly with all of his wives. In the be coerced into entering polygamous present day, it is extremely difficult if not relationships or existing wives can be impossible for one person to treat multiple coerced into consenting to additional wives equally and justly. In fact, Tunisia wives violates the ‘free and full consent to has forbidden polygamy altogether on the marriage’ provisions of numerous human ground that it is impossible for a man to be rights instruments. Since a husband can able to deal justly with more than one wife. choose to marry multiple women, which can Thus, the continuum of reform suggests that affect the household finances, women in polygamy should be even more restricted polygamous relationships are denied their than it was in the situation discussed in the equal rights with regard to property under Qur’an. CEDAW article 16(1)(h). CEDAW and Muslim Family Laws: In Search of Common Ground 35

Polygamy is not an intrinsically ‘Islamic’ • Nearly sixty-five per cent of first wives practice, as some Muslims believe. In fact, in the study were unaware of their it was an institution that existed in various husbands’ intentions to marry another civilisations, religions and cultures in many woman. parts of the world, including among Jews, • While eighty per cent of husbands Chinese, Indians and Mormon Christians, thought they could be fair to all their until it was abolished by law as governments wives and children, only thirty per cent of realised the injustices it inflicted on women. first wives agreed this was possible. Polygamous cultural practices have been reformed through legislation in many times • While thirty-one per cent of husbands and situations, including in the time of the were ‘very satisfied’ with their marriages Prophet and in recent decades, in Muslim to both first and second wives, only seven countries around the world. per cent of first wives reported they were ‘very satisfied’ and thirteen per cent of Polygamy as practised today is largely second wives reported to being ‘very harmful to women and children, even if satisfied’. it is not widely practised in many Muslim societies. Polygamy disadvantages and • Forty-four per cent of first wives had discriminates against both the existing and to take on additional jobs in order to the subsequent wives. Essentially, polygamy support the family after their husbands makes the wife an object of the marriage, took second wives. About forty per cent giving the husband complete autonomy and of them ‘always’ or ‘often’ felt financially the wife no power in what is an emotionally- insecure since their husbands’ second charged shift in the terms of the marriage marriage. contract. Furthermore, polygamy can often • While sixty-three per cent of husbands result in inequality between the multiple thought they ‘always’ or ‘often’ shared wives, as one wife will have more seniority their financial obligations fairly among and power, both economic and psychological, their wives, over sixty per cent of first or be favoured by the husband within the wives did not think so. household. For these reasons and more, being in a polygamous relationship also violates a • Over ninety per cent of children of both woman’s right to dignity. She has no power the first and second wives said they or authority to overturn her husband’s would not recommend polygamy as a decisions, she cannot make decisions about form of marriage or family institution. the course of her own life, and she might Polygamy can also have detrimental effects feel degraded or belittled by the husband on children, as additional wives often result marrying an additional wife. If women are in more children who must share limited financially dependent on husbands and amounts of their father’s resources and husbands are allowed to marry again without strict oversight of their finances, it leads to time. This also can lead to conflicts within economic difficulties for the existing and the families if the wives and children feel subsequent wives. The idea itself of a man forced to compete with one another for the legally sanctioned to take another wife can finite amount of resources and attention be used as a powerful threat and a means provided by the husband. It can also for the husband to control his wife. promote low social and economic status among the women, especially if they are A Malaysian non-governmental organisation, financially dependent on the husband in the Sisters in Islam, in collaboration with first place. academics from three universities, has undertaken a groundbreaking research While monogamy does not guarantee a project on the impact of polygamy on the happy family life, the absence of a third family in Malaysia. This project included party and additional children and obligations surveys and in-depth interviews with to extra sets of family would help provide polygamous husbands, first and second women with greater security and allow wives, and the children of first and second the family unit to better grow and develop wives. Interim findings include:429 in a healthier environment. Currently, 36 Musawah for Equality in the Family

existing wives, especially those financially can keep any income or wealth for herself. dependent, often agree to another wife They regarded this as a form of justice for in the family because they are afraid the women. For instance, Egypt stated that it husband will divorce them if they do not did not want to lift reservations to article 16 consent. because ‘doing so would diminish the rights of women under Islamic law and Egyptian Finally, it is no longer necessary for men to law, which provide rights for woman and marry widows or orphans to protect them, relieve women of responsibilities which men since women in the twenty-first century are alone are required to bear’.434 able to provide and care for themselves or seek assistance from the State and other This argument sidesteps the reciprocal aspect bodies. that a woman is required to be obedient to their husbands in return for maintenance, Some examples of rights-based laws from such that her failure to obey (nushuz) various OIC countries regarding polygamy could lead to her losing maintenance or include: not receiving backdated maintenance in • Bahrain: In May 2009 a new Family Law divorce proceedings. It also overlooks that applies only to Sunnis was enacted the fact that many men do not fulfil the that allows women to prohibit their obligation to maintain the household, leaving husbands from taking second wives. women to fill in the gap while not removing their obligation of obedience. Where the • Kyrgyz republic, tajikistan, turkey, arguments raise a link between a man’s duty Uzbekistan: Polygamy is prohibited. to provide maintenance and his privileged • Tunisia: Polygamy was prohibited under share of inheritance, they neglect to mention the 1956 law based on the understanding that his failure to provide maintenance does of Surah 4:129 (‘You are never able to not disqualify him from double the share of be fair and just as between women, even inheritance. if it is your ardent desire …’) that no Although many laws do not recognise the husband can treat multiple wives equally. possibility of a matrimonial regime in which It is a criminal offence, rendering a man there is common ownership of resources in who contracts a polygamous marriage marriage, in practice marriage is based on liable to a year of imprisonment or a sharing and partnership. The logic of the fine of 240,000 Tunisian Dinars or both law — maintenance in return for obedience, and a woman who knowingly enters a and strict division of property in which the polygamous marriage liable to the same. man provides and the woman holds onto • In countries where marriage her own property — no longer holds in contracts are negotiated, which is practice. It is a legal fiction maintained to common throughout the Muslim world, keep women under control and in positions women can stipulate in the marriage of obedience. The logic behind the law needs contract that the husband cannot take to be reconsidered, and the Qur’an and the another wife. If the husband breaches Sunnah provide concepts to do this. this term of the marriage contract, the The Qur’an introduced numerous reforms woman has the right to divorce. to existing cultural practices relating to financial provisions for women, including 3.3.4 Financial issues and allowing women to keep their own property obedience and giving women shares of inheritance. Several of the countries reviewed in the This was the beginning of a trajectory of Musawah CEDAW study (e.g. Bahrain,430 reform that, carried forward 1400 years UAE,431 Saudi Arabia,432 Egypt433) stated later to match the time and context, should that inequalities in certain laws were lead to the elimination of the legal logic of not discrimination, but rather reflected maintenance in exchange for obedience and complementary obligations and rights under to the introduction of equality between men the Shari‘ah, namely that the husband is and women in all areas, including financial required to maintain his wife, while the wife matters. CEDAW and Muslim Family Laws: In Search of Common Ground 37

The Prophet’s first wife, Khadijah, was a the parties’ joint efforts, having regard successful, independent businesswoman. to the extent of contributions made by The Prophet supported his wife’s business each party towards acquiring the assets, activities, showing respect for women who debts owed by the parties and the needs serve as equals in the financial aspects of a of minor children to the marriage. For marriage. assets acquired by the sole efforts of a party, the Court may order division of the In the Qur’an, the term nushuz, or assets having regard to the other party’s disobedience, is used both for women (Surah contributions to looking after the home an-Nisa’ 4:34) and for men (Surah an-Nisa’ or caring for the family, though the party 4:128). It is therefore more appropriate to by whose efforts they were acquired shall define nushuz as the disruption of marital receive a greater proportion. Even though harmony by either spouse rather than a a woman may not have contributed woman’s disobedience to her husband. financially to the acquisition of the marital Human rights standards, especially under assets, her role as wife and mother are CEDAW, both explicitly and implicitly provide considered as indirect contributions and for equality between men and women in she is usually granted at least a third of terms of financial issues. These include that the share of assets. men and women should have the ‘same • Singapore: The Syariah Courts may rights and responsibilities during marriage take into account a wide variety of and at its dissolution’,435 and the same rights factors, including the wife’s contributions ‘in respect of the ownership, acquisition, to the household like domestic labour management, administration, enjoyment and primary responsibility for raising and disposition of property’.436 The CEDAW children. The lower courts may enforce Committee has emphasised the importance decrees, facilitating actual recovery of the of women being able to earn an income assets. Where a wife has made no direct as well as recognition of both financial and financial contribution in the acquisition of non-financial contributions to a marriage.437 the matrimonial home, she is entitled to In terms of social realities, women thirty-fifty per cent of the net proceeds throughout the world, including in various of its sale. Where she has made financial Muslim countries, are increasingly contributions, she is entitled to a share better educated and employed and are that is higher than her contribution. contributing toward the family financially as • Turkey: The revisions to the Civil Code well as in more traditional roles. This is not stipulate that equal division of property properly acknowledged in actual laws and and assets acquired during the marriage is understandings of reciprocity within family the default property regime for marriages laws, which are based on the old logic that solemnised under the new law. the husband supports the family financially and the wife obeys the husband entirely. • Indonesia: Women’s equal rights to matrimonial assets/properties is When both partners in a marriage do not recognised by Indonesia even though have equal capacity and responsibility to there is a division in roles whereby the contribute to and make decisions about the women are regarded as working in the union, it can lead to adverse effects for the domestic sphere whereas men are heads party who has less power in the relationship, of households and are the breadwinners. generally the wife. The role of the women as the housewife Examples of rights-based laws from various does not prevent her from getting rights countries regarding financial issues include: over the assets/properties obtained by the husband. Therefore, if divorce takes • Malaysia: The court may order place, the wife is entitled to half of the the division of harta sepencarian matrimonial assets/properties. (matrimonial assets) acquired through 38 Musawah for Equality in the Family

3.3.5 Inheritance they need to provide for the family; men need to provide for the family because they Inheritance is frequently cited by States have greater inheritance rights. parties to CEDAW as one area of law that cannot be changed because it is Many States parties argue that the based on Islamic law or Shari‘ah (e.g., inheritance laws are stipulated in the Qur’an, Egypt,438 Libya,439 Syria440). For example, and thus cannot be changed or reformed. Egypt stated that Islamic law regarding However, the traditional Muslim rules of inheritance is a ‘settled matter’.441 Several inheritance, though derived from the basic States parties explicitly note that their structure set out in the Qur’an, were then reservations to CEDAW relate to inheritance elaborated and systematised by the various laws (e.g., Bahrain,442 Libya,443 Gambia,444 schools of law through jurisprudential Singapore445). For example, Libya stated methods and interpretations. Many modern that its reservations ‘applied only to Muslim nation-states have adapted these inheritance, on which there were clear and rules from one of the major Sunni or Shi‘ite incontrovertible provisions in the sharia’.446 schools of law, have combined rules from two or more different schools, or have Inheritance rights are crucial for Muslim created modern inheritance laws based women because distribution and control loosely on traditional jurisprudence but of property and assets significantly affect suited for modern realities. Because human their ability to enjoy stable and fulfilling interpretations have played such a key role lives and to exercise other rights. Without in shaping both the traditional inheritance assets derived from inheritance, women are rules and the modern codifications of disadvantaged, cannot lead independent inheritance laws, the standard articulation lives, and cannot even ensure that they of these rules cannot be considered divinely and their families can support themselves. revealed Shari‘ah, but rather man-made Because inheritance distribution is closely fiqh. tied up with many other provisions in Muslim family laws, the rules must be conceived Defenders of the traditional inheritance rules from a just and equitable perspective in often state that the rules are much less order to ensure there is fairness and justice discriminatory than those of the pre-Islamic in other aspects of family life. era. It is true that revelations relating to In current inheritance laws in many inheritance improved the status of women, countries, which are based on traditional and that the Islamic position on inheritance inheritance rules developed by classical was the most progressive and comprehensive Muslim jurists, the provisions are unequal in the world for hundreds of years. However, on the basis of gender. Under one aspect the trajectory of reform begun during the of the traditional inheritance rules, sons time of the Prophet has not continued, and receive double the share of inheritance these rules have not evolved over time. In of daughters. The underlying assumption addition, a number of aspects of the Sunni and rationale for such provisions is that rules (e.g., the primacy of agnatic heirs) are men have the duty and responsibility of actually derived from pre-Islamic inheritance providing for the family. For instance, a rules, not the revelations as laid out in the Bahraini delegate stated that even if a Qur’an. These have not been reformed, just brother and sister divided their inheritance incorporated into the man-made system from their father equally, the brother would that was formalised by the classical jurists still be financially responsible for supporting one thousand years ago based on the needs, his sister. The delegate reasoned that the customs, and expectations of the society in person who was obliged to provide support which they lived. should have greater financial resources at But the world has changed dramatically, his disposal, so the law was in fact providing and the inheritance laws must be reformed for the fair treatment of men and women.447 to continue the trajectory of progressive This creates a cyclical argument, however: reform that began in the time of the Prophet men have greater inheritance rights because and meet the needs of modern society. CEDAW and Muslim Family Laws: In Search of Common Ground 39

In terms of universal human rights standards, for their wives, sisters, and children, in States parties to the CEDAW Convention reality women today often contribute are responsible for ensuring that men and to family expenses and support their women enjoy equal inheritance rights in husbands and children, and even extended law and that women are able to enjoy these family members. With an increase in the rights in fact — that they actually receive percentage of women who are educated, the property they have inherited, that they earning more, and fulfilling the role of are not compelled to give up their rights by head of household, women are increasingly other members of their families, etc. The contributing to or providing for all of the CEDAW Committee commented extensively family expenses. These changing norms on inheritance in General Recommendation also mean that the arguments about men number 21, addressing the fact that women supporting their families, and thus being often hold responsibility to support their entitled to larger shares of inheritance than families.448 A number of other international their sisters or other female relatives, hold human rights bodies also address the issue little weight in the modern era. of inheritance, such as the Human Rights Ulama and the defenders of traditional Committee in General Comment number inheritance rules often advise families that 28,449 the Committee on Economic, Social they can use gifts during their lifetime and Cultural Rights in General Comment as more fair and equal ways to distribute Number 16,450 and the Beijing Platform for property. This indicates that these religious Action.451 leaders believe that the rules of inheritance In terms of the lived realities of women and are not fair and equal for sons and men, family structures in modern times have daughters. It is inconceivable that religious vastly changed. Whereas hundreds of years scholars will go to great lengths and advise ago, extended families spent their lives in others to do the same to circumvent the close proximity and women might have traditional rules, yet those rules remain relied on male heirs to support them, the unchanged. Many governments also allow rise of the nuclear family and decline of close heirs to change the inheritance rules to suit relations with extended family networks their own circumstances, provided that all means that extended families can no longer heirs agree. Families thus circumvent the serve as reliable support mechanisms. In rules by reaching agreement that all the addition, the idea that male family members assets should be divided equally between will fulfil their responsibilities to take care brothers and sisters or all of it should go to of women is only theoretical. This idea the mother, or more should go to the sister has no grounding in reality, since the men who sacrificed a career to take care of an often do not support those who are given ageing parent. lesser shares of inheritance and there is no Such diverse practices to ensure that accountability in laws or in practice to ensure justice is done in the division of inheritance that the men fulfil their responsibilities. demonstrate a need to reform the traditional While men are technically obligated under rules to make them consistent with Islamic traditional Muslim law concepts to provide legal, religious and ethical sensibilities. 40 Musawah for Equality in the Family CEDAW and Muslim Family Laws: In Search of Common Ground 41

4. Conclusion and Recommendations

The Musawah CEDAW project was designed • Promote human rights standards to provide an understanding of how Muslim as intrinsic to Islamic teachings, countries and countries with signification national guarantees of equality Muslim minorities engage with the CEDAW and non-discrimination, and lived process and how the CEDAW Committee realities of men and women today. addresses issues of Muslim family laws and • Encourage states parties to practices. The research revealed a number incorporate and reflect international of trends in how States parties justify their human rights norms and standards non-implementation of CEDAW provisions namely CEDAW’s notion of equality with regard to family issues and how the and non-discrimination in their Committee approaches the topic. Many of the programmes, policies, and laws. This State party justifications rely on the simplistic includes ensuring the necessary enabling excuse that the laws and practices are based environment for the promotion of an on ‘Shari‘ah’ and are therefore immutable, or empowering notion of women’s role in that customs, traditions, and culture prevent and contribution to society, in line with any immediate change. article 5 of the CEDAW Convention. This The Musawah Framework for Action provides also includes encouraging States parties to withdraw reservations, within a fixed a more holistic way of viewing equality timeline, that go against the object and within the family by integrating Islamic purpose of the CEDAW Convention such teachings, universal human rights, national as article 16 on marriage and family constitutional guarantees of equality and relations. non-discrimination, and the lived realities of women and men in a dynamic and evolving • Recognise that resistance to reform process. The second half of this report of Muslim family laws often stems presents an overview of how the Musawah from reasons beyond ostensible Framework can be applied in the context of religious grounds, such as patriarchy CEDAW in response to general government disguised as religion or political justifications for non-compliance and specific pressure within a country. Culture family law issues. and religion are plural and contested. Therefore the obstacles are not ‘culture’ In addition to these responses to States or ‘religion’ per se, but perspectives that parties’ justifications and key issues, Musawah privilege particular interpretations based proposes a number of recommendations for on the political interests and power- the CEDAW Committee to promote stronger, relations of the moment. more in-depth engagement and dialogue in search of common ground between Muslim • Recognise and examine the links family laws and CEDAW on the basis of between discriminatory family laws equality and justice: and violence against women (VAW) and expand the violence against • Emphasise that family laws that women discourse to include family perpetuate inequality in the family law reform. International standards on cannot be justified on religious VAW are now well-developed and are a grounds. Highlight that the laws regular focus of recommendations by the themselves are not divine because they Treaty Bodies and special mechanisms. In are based on human interpretations comparison, the standards on family law and codifications of religious texts, and are relatively under-developed, and as an that the laws can and must comply with issue comparatively less visible within the religious and universal human rights international human rights system. Ending standards of equality and justice. VAW and discrimination within the family 42 Musawah for Equality in the Family

would both be advanced if the links between • Incorporate procedural changes to these two areas were made explicit. If prioritise issues of Muslim family law women suffer inequality in the family due during the cEDAW review process, to discriminatory family laws, their likely including: exposure to domestic violence is greater. - Where family law issues have been For instance, forced and early marriage are identified as a priority in previous forms of VAW; family laws that confirm a reviews or by NGOs, address these husband or father’s right to control females issues earlier in the constructive dialogue in the family can restrict women’s mobility to ensure sufficient time for thorough and economic autonomy and thus their questions and answers. Alternatively, ability to leave violent homes. ensure that an adequate block of time • Encourage open and inclusive public is reserved for these priority issues at debate with states parties, within the end of the constructive dialogue Muslim societies, and within the day to enable article 16 to be dealt with international human rights system comprehensively; regarding diversity of opinion and interpretations of religious laws and - When chairing constructive dialogue principles relating to family laws with States parties, ensure that and practices. In furtherance of this, to CEDAW experts’ questions are directly encourage States to provide for the full answered and that the limited time participation of historically marginalised available is used as efficiently as and otherwise silenced voices, including possible; those of women. - When family law issues are identified • Encourage the international human as priority areas for follow-up, rights community, including states provide the State party with specific parties, Treaty Body experts, community information and directions on how leaders and members of civil society to address the issues and facilitate to establish precedents and space for contact with outside resources who a nuanced understanding of culture, can provide suggestions on how to within a more expansive understanding promote equality in those laws; of universal human rights. - Be specific in lists of issues, • Recognise and support the women constructive dialogues, and Concluding and men who are engaging in Observations on how to address processes of reform of family laws discriminatory Muslim family laws and and protection of existing rights in practices, why it is necessary to do so, ways that take into account religious and provide examples, best practices, values and universal human rights or resources to aid the States parties and that move the family towards in their implementation of the relationships of equality, justice, recommendation. dignity and mutual respect. Musawah would like to thank the Committee • Recognise and respect the importance for its interest in discussing these issues and of international human rights standards would like to offer to provide more input and to Muslim women, because such detailed information about Muslim marriage standards guarantee women a voice in laws and practices at the Committee’s defining their culture. request. CEDAW and Muslim Family Laws: In Search of Common Ground 43

ANNEXES Annex 1: Glossary of Key Terms fasakh: The dissolution of a marriage for cause. ikhtilaf: Diversity in opinion, including in divergent legal rulings fatwa: The considered legal opinion of a mufti. Essentially fatwa is advice which is not legally istihsan: (lit. to regard something ‘good’, binding. Often, fatwa means citation from an approval, consent) A method of legal reasoning authoritative legal text. Political use of fatwa in in which a discretionary opinion is taken in modern times has given it a sense of religious breach of strict analogy. It is often attributed call or edict. to the Hanafi school. The Hanafis describe itas a method of qiyas, when a jurist prefers one fiqh: (lit. understanding, knowledge) The science analogical conclusion to the other in view of the of understanding Shari‘ah; also used to refer common good. to the huge amount of literature produced by Muslim jurists. For further details, see discussion istislah: A method of taking public interest into in section 3.1 in this report. account, which is attributed to the Maliki school. The principle is also called maslaha, common hadanah: Physical care and custody good, and public interest. Hadith: Hadith is distinguished from Sunnah, khul‘: Divorce by redemption, generally through which means normative practice. A hadith is payment or compensation to the husband, a report about what Prophet Muhammad said initiated by the wife. about something, practised or approved, or did not disapprove a certain thing. A science mazhab/madhhab: A particular ‘school’ of of hadith criticism was developed to examine religious law or thought. In the second and third the normative value of a hadith and about the century, groups of jurists appeared in different reliability of a hadith. A hadith report consists Islamic cities, which later came to be known as of two parts; first gives a list of narrators of the madhhabs or schools of law. Out of more than hadith and the second part the text. The jurists nineteen, eight schools have survived: Hanafi, and the collectors of hadith differed in their Hanbali, Maliki, Shafi’i, Ja’afari, Zaydi, Ibadi and criteria about the normativity of a hadith. Zahiri. ’iddah: (lit. counting) Waiting period of about mahr: Dower, or the goods and/or cash due from three menstrual cycles that a divorced woman the groom to the bride as part of the marriage must observe or 4 months 10 days that a contract. It may be given at the time of the widowed woman must observe. marriage ceremony, or promised to be paid at a later date or to be paid upon divorce or the ijbar: The power to compel an unmarried woman death of the husband, or divided into prompt and (of any age) to marry someone of equal status, deferred portions. as recognised by certain schools of law; the power usually resides in the father or paternal maqasid al-Shari‘ah: The basic objectives of grandfather. Shari‘ah; the five main objectives are considered to be life, faith, reason, property, family. Others ijtihad: (lit. effort, endeavour, diligence) mentioned include justice, human dignity, and Independent reasoning to arrive at a legal economic development. This doctrine stressed principle. Ijtihad is an essential process of legal that the primary objective of the Shari‘ah reasoning, responsible for the growth of Islamic is human welfare. The fourteenth century law. After the establishment of the various Spanish Maliki jurist, Abu Ishaq al-Shatibi, who schools of law, the Sunnis understand ijtihad expounded this doctrine has been very popular in as an opposite of taqlid. Since no new schools modern Islamic legal thought. appeared after the third century, it was wrongly assumed that the door of ijtihad was closed. maslahah: (lit. matter, affair, benefit, interest) The necessary qualifications for the exercise Public interest. Maslahah is the basic principle of ijtihad are: knowledge of the sources, legal of Maliki method of istislah. Fourteenth-century methods, and scholarly integrity. The person who jurist Abu Ishaq al-Shatibi defined it as the is qualified to exercise ijtihad is called mujtahid. primary objective of Shari‘ah. According to him, The Shi’a, on the other hand do not regard the maslahah relates to the five basic needs that the door of ijtihad closed, but they also require the law aims to protect: life, faith, reason, property, lay person to follow a mujtahid. family. 44 Musawah for Equality in the Family

mata‘a: Compensatory payment by the husband Shari‘ah is not restricted to positive law per se to the wife, paid on divorce through talaq or but includes moral and ethical values and the where the ‘fault’ lies with the husband. jurisprudential process itself. mubara’at: Divorce by mutual consent Sunnah: (lit., the way or course or conduct of life): The example of the Prophet embodied in mufti: A specialist in religious law who is his statement, actions and those matters that he qualified to give an authoritative religious opinion silently approved or disapproved as reported in (fatwa). hadith literature. Sunnah is acknowledged as a nafaqah: Maintenance of wife during marriage, primary source of Islamic law after the Qur’an. and, if she is divorced, throughout the ’iddah talaq-i-tafwid: A delegated right of divorce period, including shelter, food and clothing. exercised by the wife. nikah: Marriage takhayyur: The process of selection (from a nushuz: Disruption of marital harmony by either range of juristic opinions). spouse talaq: Repudiation of marriage by the husband. qadi/kadi: An Islamic judge. A qadi is ta’liq: Divorce for breach of condition in marriage distinguished from a mufti, the former being a contract or any subsequent written agreement legal authority who is appointed by the state and between the husband and wife. thus represents the state. The ruling of a qadi is binding for the parties and is enforceable; taqlid: (lit. imitation, copying, custom) Taqlid as the mufti only gives an advice, which is not a doctrine requires a person to follow a particular enforceable in a court of law. school of law. It was a legal device to systematise the schools of law and to establishing their qiyas: (lit. measurement, comparison) Analogical authority. reasoning in Islamic law that is constructed on the pattern of formal logic: premises and conclusion. ulama: Scholars Major premise is the injunction from the Usul, i.e. ummah: Community of believers. the Qur’an, Sunnah and ijma’, the minor premise is the case in question, reconstructed as minor ‘urf: (lit. beneficence, kindness) Custom. premise, namely to contain the middle term Local customs play a very important role in the include in the major premise. The conclusion is understanding and growth of Islamic law. ‘Urf the hukum, the method of deduction is called and Ada often interchangeably refer to customs, qiyas. local and common, and social practices. Shari‘ah: (lit. water source, the way, the path) wali: Guardian (for marriage); regarded by The path or way given by God to human beings, some schools of law as the father or paternal the path by which human beings search God’s grandfather who has authority to contract Will. Commonly misinterpreted as ‘Islamic law’, marriage on behalf of the bride. Musawah Research Project on CEDAW January 2011 45 World the in th e Musl im customs i n and , the minimum age is 18 for both males and females. A judge may , the minimum age is 18 for both males and females. A judge may laws family, Moudawana R ights-Based L aws in the Muslim World* Women, Rights: Our : Article 22 of the Family Code stipulates that women and men have the same rights and duties in and rights same the have Code stipulates that women and men : Article 22 of the Family Knowing : In June 2007 the Sierra Leone Parliament passed three ‘Gender Acts’ which benefit women. When fully fully When women. benefit which Acts’ passed three ‘Gender Leone Parliament : In June 2007 the Sierra : Under the Child Marriage Restraint Act (1929, amended in 1984), the minimum age is 18 for females and 21 21 and for females is 18 age minimum the 1984), Act (1929, amended in : Under the Child Marriage Restraint : The Family Law Code envisages family relations based on mutuality and equality, with mutual support and support and with mutual equality, and mutuality family relations based on Code envisages Law : The Family : The Moudawana specifies the ‘mutual rights and duties between spouses’, including both the wife and the including both the wife and spouses’, specifies the ‘mutual rights and duties between : The Moudawana : Under the 2004 revision of : The minimum age of marriage is 19 for both males and females after the February 2005 reform. The judge can can The judge reform. 2005 February the after : The minimum age of marriage is 19 for both males and females : Under the constitution, the family is based on equality between spouses. spouses. between : Under the constitution, family is based on equality Under for females. to 18 15 from raised been : Under the 2001 amended Civil Code, minimum age has K yrgyz R epublic marriage, and spouses should care for each other and develop their own abilities. marriage, and spouses should care for each other develop Morocco and education the children’s and affairs household of managing and protecting husband assuming the responsibility consultation on decisions. T urkey rights. of their members family by of all family members and the unhindered enjoyment responsibility Algeria on the grounds of benefit or necessity. an exception grant Bangladesh are not permitted. for males; exceptions Morocco enquiry. conducted a social having or after expertise of medical to the minimum age with assistance an exception grant S ierra L eone 18. at age marriage the minimum will set Act of Customary Marriage and Divorce implemented, the Registration T urkey permission. with the court’s to 16 circumstances, the minimum age can be lowered exceptional U zbekistan

, London: Living Women Under Muslim Laws (2003), available at www.wluml.org/sites/wluml. World This material is compiled primarily from org/files/import/english/pubs/pdf/knowing%20our%20rights/kor_2006_en.pdf Muslim F amily L aw Issue Equality of spouses Minimum age of marriage Ann e x 2: Tab l of Rig hts- ba s d Law * 46 Table of Rights-based Laws in the Muslim World cannot , and ijbar (courts may (courts may Egypt ijbar , Jordan , S yria , Mst. Humera Mehmood v The State S audi Arabia cannot compel his daughter to marry a man wali , which is common throughout the Muslim world, women can , which is common throughout the Muslim world, women can : Polygamy is prohibited. : Polygamy is not required. wali is not required for Hanafi women who have reached puberty. reached puberty. is not required for Hanafi women who have , a woman gains the capacity to contract her own marriage upon reaching the age the age reaching her own marriage upon to contract , a woman gains the capacity : A wali R ights-Based L aws in the Muslim World* : A to compel a woman to marry; he may not give her in marriage without her consent. consent. without her her in marriage not give to compel a woman marry; he may wali Moudawana : In April 2005, the top religious authorities banned the practice of forcing women to marry against their will, against to marry women of forcing : In April 2005, the top religious authorities banned practice , PLD 1999 Lahore 494). : Case law provides that marriage without the consent of the spouses is void ( is void spouses that marriage without the consent of provides : Case law allow for such stipulations in the marriage contract. allow for such stipulations in the marriage contract. : Couples may not be coerced into marriage under any circumstances. circumstances. not be coerced into marriage under any : Couples may : Under the revised : In May 2009 a new Family Law that applies only to Sunnis was enacted that allows women to prohibit their to prohibit that allows women enacted was that applies only to Sunnis Law 2009 a new Family : In May : For Maliki communities (the majority of Nigerian Muslims), a biological father has the power of the power has father a biological of Nigerian Muslims), Maliki communities (the majority : For : There is no marriage without the consent of both spouses. A marriage contracted without such consent is consent without such contracted A marriage : There is no marriage without the consent of both spouses. of a The consent proxies. or appoint themselves their marriage the right to contract : Both husband and wife have to able are never (‘You 4:129 of Surah based on the understanding prohibited under the 1956 law was : Polygamy : It is forbidden for the , including where the woman earns some money herself. is not required, provided that the man and woman are of the legal age of consent. of consent. age that the man and woman are of legal is not required, provided countries where marriage contracts are negotiated S audi Arabia K yrgyz R epublic, T urkey, U zbekistan N igeria Bangladesh, Pakistan, S ri L anka refer to Bulugul Marami, Fighus Sunnah Vol. II, p.260). However, the the However, II, p.260). Fighus Sunnah Vol. refer to Bulugul Marami, is clear that law Case problems. or reproductive suffering from contagious diseases (such as leprosy), insanity, Algeria Morocco of possibility the that overrule of circumstances a variety accept be enforced for adult women, and the courts generally ijbar Pakistan against to marry a woman forces said that whoever of the shari‘ah. The clerics the provisions stating that it contravenes ‘un-Islamic’. and injustice’ is ‘a major into marriage women her will is disobeying God and His Prophet, that coercing T unisia declared null and void. Morocco relatives. of her or one father her power to this her marriage herself or delegate contract She may of majority. T unisia wali Bahrain husbands from taking second wives. K yrgyz R epublic, T ajikistan, urkey, U zbekistan It equally. wives multiple treat can husband no that desire …’) ardent if it is your be fair and just as between women, even of or a fine of imprisonment a year liable to marriage a polygamous is a criminal offence, rendering man who contracts the same. liable to marriage a polygamous enters Dinars or both and a woman who knowingly 240,000 Tunisian In of the this term breaches husband the If wife. another that the husband cannot take stipulate in the marriage contract such as Countries the woman has right to divorce. marriage contract, T unisia and others L ebanon

wali F amily L aw Issue C onsent to marriage (Is a marriage valid (Is a marriage valid without the woman’s consent?) Women’s capacity for marriage (Is consent of a required?) Polygamy Monogamy/ Musawah Research Project on CEDAW January 2011 47 talaq- and divorce for cause, and there are and divorce khul (matrimonial assets) acquired through the parties’ joint harta sepencarian R ights-Based L aws in the Muslim World* : the standard marriage contract form includes provision for delegated right of divorce ( right of divorce for delegated form includes provision : the standard marriage contract ). If granted this right, the wife can initiate divorce without grounds and without going to court, while without going to court, and without grounds this right, the wife can initiate divorce ). If granted The Shariah Courts may take into account a wide variety of factors, including the wife’s contributions to the contributions to the including the wife’s of factors, into account a wide variety take The Shariah Courts may : All divorces must go through the court. For Muslims, a husband must provide the religious court with a written with a written court religious the provide must Muslims, a husband must go through the court. For : All divorces The court may order the division of The court may : Dissolution of marriage is a prerogative that may be exercised by both husband and wife, based on legal on wife, based and both husband by be exercised that may : Dissolution of marriage is a prerogative The revisions to the Civil Code stipulate that equal division of property and assets acquired during the marriage is during the marriage acquired assets and The revisions to the Civil Code stipulate that equal division of property : Divorce shall only take place in court. There are equal grounds for divorce for husband and wife, including mutual mutual wife, including and for husband for divorce place in court. There are equal grounds shall only take : Divorce : Divorce at ‘the will of the husband’ can be established only through the court. the court. through at ‘the will of the husband’ can be established only : Divorce : All divorces must go through the court. The Registrar can only register the divorce after permission has been issued been has permission after divorce the register can only must go through the court. The Registrar : All divorces Bangladesh and Pakistan Algeria e-tafwid/’esma financial rights. retaining relevant Indonesia Reconciliation wives. and husbands both to available are The six grounds for divorce notification of his intention to divorce. is not divorce Revocable to witness the divorce. the parties failing which the court calls meetings are called separately, recognised. Iran settled. been from the court and after related financial matters have Morocco have must children the wife and and permission, requires judicial Repudiation conditions established for each party. has A wife valid. are not of repudiation pronouncements rights before it is authorised. Irregular all of their vested received or ‘esma), access to assigned repudiation sometimes known as talaq-e-tafweed consent). mutual differences, wife (irreconcilable and both husband be pursued by that may forms of divorce several T unisia the the will of or ‘at in the law), laid out as and responsibilities consent, on the grounds of harm (the failure to fulfil rights recognised. talaq is not Unilateral husband or at the request of wife’. Malaysia: the owed by debts the assets, acquiring towards party each regard to the extent of contributions made by efforts, having may Court the of a party, efforts the sole by acquired assets parties and the needs of minor children to marriage. For for the or caring home the contributions to looking after regard to the other party’s order division of the assets having though a woman Even proportion. a greater shall receive whose efforts they were acquired by though the party family, as considered mother are wife and as her role marital assets, contributed financially to the acquisition of not have may of assets. share of the at least a third indirect contributions and she is usually granted S ingapore: decrees, enforce may lower courts The children. raising for domestic labour and primary responsibility household like the of contribution in the acquisition financial direct no of the assets. Where a wife has made facilitating actual recovery contributions, financial made has she sale. Where of its matrimonial home, she is entitled to 30-50% of the net proceeds she is entitled to a share that higher than her contribution. T urkey: law. new regime for marriages solemnised under the the default property

F amily L aw Issue D ivorce Division of Matrimonial Assets 48 Table of Rights-based Laws in the Muslim World R ights-Based L aws in the Muslim World* Custody and guardianship can be given to either parent, with the best interests of the child as as child of the interests the best to either parent, with Custody and guardianship can be given Bangladesh, C entral Asian R epublics, Gambia, India, Pakistan, S enegal, S ri L anka, Both parents have equal rights in custody and guardianship during marriage. Upon divorce, the court decides court the divorce, Upon marriage. equal rights in custody and guardianship during Both parents have In the event of separation or divorce, the rules regarding custody and guardianship do not discriminate between discriminate between do not guardianship and the rules regarding custody or divorce, of separation In the event decide custody through the courts on the basis of the best interests of the child. This has led to an expansion of expansion led to an This has child. of the interests decide custody through the courts on basis of best C entral Asian R epublics: Several countries, e.g. Several laws. of Muslim interpretations mothers’ rights as compared to conservative consideration. the paramount T unisia: guardianship has also she mother, to the is awarded custody on the basis of best interests child. If if mother to the guardianship full award may court The schooling, and management of finances. rights as regards travel, child’s the right to supervise equal an has mother the his duties. Regardless, the father is deceased or unable to exercise affairs. T urkey: the father and mother. T urkey,

F amily L aw Issue C ustody Guardianship Musawah Research Project on CEDAW January 2011 49 2003 20 1 0 None Y ear(s) R eported

article 9 (2) 452 R eservations revoked /modified On 15 July 2009, the Government of On 15 July 2009, the Government Algeria notified the Secretary-General the that it had decided to withdraw in respect to reservation made upon accession.

in gn at

article article 16 nd th e C E D AW on ve nt i [D]eclares that the provisions of [D]eclares that the provisions , concerning the right of women to family relations). , which are incompatible with the provisions of , which are incompatible with the provisions [D]eclares that the provisions of [D]eclares that the provisions [D]eclares that it is prepared to apply the provisions [D]eclares that it is prepared to apply the provisions (including reservations made related to marriage and Declaration made upon signature / ratification accession article 15, paragraph 4 Article 2: of this article on condition that they do not conflict with the Code. of the Algerian Family provisions of concerning the provisions [E]xpress its reservations 9, paragraph 2 Code. The code and the Algerian Family the Algerian Nationality of the nationality code allows a child to take Algerian Nationality the mother only when: – the father is either unknown or stateless; – the child is born in Algeria to an Algerian mother and a forei born in Algeria; father who was a a child born in Algeria to an Algerian mother and – moreover, under not born on Algerian territory may, foreign father who was Code, acquire the nationality article 26 of the Algerian Nationality the Ministry of Justice does not object. of the mother providing Code states that a child is Article 4 1 of the Algerian Family affiliated to its father through legal marriage. Article 43 of th Code states that `the child is affiliated to its father if it born Article 15, paragraph 4: in choose their residence and domicile should not be interpreted of chapter 4 (art. the provisions such a manner as to contradict Code. 37) of the Algerian Family Article 16: concerning equal rights for men and women in all matters relating to marriage, both during marriage and at its dissolution, should Code. of the Algerian Family the provisions not contradict 0 months following the date of separation or death. the 1 0 months following date of separation No reservations No reservations R eservations: 2003 1994 1996 Y ear Ratified C ountry Afghanistan Albania Algeria

2. 3. 1 . N o. Ann e x 3: O I C ountr ie s a 50 OIC Countries and the CEDAW Convention 20 1 0 1998 2007 2009 2008 2005 2000 2005 20 1 0 2000 2009 None None Y ear(s) R eported made (f) and 16 (1) R eservations (a) revoked /modified 13 On 23 July 1997, the Government of On 23 July 1997, the Government Bangladesh notified the Secretary- that it had decided to General relating to the reservation withdraw articles upon accession.

as they conflict with (f) … and (c) family relations). , in so far as it is incompatible with the provisions of , in so far as it is incompatible with the provisions paragraph 2 of Article 9 , in order to ensure its implementation within the law based on Holy Quran and Sunna. based on Holy Quran law (including reservations made related to marriage and Declaration made upon signature / ratification accession No reservations with respect to the following … reservations [M]akes Article 2 of the Islamic Shariah; bounds of the provisions Article 9, paragraph 2; Article 15, paragraph 4; Article 16 the Islamic Shariah... of [D]oes not consider as binding upon itself the provisions articles 2, 13 (a) and 16 (1) Sharia No reservations of the regarding those provisions [E]xpresses its reservations to the Constitution of be contrary that may said Convention the Brunei Darussalam and to the beliefs principles of Islam, to official religion of Brunei Darussalam and, without prejudice expresses its reservations of the said reservations, the generality regarding No reservations No reservations No reservations No reservations R eservations: R eservations: 1995 2002 1984 1992 2006 1987 1994 1995 1994 Y ear Ratified C ountry Azerbaijan Bahrain Bangladesh Benin Brunei Burkina Faso Cameroon Chad Comoros

4. 5. 6. 7. 8. 9. 1 2. 1 0. 11 . N o. Musawah Research Project on CEDAW January 2011 51 20 11 None Y ear(s) R eported R eservations revoked /modified

he . Sharia therefore restricts lay down that the lay concerning the equality of concerning the equality Sharia Sharia provisions whereby women are whereby provisions article 16 Sharia’s family relations). article 2 article 9 (2) (including reservations made related to marriage and Declaration made upon signature / ratification accession [R]eservation to No reservations No reservations Reservations made upon signature and confirmed ratification: to the text of Reservation men and women in all matters relating to marriage family relations during the marriage and upon its dissolution, without prejudice to the Islamic to those of their spouses so as accorded rights equivalent ensure a just balance between them. This is out of respect for the sacrosanct nature of firm religious beliefs which govern not be called in question marital relations in Egypt and which may of and in view of the fact that one most important bases of rights and duties so as to these relations is an equivalency between true equality ensure complementary which guarantees of the the spouses. The provisions fully bridal money to the wife and maintain her husband shall pay whereas to her upon divorce, a payment and shall also make and is not obliged her property the wife retains full rights over The on her keep. to spend anything making it contingent on a judge’s by rights to divorce the wife’s ruling, whereas no such restriction is laid down in the case of t husband. Reservations made upon ratification: General reservation on that [W]illing to comply with the content of this article, provided such compliance does not run counter to the Islamic to women of equal rights with men [C]oncerning the granting of their children, without prejudice with respect to the nationality a child born of marriage the nationality to the acquisition by acquisition of a child’s This is in order to prevent of his father. two nationalities where his parents are of different nationalities, be prejudicial to his future. It is clear that the since this may is the procedure nationality acquisition of his father’s child’s most suitable for the child and that this does not infringe upon between men and women, since it is the principle of equality customary for a woman to agree, upon marrying an alien, that nationality. her children shall be of the father’s 1995 1998 1981 Y ear Ratified C ountry Cote d’Ivoire Djibouti Egypt

1 5. 1 4. 1 3. N o. 52 OIC Countries and the CEDAW Convention 200 1 1989 2005 2005 2007 2009 1994 200 1 2005 1998 2007 2000 2000 2007 Not a Y ear(s) signatory R eported article 15 R eservations revoked /modified of the Convention. The text of of the Convention. On 5 May 2009, the Government 2009, the Government On 5 May of Jordan informed the Secretary- that it had decided to General made upon the reservation withdraw with regard to ratification (4) reads as withdrawn the reservation follows: residence and domicile … a woman’s are with her husband.

article paragraphs 1 and , , relating to the rights arising article 9 , of family relations). according women rights equivalent to the according women rights equivalent of the Convention. The reservation to this The reservation of the Convention. and (g)

Shariah article 16 (including reservations made related to marriage and paragraphs (f) , , nor of Declaration made upon signature / ratification accession No reservations No reservations No reservations No reservations No reservation No reservation Not a signatory shall not mean of and accession to this Convention Approval of the provisions is bound by of Iraq that the Republic 2 2 article shall be without prejudice to the provisions last-mentioned of the Islamic rights of their spouses so as to ensure a just balance between them. Declaration made upon signature and confirmed ratification: the following provisions: Jordan does not consider itself bound by 1. Article 9, paragraph 2; 2. ... 3. Article 16, paragraph (1) (c) and upon the dissolution of marriage with regard to maintenance compensation; 4. Article 16, paragraph (1) (d) and (g). R eservations: 1983 1994 1982 1985 1980 1984 1986 1992 Y ear Not a Ratified signatory C ountry Gabon Gambia Guinea Guinea Bissau Guyana Indonesia Iran Iraq Jordan

1 7. 2 1 . 18. 19. 20. 22. 23. 24. 1 6. N o. Musawah Research Project on CEDAW January 2011 53 200 1 1994 2009 2007 2004 1999 2004 2008 2005 2008 Y ear(s) R eported . , made upon accession R eservations revoked /modified Shariah On 5 July 1995, the Government of On 5 July 1995, the Government Arab Libyan the Socialist People’s notified the Secretary- Republic of the “new formulation its General which to the Convention, reservation replaces the formulation contained in the instrument of accession” which read as follows: [Accession] is subject that such reservation to the general accession cannot conflict with the laws from the on personal status derived Islamic The Government of Kuwait informed of Kuwait The Government a by the Secretary-General, on 9 December notification received the 2005, of its decision to withdraw in respect of following reservation article 7 (a) to the Convention…

relating article 16 of the Shariah , inasmuch as the , and . (2)

Shariah article 7 (a) , Islam being the official religion article 9 inasmuch as it conflicts with the , of the Convention, inasmuch as it runs , of the Convention, (regarding the right to choose a family family relations). paragraph 16 (c) and (d) (g) Islamic Shariah and article 16 (f) paragraph 2 of the Convention shall be implemented with due of the Convention , (including reservations made related to marriage and Declaration made upon signature / ratification accession No reservations regarding [E]nters a reservation Kuwaiti conflicts with the contained in that paragraph provision and Act, under which the right to be eligible for election Electoral is restricted to males. to vote Article 9, paragraph 2 in contained its right not to implement the provision [R]eserves article 9 a Act, which stipulates that Nationality counter to the Kuwaiti that of his father. shall be determined by nationality child’s Article 16 (f) the provision [D]eclares that it does not consider itself bound by contained in of the provisions of the State. No reservations regarding [E]nters reservations (1) (c) (d) (f) name). regard for the peremptory norms of Islamic to determination of the inheritance portions estate a deceased person, whether female or male. The implementation of of the rights shall be without prejudice to any Convention the Islamic to women by guaranteed R eservations: R eservations: R eservation: Article 2 1998 1994 1997 1997 1989 Y ear Ratified C ountry Kazakhstan Kuwait Kyrgyzstan Lebanon Libya

25. 26. 27. 28. 29. N o. 54 OIC Countries and the CEDAW Convention 2006 Y ear(s) R eported articles

of the shall not affect of the Convention, of the Convention, of the Convention, the of the Convention, paragraph 2 . , article 2(f), 9(1), 16(b), of the Convention. R eservations article 7 (b) article 5 (a) article 9 article 7 (b) article 16.1 (a) and paragraph revoked /modified and 16 (2) law on the division of inherited law , Court Judges, and the Imam which is 7(b) , Syariah , the Government of Malaysia declares that under of Malaysia , the Government 16(d), 16(e) and 16(h) On 6 February 1998, the Government of Malaysia of Malaysia 1998, the Government On 6 February of a partial notified the Secretary-General as follows: withdrawal its withdraws of Malaysia The Government in respect of reservation of Malaysia The same date, the Government that it had decided notified the Secretary-General made upon accession as its reservation to modify follows: With respect to the Mufti appointment to certain public offices like Syariah of the Islamic in accordance with the provisions Shariah law. With respect to the age of Malaysia and the laws law the Syariah limit for marriage women is sixteen and men eighteen. On 19 July notifies 2010, the the Government “withdraws Secretary of its reservations Malaysia General in respect of 5(a) that it further Government of Malaysia declares that the provision declares that the provision of Malaysia Government is subject to the property. With respect to declares that the of Malaysia the Government application of said declares of Malaysia the Government Convention, will be reviewed if the that its reservation law. amends the relevant Government With respect to 2 of the aforesaid (g) , (f) , Malaysia interprets the , Malaysia , 16(1)(a) article 11 , 9(2) / accession (including reservations made related to marriage and family relations). Declaration made upon signature / ratification Convention. (as of 20 1 0) Convention. In relation to of this article as a reference to the provisions prohibition of discrimination on the basis equality between men and women only. [A]ccession is subject to the understanding that do not conflict of the Convention the provisions and of the Islamic Sharia’ law with the provisions With regard Constitution of Malaysia. the Federal does of Malaysia the Government further, thereto, of the provisions not consider itself bound by articles 1995 Y ear Ratified C ountry Malaysia

30. N o. Musawah Research Project on CEDAW January 2011 55 2006 200 1 2007 1988 2006 2007 Y ear(s) Y ear(s) R eported R eported articles

of the shall not affect of the Convention, of the Convention, of the Convention, the of the Convention, paragraph 2 . . R eservations , article 2(f), 9(1), 16(b), of the Convention. revoked /modified R eservations article 7 (b) article 5 (a) article 9 article 7 (b) article 16.1 (a) and paragraph revoked /modified On 29 January 1999, the Government On 29 January 1999, the Government notified the Secretary- of Maldives of a modification its General made upon accession… reservation [W]ill comply with the provisions those except of the Convention, consider may which the Government to the principles of contradictory the Islamic Sharia upon which is of the Maldives and traditions laws founded. of Maldives Furthermore, the Republic any does not see itself bound by of the Convention provisions which obliges to change its manner. in any Constitution and laws On 31 March 2010, the Government notified of Maldives of the Republic of its decision the Secretary-General regarding its reservation to withdraw article 7(a) and 16 (2) law on the division of inherited law ,

Court Judges, and the Imam which is 7(b) , Syariah , the Government of Malaysia declares that under of Malaysia , the Government 16(d), 16(e) and 16(h) On 6 February 1998, the Government of Malaysia of Malaysia 1998, the Government On 6 February of a partial notified the Secretary-General as follows: withdrawal its withdraws of Malaysia The Government in respect of reservation of Malaysia The same date, the Government that it had decided notified the Secretary-General made upon accession as its reservation to modify follows: With respect to the Mufti appointment to certain public offices like Syariah of the Islamic in accordance with the provisions Shariah law. With respect to the age of Malaysia and the laws law the Syariah limit for marriage women is sixteen and men eighteen. On 19 July notifies 2010, the the Government “withdraws Secretary of its reservations Malaysia General in respect of 5(a) that it further Government of Malaysia declares that the provision declares that the provision of Malaysia Government is subject to the property. With respect to declares that the of Malaysia the Government application of said declares of Malaysia the Government Convention, will be reviewed if the that its reservation law. amends the relevant Government With respect to 2 of the Convention, of the Convention, of the Convention of the Convention of the aforesaid article 7(a) (g) article 16 , (f) , Malaysia interprets the , Malaysia , family relations). 16(1)(a) article 11 , 9(2) / accession (including reservations made (including reservations made related to marriage and related to marriage and family relations). Declaration made upon signature / ratification accession Declaration made upon signature / ratification [E]xpresses its reservation to [E]xpresses its reservation contained in the said paragraph to the extent that provision the of of article 34 the Constitution conflicts with the provision 20 1 0) ... (withdrawn of Maldives Republic its right to apply [R]eserves of men and women in all matters concerning the equality relating to marriage and family relations without prejudice all marital of the Islamic Sharia, which govern the provisions the and family relations of the 1 00 percent Muslim population Maldives. No reservations one of it in each and every and do approve approved [H]ave to Islamic Sharia and are in its parts which are not contrary accordance with our Constitution. R eservations: Convention. (as of 20 1 0) Convention. In relation to of this article as a reference to the provisions prohibition of discrimination on the basis equality between men and women only. [A]ccession is subject to the understanding that do not conflict of the Convention the provisions and of the Islamic Sharia’ law with the provisions With regard Constitution of Malaysia. the Federal does of Malaysia the Government further, thereto, of the provisions not consider itself bound by articles 200 1 1993 1985 Y ear 1995 Y ear Ratified Ratified C ountry C ountry Maldives Mali Mauritania Malaysia

32. 33. 3 1 . 30. N o. N o. 56 OIC Countries and the CEDAW Convention 1997 2003 2008 Y ear(s) R eported revoked /modified R eservations [D]eclares that it can only be bound by the provisions of this of provisions the by bound be only can it that [D]eclares [M]akes a reservation with regard to this article in view of a reservation [M]akes [M]akes a reservation with regard to the provisions of this article, article, of this with regard to the provisions a reservation [M]akes [E]xpress its readiness to apply the provisions of this article provided that: provided of this article [E]xpress its readiness to apply the provisions reservations made related to marriage and family relations). Declaration made upon signature / ratification accessio n (including [A]rticle 2: of rules the that regulate - They are without prejudice to the constitutional requirement succession to the throne of Kingdom Morocco; noted that It should be of the Islamic Shariah. They do not conflict with the provisions - according Status Personal contained in the Moroccan Code of certain of the provisions or be infringed upon not women rights that differ from the conferred on men may among which strives, primarily from the Islamic Shariah, abrogated because they derive the preserve to in order a balance between the spouses to strike its other objectives, coherence of family life. paragraph 4: [A]rticle 15, residence their choose in particular those relating to the right of women paragraph, of the 36 and 34 articles and domicile, to the extent that they are not incompatible with Status. Moroccan Code of Personal R eservations: [A]rticle 9, paragraph 2 of nationality the bear permits a child to of Moroccan Nationality the fact that Law of of place regardless its mother only in the cases where it is born to an unknown father, guarantee to does so in order and it when born in Morocco, birth, or to a stateless father, of a Moroccan Morocco a child born in Further, to each child its right a nationality. declaring, within by mother of its acquire the nationality mother and a foreign father may provided nationality, that its desire to acquire of reaching the age majority, two years is in Morocco. residence its customary and regular that, on making such declaration, [A]rticle 16: and of rights in respect of men and women, particularly those relating to the equality is kind of this responsibilities on entry into and at dissolution of marriage. Equality of the to each considered incompatible with the Islamic Shariah, which guarantees complementary and of equilibrium spouses rights and responsibilities within a framework the sacred bond of matrimony. in order to preserve gift upon a nuptial of the Islamic Shariah oblige husband to provide The provisions the to support law by while the wife is not required marriage and to support his family, family. In maintenance. at dissolution of marriage, the husband is obliged to pay Further, during the property her complete freedom of disposition the wife enjoys contrast, husband the husband, the marriage and upon its dissolution without supervision by property. his wife’s no jurisdiction over having by only a woman on these reasons, the Islamic Shariah confers right of divorce For decision of a Shariah judge. D eclarations: 1993 Y ear Ratified C ountry Morocco

34. N o. Musawah Research Project on CEDAW January 2011 57 2007 2007 Y ear(s) R eported R eservations revoked /modified

e , concerning , concerning [E]xpresses [E]xpresses reservations [E]xpresses reservations article 2, paragraphs (d) and would be applied in compliance , of the Convention should be , of the Convention [E]xpresses reservations with regard [E]xpresses reservations [D]eclares that it can be bound by the [D]eclares that it can be bound by family relations). article 5 article 2, paragraphs (d) and (f) paragraph (b) , , particularly those concerning the same rights and (including reservations made related to marriage and article 5 Declaration made upon signature / ratification accession No reservations [D]eclares that the term “family education” which appears in interpreted as referring to public education concerning the family, event, and that in any on Civil and Political with article 17 of the International Covenant Rights. R eservations: of [D]eclares that the provisions (f), article 5, paragraphs (a) and (b), 15, paragraph 4, and article 16, paragraph 1 (c), (e) (g) as they are family relations, cannot be applied immediately, their nature, which, by to existing customs and practices contrary can be modified only with the passage of time and evolution an act of and cannot, therefore, be abolished by of society authority. Article 2, paragraphs (d) and (f) with regard to of patterns of conduct to the modification of social and cultural men and women. Article 15, paragraph 4 particularly those concerning the of this paragraph, provisions the right of women to choose their residence and domicile, only refer only to unmarried women. extent that these provisions Article 16, paragraph 1 (c), (e) and (g) of provisions concerning the above-referenced reservations article 16 responsibilities during marriage and at its dissolution, the sam rights to decide freely and responsibly on the number spacing of their children, and the right to choose a family name. the taking of all appropriate measures to abolish all customs the taking of all appropriate measures to abolish customs which constitute discrimination against women, and practices particularly in respect of succession. Article 5, paragraph (a) D eclaration: 1997 1999 Y ear Ratified C ountry Mozambique Niger

35. 36. N o. 58 OIC Countries and the CEDAW Convention 2007 1998 2004 2008 None Y ear(s) R eported R eservations revoked /modified

(regarding , which provides that States Parties shall Parties States that provides which , , which provides that States Parties shall that States Parties , which provides 4 family relations). subparagraphs (a), (c), and (f) paragraph , regarding the equality of men and women, , regarding the equality 15, (including reservations made related to marriage and Declaration made upon signature / ratification accession The accession by [the] Government of the Islamic Republic of of the Islamic Republic [the] Government The accession by of is subject to the provisions to the [said Convention] Pakistan of Pakistan. the Constitution of Islamic Republic No reservations not in accordance with the of the Convention All provisions of the Islamic Sharia and legislation in force provisions Sultanate of Oman; Article 9, paragraph 2 women equal rights with men respect to the nationality grant of their children; Article law accord to men and women the same rights with regard of persons and the freedom to choose relating to the movement their residence and domicile; Article 16 in particular adoption). D eclaration: R eservations: 1996 1985 2006 Y ear Ratified C ountry Palestinian Palestinian Authority Pakistan Nigeria Oman

39. 40. 37. 38. N o. Musawah Research Project on CEDAW January 2011 59 Y ear(s) R eported R eservations revoked /modified

, as they are inconsistent of the Convention provided that, provided of the Convention , as it is inconsistent with the must not be understood as , in connection with matters of , as it is inconsistent with the provisions , as it is inconsistent with Qatar’s law on law , as it is inconsistent with Qatar’s family relations). article 1 article 5 (a) in connection with the rules of hereditary (including reservations made related to marriage and Declaration made upon signature / ratification accession [A]ccepts the text of and Qatari of Islamic law in accordance with the provisions not of their marital status” is “irrespective legislation, the phrase family relationships outside legitimate intended to encourage in the right to implement Convention marriage. It reserves accordance with this understanding. [D]eclares that the question of modification “patterns” referred to in women to abandon their role as mothers and encouraging undermining the structure of role in child-rearing, thereby family. R eservations: Article 2 (a) as it is inconsistent with the provisions of authority, transmission of article 8 the Constitution. Article 9, paragraph 2 citizenship. Article 15, paragraph 1 as it is inconsistent with the provisions inheritance and testimony, of Islamic law. Article 15, paragraph 4 and established practice. of family law Article 16, paragraph 1 (a) and (c) of Islamic law. with the provisions Article 16, paragraph 1 (f) The State of Qatar and family law. of Islamic law provisions to national legislation is conducive declares that all of its relevant the interest of promoting social solidarity. D eclaration: 2009 Y ear Ratified C ountry Qatar

4 1 . N o. 60 OIC Countries and the CEDAW Convention 2008 1994 2007 2002 2007 2007 2007 2006 Not a Not a Y ear(s) signatory signatory R eported R eservations revoked /modified

, of article paragraph 2 of article 9 article 2; 9, paragraph 2 article 16, paragraph 1 (c), (d), , concerning freedom of movement and , concerning freedom of movement family relations). , concerning the legal effect of betrothal and , concerning equal rights and responsibilities during (including reservations made related to marriage and Declaration made upon signature / ratification accession In case of contradiction between any term of the Convention and and term of the Convention between any In case of contradiction to the Kingdom is not under obligation the norms of Islamic law, terms of the Convention. the contradictory observe [D]oes not consider itself bound by the Convention... No reservations No reservations Not a signatory Not a signatory No reservations to [S]ubject to reservations to her children; nationality of a woman’s concerning the grant article 15, paragraph 4 of residence and domicile; (f) and (g) the marriage and at its dissolution with regard to guardianship, adoption; and maintenance name, family a choose to right 16, paragraph 2 is incompatible the marriage of a child, inasmuch as this provision of the Islamic Shariah... with the provisions No reservations No reservations R eservations: R eservation: 2000 1985 1988 1993 2003 1993 1983 Y ear Not a Not a Ratified signatory signatory C ountry Saudi Arabia Senegal Sierra Leone Sudan Somalia Suriname Syria Tajikistan Togo

42. 43. 44. 45. 46. 47. 48. 49. 50. N o. Musawah Research Project on CEDAW January 2011 61 1995 2002 20 1 0 Y ear(s) R eported R eservations revoked /modified

of the paragraphs (g) [E]xpresses its reservation [E]xpresses its reservation article 16, paragraphs (c), article 9, paragraph 2 In accordance with the provisions In accordance with the provisions , of the Convention on the Elimination , of the Convention family relations). article 9, paragraph 2: article 16, paragraphs (c), (d), (f), (g) and of the Convention and declares that of the Convention of that article must not conflict with the provisions of the of that article must not conflict with the provisions [C]onsiders itself not bound by [C]onsiders itself not bound by (including reservations made related to marriage and article 15, paragraph 4 Declaration made upon signature / ratification accession [D]eclares that it shall not take any organisational or legislative organisational or legislative any [D]eclares that it shall not take with the requirements of this Convention decision in conformity of where such a decision would conflict with the provisions Constitution. chapter I of the Tunisian [A]rticle 15, paragraph 4: dated 23 May of Treaties, on the Law of the Vienna Convention that the requirements emphasizes Government 1969, the Tunisian of and particularly of All forms Discrimination against Women, that part relating to the right of women choose their residence and domicile, must not be interpreted in a manner which conflicts as Status Code on this subject, of the Personal with the provisions set forth in chapters 23 and 6 1 of the Code. R eservation: [C]oncerning in with regard to the provisions of chapter which must not conflict with the provisions Convention, Code. Nationality VI of the Tunisian [C]oncerning (h): (d) and (f) to of family names Status Code concerning the granting Personal through inheritance. children and the acquisition of property D eclaration: and (h) 1985 Y ear Ratified C ountry Tunisia

5 1 . N o. 62 OIC Countries and the CEDAW Convention 2006 1995 2002 20 1 0 Y ear(s) R eported made upon of the article 15, article 9 (1) R eservations revoked /modified . Article 9, paragraph 1 On 20 September 1999, the notified of Turkey Government of a partial the Secretary-General as follows: withdrawal of the Republic “[...] the Government its has decided to withdraw of Turkey made upon [accession reservations on the Elimination to] the Convention of Discrimination Against of All Forms with regard to Women paragraphs 2 and 4, article 16, paragraphs 1 (c), (d), (f) and (g) On 29 January 2008, the Government notified the of Turkey of the Republic that it had decided Secretary-General the following declaration to withdraw in respect to accession: “ is not in conflict with the Convention 1, of article 5, paragraph provisions and article 1 5 7 of the Turkish relating to the on Nationality, Law since the acquisition of citizenship, regulating intent of those provisions through acquisition of citizenship statelessness.” marriage is to prevent

, ….” article 15, paragraphs 2 family relations). (including reservations made related to marriage and Declaration made upon signature / ratification accession and 4, article 16, paragraphs 1 (c), (d), (f) (g) 2008) by (All withdrawn “Reservations of the Government of the Republic of Turkey with with of Turkey of the Republic of the Government “Reservations dealing with family regard to the articles of Convention relations which are not completely compatible with the provisions Civil Code, in particular, of the Turkish No reservations No reservations 1985 1997 1985 Y ear Ratified C ountry Turkey Turkmenistan Uganda

52. 53. 54. N o. Musawah Research Project on CEDAW January 2011 63 20 1 0 200 1 2006 20 1 0 2002 2008 Y ear(s) R eported R eservations revoked /modified

of the articles 2 (f), 9, 15 (2), 16 … family relations). [C]onsidering this paragraph in conflict with the [C]onsidering this paragraph [B]eing of the opinion that this paragraph violates [B]eing of the opinion that this paragraph [W]ill abide by the provisions of this article insofar the provisions [W]ill abide by [C]onsidering the acquisition of nationality an internal [C]onsidering the acquisition of nationality (including reservations made related to marriage and Declaration made upon signature / ratification accession [M]akes reservations to reservations [M]akes as follows: Convention, Article 2 (f) the rules of inheritance established in accordance with thereto and does a reservation precepts of the Shariah, makes thereof. the provisions not consider itself bound by Article 9 and the conditions controls of matter which is governed, a reservation national legislation makes which are established, by the provisions to this article and does not consider itself bound by thereof. Article 15 (2) and testimony precepts of the Shariah regarding legal capacity, to the said a reservation makes the right to conclude contracts, by of the said article and does not consider itself bound paragraph thereof. the provisions Article 16 as they are not in conflict with the principles of the Shariah. The as they are not in conflict with the principles of Shariah. of a dower considers that the payment Emirates United Arab and is an obligation of the husband, and of support after divorce just as the wife has her the husband has right to divorce, and her full rights to property independent financial security or her own expenses her husband’s and is not required to pay right to a woman’s The Shariah makes out of her own property. she conditional on a judicial decision, in case which divorce has been harmed. No reservations No reservations R eservations: 2004 1995 1984 Y ear Ratified C ountry United Arab United Arab Emirates Uzbekistan Yemen

55. 56. 57. N o. 64 Musawah for Equality in the Family CEDAW and Muslim Family Laws: In Search of Common Ground 65

Annex 4: Selected Readings on Law and Feminism in Muslim Contexts

BY AUTHOR Abu-Odeh, Lama, ‘Lecture Commentary on Islam Shaaban, Bouthaina, ‘Muted Voices of Women and International Law: Toward a Positive Interpreters’, in Faith and Freedom: Women’s Mutual Engagement to Realize Shared Human Rights in the Muslim World (Mahnaz Ideals’, American Society of International Law Afkhami, ed., London & New York: I B Tauris, Proceedings, Vol. 98, (2004(c)), pp. 167–8. 1995), pp. 61–77. Afshar, Haleh, Islam and Feminisms: An Iranian Connors, Jane, ‘The Woman’s Convention in Case Study (New York: St. Martin’s Press, the Muslim World’, in Feminism and Islam: 1998). Legal and Literary Perspectives (Mai Yamani, ed., Reading: Ithaca Press for the Centre of Ahmed, Leila, Women and Gender in Islam (New Islamic and Middle Eastern Law, School of Haven: Yale University Press, 1992). Oriental and African Studies, University of Al-Hirbi, Azizah, ‘A Study of Islamic Herstory: London, 1996). Or How Did We Ever Get Into This Mess?’, Hashim, Iman, ‘Reconciling Islam and Feminism’, Women’s Studies International Forum 5 (2) Gender and Development, Vol. 7, No. 1– (1982), pp. 207–19. (1999). ———, ‘Islam, Law and Custom: Redefining Hassan, Riffat, ‘Feminism in Islam’, in Feminism Muslim Women’s Rights’, International Law and World Religions (Arvind Sharma & Kate and Policy, Vol. 1 (1997). Young, eds., SUNY Press, 1999), pp. 248–78. Ali, Kecia, ‘Progressive Muslims and Islamic Majid, Anouar, ‘The Politics of Feminism in Islam’, Jurisprudence: The Necessity for Critical Signs, Vol. 23, No. 2 (Winter 1998). Engagement With Marriage and Divorce Law’, in Progressive Muslims: On Justice, Marin, Manuela, ‘Disciplining Wives: A Historical Gender and Pluralism (Omid Safi, ed., Oxford: Reading of Qur’an 4:34’, Studia Islamica 98 Oneworld Publications, 2003). (2003), pp. 5-10. ———, Sexual Ethics and Islam: Feminist Mashhour, Amira, ‘Islamic Law and Gender Reflections on Qur’an, Hadith, and Equality – Could There Be a Common Ground: Jurisprudence (Oxford: Oneworld Publcations, A Study of Divorce and Polygamy in Sharia 2006). Law and Contemporary Legislation in Tunisia and Egypt’, Human Rights Quarterly, 27 An-Naim, Abdullahi, ‘A Kinder, Gentler Islam?’, (2005), pp. 562-96. Transition, No. 52 (1991). Mayer, Ann Elizabeth, ‘Reform of Personal Status ———, Islamic Family Law in a Changing World: A Laws’, in North Africa: A Problem of Islamic Global Resource Book (New York: Zed Books, or Mediterranean Laws? (Women Living Under 2002). Muslim Laws, Occasional Paper No. 8, 1996). ———, ‘The Dichotomy Between Religious and ———, Internationalizing the Conversation on Secular Discourse in Islamic Societies’, in Women’s Rights: Arab Countries Face the Faith and Freedom: Women’s Human Rights CEDAW Committee, in Islamic Law and the in the Muslim World (Mahnaz Afkhami, ed., Challenges of Modernity (Yvonne Yazbeck London: I.B. Tauris, 1995). Haddad and Barbara Stowasser, eds., Oxford: Badran, Margot, Feminism in Islam: Secular and Altamira Press, 2004). Religious Convergences (Oxford: Oneworld Mernissi, Fatima, Women and Islam: An Historical Publications, 2009). and Theological Inquiry (Oxford: Blackwell, Barlas, Asma, Believing Women in Islam: 1999). Unreading Patriarchal Interpretations of the Mernissi, Fatima, et al., Women’s Rebellion and Qur’an (Austin, Texas: University of Texas Islamic Memory (London: Zed Books, 1996). Press, 2002). 66 Musawah for Equality in the Family

Mir-Hosseini, Ziba, Islam and Gender: The ———, ‘Women in Shari’ah Courts: A Historical Religious Debate in Contemporary Iran (New and Methodological Discussion’, Fordham Jersey: Princeton University Press, 1999). International Law Journal, 27 (2003–2004), pp. 225-53. ———, ‘The Construction of Gender in Islamic Legal Thought: Strategies for Reform’, Souaiaia, Ahmed E., Contesting Justice: Women, Hawwa: Journal of Women in the Middle East Islam, Law, and Society (New York: State and the Islamic World, 1/1 (2003), pp. 1–28. University of New York Press, 2008). ———, ‘Muslim Women’s Quest for Equality: Wadud, Amina, Qur’an and Woman: Rereading Between Islamic Law and Feminism’, Critical the Sacred Text from a Woman’s Perspective Inquiry 32, 4 (Summer 2006). (Oxford: Oxford University Press, 1999). Moors, Annelies, ‘Debating Islamic Family Law: ———, Inside the Gender Jihad: Women’s Reform in Legal Texts and Social Practices’, in A Social Islam (Oxford: Oneworld, 2006). History of Women and Gender (Margaret Welchman, Lynn, Women and Muslim Family L. Meriwether and Judith E. Tucker, eds., Laws in Arab States: A Comparative Overview Westview, 1999). of Textual Development and Advocacy Peters, Ruud, ‘Islamic Law and Human Rights: (Amsterdam: Amsterdam University Press, a Contribution to an Ongoing Debate’, Islam 2007). and Christian-Muslim Relations, Vol. 10, No. 1 (1999). BY TITLE OF EDITED COLLECTION Rahman, Fazlur, ‘The Status of Women in Islam: Feminism and Islam: Legal and Literary A Modernist Interpretation’, in Separate Perspectives (Mai Yamani, ed., Reading: Worlds: A Study of Purdah in South Asia Ithaca Press for the Centre of Islamic and (Hanna Papanek and Gail Minault, eds., New Middle Eastern Law, School of Oriental and Delhi: Chanakya Publications, 1982). African Studies, University of London, 1996). Shaheed, Farida, ‘The Cultural Articulation of Islamic Law and the Challenge of Modernity Patriarchy: Legal Systems, Islam and Women’ (Yvonne Yazbeck Haddad and Barbara in Women and Islam: Critical Concepts in Stowasser, eds., Oxford: Altamira Press, Sociology (Haideh Moghissi, ed., London: 2004) Routledge. 2005), pp. 224–43. Knowing Our Rights: Women, Family, Laws and Shaikh, Sa‘diyya, ‘Transforming Feminism: Islam, Customs in the Muslim World (Women Living Women, and Gender Justice’, in Progressive Under Muslim Laws, Third ed., 2006). Muslims (Omid Safi, ed., Oxford: Oneworld, Muslim–Non-Muslim Marriage: Political and 2003), pp. 147–62. Cultural Contestations in Southeast Asia ———, ‘Exegetical Violence: Nushuz in Quranic (Gavin Jones, Chee Heng Leng, and Gender Ideology’, Journal for Islamic Studies Mohamad, Maznah, eds., Singapore: Institute 17 (1997), pp. 49–73. of Southeast Asian Studies, 2009). Singerman, Diane, ‘Re-writing Divorce in Egypt: New Directions in Islamic Thought: Exploring Reclaiming Islam, Legal Activism, and Reform and Muslim Tradition (Kari Vogt, Lena Coalition Politics’, in Remaking Muslim Politics: Larsen, and Christian Moe, eds., London: I.B. Pluralism, Contestation, Democratization Taurus, 2009). (Robert Hefner, ed., New Jersey: Princeton Wanted: Equality and Justice in the Muslim University Press, 2005). Family (Zainah Anwar, ed., Kuala Lumpur: Sonbol, Amira El-Azhary, Women, the Family, and Musawah, 2009). Divorce Laws in Islamic History (Syracuse, Windows of Faith: Muslim Women Scholar- N.Y.: Syracuse University Press, 1996). Activists in North America (Gisela Webb, ed., ———, ‘Ta’a and Modern Legal Reform: A Syracuse University Press, 2000). Rereading’, Islam and Christian-Muslim Relations, Vol. 9, No. 3 (1998). CEDAW and Muslim Family Laws: In Search of Common Ground 67

Notes

1. Musawah would like to thank the members of when_legal_worlds_overlap; Shaheen Sardar the CEDAW Project Team: Ali, Conceptualizing Islamic Law, CEDAW and Women’s Human Rights in Plural Legal Project Leader: Zainah Anwar Settings: A Comparative Analysis of Application Advisory team: Amira Sonbol, Ziba Mir- of CEDAW in Bangladesh, India and Pakistan, Hosseini, Cassandra Balchin, Shanthi Dairiam available at http://www.unifem.org.in/cedaw. Writing team: Jana Rumminger, Janine html; Association democratique des femmes Moussa, Zainah Anwar du Maroc, Report on the Application of CEDAW in the Arab World (May 2009), available at Research team: Janine Moussa (chief http://cedaw.wordpress.com/2009/07/15/ researcher), supported by Yasmin Masidi, report-on-the-application-of-cedaw-in-the- Sujatha Rangaswami, Jessica D’Cruz, arab-world/. Magdalena Piskunowicz, and Esra Esenlik. 5. Thanks also to Vijay Nagaraj for his support Dower, or mahr, is a key concept in Muslim to the Geneva-based researchers. Family laws. Dowry, or the goods that a bride takes with her to the marital home, Editing team: Janine Moussa, Jana is not a concept recognised in Muslim Rumminger, Zainah Anwar, Cassandra Balchin jurisprudence. Most non-English speaking and other members of the advisory team. Muslim communities have completely distinct 2. Azerbaijan, Burkina Faso, Lebanon, and terms for the two practices and the tendency Uzbekistan. to confuse dower and dowry or use them interchangeably in English is a matter of 3. It is important to note that several members of language. the OIC are themselves majority non-Muslim, 6. with significant Muslim minority populations. Available at http://www2.ohchr.org/english/ These countries of those reviewed in the study law/cedaw.htm. include Benin, Cameroon, Gabon, Guinea 7. Available at http://www2.ohchr.org/english/ Bissau, Guyana, Mozambique, Suriname, bodies/cedaw/comments.htm. Togo, and Uganda. See ‘Mapping the Global 8. Muslim Population: a report on the size and Report of the Committee on the Elimination distribution of the World’s Muslim population’, of Discrimination against Women, Eighteenth Pew Research Center (2009), available at and Nineteenth CEDAW Sessions, A/53/38/ http://pewforum.org/Muslim/Mapping-the- Rev.1 (1998), available at http://un.org/ Global-Muslim-Population.aspx. womenwatch/daw/cedaw/reports/18report. pdf, pp. 47–50. 4. E.g., Frances Raday, ‘Culture, Religion, 9. and CEDAW’s Article 5(a)’, in Hanna Beate See ‘Report of the Committee on the Schöpp-Schilling and Cees Flinterman (eds.), Elimination of Discrimination Against Women The Circle of Empowerment: Twenty-Five (Eighteenth and nineteenth sessions)’, Years of the Committee on the Elimination A/53/38/Rev.1 (1998), pp. 47–50, available of Discrimination against Women, New York: at www.un.org/womenwatch/daw/cedaw/ Feminist Press (2007), pp. 68–85; Collectif reports/18report.pdf [hereinafter ‘CEDAW 95 Maghreb Égalité, Guide to Equality in Committee Statement on reservations’]; CEDAW the Family in the Maghreb (2005); UNIFEM General Recommendation number 21: Equality Western Asia Regional Office, ‘Report of the in marriage and family relations (1994), para. Round Table Workshop: CEDAW and Islam 44, available at www.un.org/womenwatch/ and the Human Rights of Women’, Amman, daw/cedaw/recommendations/recomm. Jordan, 18–19 October 1999; International htm#recom21; Concluding observations where Women’s Rights Action Watch Asia Pacific, States parties continue to hold reservations to Occasional Paper No. 1, The Status of CEDAW the Convention. Implementation in ASEAN Countries and 10. ‘CEDAW Committee Statement on Selected Muslim Countries (2004), available reservations’, p. 49, para. 15. at http://www.iwraw-ap.org/aboutus/pdf/ 11. Ibid., paras. 16–17. OPSI.pdf; International Council on Human Rights Policy, When Legal Worlds Overlap: 12. See Vienna Convention on the Law of Treaties Human Rights, State and Non-State Law, (1969), article 26. available at http://www.ichrp.org/en/zoom-in/ 13. Ibid., article 19(c). 68 Musawah for Equality in the Family

14. United Arab Emirates Concluding observations, 38. Singapore Concluding observations, U.N. Doc. U.N. Doc. CEDAW/C/ARE/CO/1 (2010), para. CEDAW/C/SGP/CO/3 (2007), para. 15. 48. 39. Malaysia Concluding observations, U.N. Doc. 15. Jordan Concluding observations, U.N. Doc. CEDAW/C/MYS/CO/2 (2006), para. 13. CEDAW/C/JOR/CO/4 (2007), para. 12. 40. Ibid. 16. Syrian Arab Republic Concluding observations, 41. Egypt Concluding observations, U.N. Doc. U.N. Doc. CEDAW/C/SYR/CO/1 (2007), para. CEDAW/C/EGY/CO/7 (2010), para. 47. 12. 42. Malaysia Concluding observations, U.N. Doc. 17. Algeria List of issues and questions, U.N. Doc. CEDAW/C/MYS/CO/2 (2006), para. 13. CEDAW/PSWG/2005/I/CRP.1/Add.1 (2004), para. 1. 43. Syrian Arab Republic Summary record, U.N. Doc. CEDAW/C/SR.786 (2007), para. 47. 18. Maldives List of issues and questions, U.N. Doc. CEDAW/C/MDV/Q/3 (2006), para. 4. 44. Egypt Concluding observations, U.N. Doc. CEDAW/C/EGY/CO/7 (2010), para. 48. 19. Mauritania List of issues and questions, U.N. Doc. CEDAW/C/MRT/Q/1 (2006), para. 4. 45. United Arab Emirates List of issues and questions, U.N. Doc. CEDAW/C/ARE/Q/1 20. Saudi Arabia Concluding observations, U.N. (2009), para. 29. Doc. CEDAW/C/SAU/CO/2 (2008), para. 10. 46. Yemen Concluding observations, U.N. Doc. 21. Algeria Concluding observations, U.N. Doc. CEDAW/C/YEM/CO/6 (2008), para. 390. CEDAW/C/DZA/CC/2 (2005), para. 23. 47. Azerbaijan Concluding observations, U.N. Doc. 22. Bahrain Concluding observations, U.N. Doc. CEDAW/C/AZE/CO/4 (2009), para. 39. CEDAW/C/BHR/CO/2 (2008), para. 16. 48. Burkina Faso Summary record, U.N. Doc. 23. Libya Summary record, U.N. Doc. CEDAW/C/ CEDAW/C/SR.696 (2005), para. 33. SR.878 (2009), para. 16. 49. Gambia Concluding observations, U.N. Doc. 24. Maldives Concluding observations, U.N. Doc. CEDAW/C/GMB/CO/1-3 (2005), para. 20. CEDAW/C/MDV/CO/3 (2007), para. 11. 50. Guinea Bissau List of issues and questions, 25. Mauritania Summary record, U.N. Doc. U.N. Doc. CEDAW/C/GNB/Q/6/Rev.1 (2009), CEDAW/C/SR.787 (2007), para. 8. para. 28. 26. United Arab Emirates Summary record, U.N. 51. Indonesia List of issues and questions, U.N. Doc. CEDAW/C/SR.914 (2010), para. 21. Doc. CEDAW/C/IDN/Q/5 (2007), para. 29. 27. Maldives Concluding observations, U.N. Doc. 52. Kazakhstan Concluding observations, U.N. CEDAW/C/MDV/CO/3 (2007), para. 11. Doc. CEDAW/C/KAZ/CO/2 (2007), para. 29. 28. India Concluding observations, U.N. Doc. 53. Libya List of issues and questions, U.N. Doc. CEDAW/C/INC/CO/3 (2007), para. 10, 11. CEDAW/C/LBY/Q/2 (2008), para. 24. 29. Singapore Concluding observations, U.N. Doc. 54. Maldives List of issues and questions, U.N. CEDAW/C/SGP/CO/3 (2007), para. 11, 12. Doc. CEDAW/C/MDV/Q/3 (2006), para. 30. 30. Ibid. 55. Mali Concluding observations, U.N. Doc. 31. Egypt Summary record, U.N. Doc. CEDAW/C/ CEDAW/C/MLI/CO/5 (2006), para. 11. SR.918 (2010), para. 22. 56. Morocco List of issues and questions, U.N. 32. Benin Summary record, U.N. Doc. CEDAW/C/ Doc. CEDAW/C/MAR/Q/4 (2007), para. 27. SR.688 (2005), para. 21. 57. Sierra Leone Summary record, U.N. Doc. 33. Cameroon Summary record, U.N. Doc. CEDAW/C/SR.778 (2007), para. 38. CEDAW/C/SR.876 (2009), para. 38. 58. Tajikistan List of issues and questions, U.N. 34. Maldives List of issues and questions, U.N. Doc. CEDAW/C/TJK/Q/3 (2006), para. 27. Doc. CEDAW/C/MDV/Q/3 (2006), para. 3. 59. Togo List of issues and questions, U.N. Doc. 35. Ibid. CEDAW/C/TGO/Q/1-5 (2005), para. 29. 36. Nigeria List of issues and questions, U.N. Doc. 60. Turkmenistan Concluding observations, U.N. CEDAW/C/NGA/Q/6 (2007), para. 25. Doc. CEDAW/C/TKM/CO/2 (2006), para. 40. 37. Pakistan Summary record, U.N. Doc. CEDAW/ 61. Uzbekistan List of issues and questions, C/SR.781 (2007), para. 14. CEDAW/C/UZB/Q/4 (2009), para. 23. CEDAW and Muslim Family Laws: In Search of Common Ground 69

62. Yemen Concluding observations, U.N. Doc. 83. Pakistan Concluding observations, U.N. Doc. CEDAW/C/YEM/CO/6 (2008) para. 388. CEDAW/C/PAK/CO/3 (2007), para. 44, 45. 63. Maldives List of issues and questions, U.N. 84. Saudi Arabia Concluding observations, U.N. Doc. CEDAW/C/MDV/Q/3 (2006), para. 30. Doc. CEDAW/C/SAU/CO/2 (2008), para. 35, 36. 64. Yemen Concluding observations, U.N. Doc. CEDAW/C/YEM/CO/6 (2008), para. 388. 85. Turkmenistan Concluding observations, U.N. Doc. CEDAW/C/TKM/CO/2 (2006), para. 41, 65. Burkina Faso Summary record, U.N. Doc. 40. CEDAW/C/SR.696 (2005), para. 33. 86. Yemen Concluding observations, U.N. Doc. 66. Kazakhstan Concluding observations, U.N. CEDAW/C/YEM/CO/6 (2008), para. 380. Doc. CEDAW/C/KAZ/CO/2 (2007), para. 29. 87. Bahrain Concluding observations, U.N. Doc. 67. Tajikistan List of issues and questions, U.N. CEDAW/C/BHR/CO/2 (2008), para. 39. Doc. CEDAW/C/TJK/Q/3 (2006), para. 27. 88. Indonesia List of issues and questions, U.N. 68. Uzbekistan Summary record, U.N. Doc. Doc. CEDAW/C/IDN/Q/5 (2007), para. 28. CEDAW/C/SR.908 (2010), para. 44. 89. Nigeria List of issues and questions, CEDAW/ 69. Kazakhstan Concluding observations, U.N. C/NGA/Q/6 (2007), para. 26. Doc. CEDAW/C/KAZ/CO/2 (2007), para. 29. 90. Togo Summary record, U.N. Doc. CEDAW/C/ 70. Azerbaijan Concluding observations, U.N. Doc. SR.704 (2006), para. 80. CEDAW/C/AZE/CO/4 (2009), para. 15, 16. 91. Azerbaijan Concluding observations, U.N. Doc. 71. Bahrain List of issues and questions, U.N. CEDAW/C/AZE/CO/3 (2007), para. 30. Doc. CEDAW/C/BHR/Q/2 (2008), para. 27; Bahrain Concluding observations, U.N. Doc. 92. Jordan Concluding observations, U.N. Doc. CEDAW/C/BHR/CO/2 (2008), para. 38, 39. CEDAW/C/JOR/CO/4 (2007), para. 36. 72. Benin List of issues and questions, U.N. Doc. 93. Nigeria List of issues and questions, U.N. Doc. CEDAW/PSWG/2005/II/CRP.1/Add.1 (2005), CEDAW/C/NGA/Q/6 (2007), para. 26. para. 30. 94. Pakistan Concluding observations, U.N. Doc. 73. Burkina Faso Concluding observations, U.N. CEDAW/C/PAK/CO/3 (2007), para. 45. Doc. CEDAW/C/BFA/CO/4-5 (2005), para. 25, 95. Saudi Arabia Concluding observations, U.N. 26. Doc. CEDAW/C/SAU/CO/2 (2008), para. 36. 74. Cameroon List of issues and questions, U.N. 96. Turkmenistan Concluding observations, U.N. Doc. CEDAW/C/CMR/Q/3, para. 27. Doc. CEDAW/C/TKM/CO/2 (2006), para. 81. 75. Gabon List of issues and questions, U.N. Doc. 97. Yemen Concluding observations, U.N. Doc. CEDAW/PSWG/2005/I/CRP.1/Add.3 (2004), CEDAW/C/YEM/CO/6 (2008), para. 380. para. 27. 98. Burkina Faso List of issues and questions, 76. Guinea List of issues and questions, U.N. Doc. U.N. Doc CEDAW/PSWG/2005/II/CRP.1/Add.2 CEDAW/C/GIN/Q/6 (2007), para. 23. (2005), para. 27. 77. Guinea Bissau List of issues and questions, 99. Cameroon List of issues and questions, U.N. U.N. Doc. CEDAW/C/GNB/Q/6/Rev.1 (2009), Doc. CEDAW/C/CMR/Q/3 (2008), para. 25. para. 29. 100. Guinea Bissau Summary record, U.N. Doc. 78. Indonesia List of issues and questions, U.N. CEDAW/C/SR.904 (2009), para. 59. Doc. CEDAW/C/IDN/Q/5 (2007), para. 27. 101. Syrian Arab Republic Summary record, U.N. 79. Jordan Concluding observations, U.N. Doc. Doc. CEDAW/C/SR.786 (2007), para. 43; CEDAW/C/JOR/CO/4 (2007), para. 35, 36. Syrian Arab Republic Concluding observations, 80. Kazakhstan Concluding observations, U.N. CEDAW/C/SYR/CO/1 (2007), para. 33, 34. Doc. CEDAW/C/KAZ/CO/2 (2007), para. 29, 102. Syrian Arab Republic Summary record, U.N. 30. Doc. CEDAW/C/SR.786 (2007), para. 43. 81. Malaysia List of issues and questions, U.N. 103. Bahrain List of issues and questions, U.N. Doc. CEDAW/C/SR.732 (2006), para. 39. Doc. CEDAW/C/BHR/Q/2 (2008), para. 26. 82. Nigeria List of issues and questions, U.N. Doc. 104. Burkina Faso List of issues and questions, CEDAW/C/NGA/Q/6 (2007), para. 26. U.N. Doc CEDAW/PSWG/2005/II/CRP.1/Add.2 (2005), para. 27. 70 Musawah for Equality in the Family

105. Guyana List of issues and questions, U.N. Doc. 128. Syrian Arab Republic Concluding observations, CEDAW/PSWG/2005/II/CRP.1/Add.5 (2005), U.N. Doc. CEDAW/C/SYR/CO/1 (2007), para. para. 26. 18. 106. Lebanon Summary record, U.N. Doc. CEDAW/ 129. Togo Concluding observations, U.N. Doc. C/SR.821 (2008), para. 49. CEDAW/C/TGO/CO/5 (2006), para. 15. 107. Lebanon List of issues and questions, U.N. 130. Uzbekistan Concluding observations, U.N. Doc CEDAW/C/LBN/Q/3 (2007), para. 28. Doc. CEDAW/C/UZB/CO/3 (2006), para. 20. 108. Suriname Concluding observations, U.N. Doc. 131. Gambia Concluding observations, U.N. Doc. CEDAW/C/SUR/CO/3 (2007), para. 11. CEDAW/C/GMB/CO/1–3 (2005), para. 22. 109. Yemen Concluding observations, U.N. Doc. 132. Syrian Arab Republic Concluding observations, CEDAW/C/YEM/CO/6 (2008), para. 390. U.N. Doc. CEDAW/C/SYR/CO/1 (2007), para. 18 110. Malaysia Concluding observations, U.N. Doc. CEDAW/C/MYS/CO/2 (2006), para. 21, 22. 133. Togo Concluding observations, U.N. Doc. CEDAW/C/TGO/CO/5 (2006), para. 15. 111. Gabon State party report, U.N. Doc. CEDAW/ C/GAB/2–5 (2003), p. 27. 134. Azerbaijan Concluding observations, U.N. Doc. CEDAW/C/AZE/CO/4 (2009), para. 40. 112. Turkmenistan Summary record, U.N. Doc. CEDAW/C/SR.723 (2006), para. 54. 135. Burkina Faso List of issues and questions, U.N. Doc. CEDAW/C/BFA/Q/6 (2010), para. 113. Libya Concluding observations, U.N. Doc. 36. CEDAW/C/LBY/CO/5 (2009), para. 37, 38. 136. Guinea Bissau Concluding observations, U.N. 114. Saudi Arabia List of issues and questions, U.N. Doc. CEDAW/C/GNB/CO/6 (2009), para. 26. Doc. CEDAW/C/SAU/Q/2 (2007), article 30. 137. Indonesia Concluding observations, U.N. Doc. 115. Burkina Faso Summary record, U.N. Doc. CEDAW/C/IDN/CO/5 (2007), para. 13. CEDAW/C/SR.696 (2005), para. 34. 138. Nigeria Concluding observations, U.N. Doc. 116. Cameroon List of issues and questions, U.N. CEDAW/C/NGA/CO/6 (2008), para. 323. Doc. CEDAW/C/CMR/Q/3, para. 27. 139. Togo Concluding observations, U.N. Doc. 117. Togo Concluding observations, U.N. Doc. CEDAW/C/TGO/CO (2006), para. 15. CEDAW/C/TGO/CO/5 (2006), para. 15. 140. Uzbekistan Concluding observations, U.N. 118. Turkmenistan List of issues and questions, Doc. CEDAW/C/UZB/CO/3 (2006), para. 20. U.N. Doc. CEDAW/C/TKM/Q/2 (2006), para. 30. 141. Yemen Concluding observations, U.N. Doc. CEDAW/C/YEM/CO/6 (2008), para. 364. 119. Azerbaijan Concluding observations, U.N. Doc. CEDAW/C/AZE/CO/3 (2007), para. 16. 142. Burkina Faso List of issues and questions, U.N. Doc. CEDAW/C/BFA/Q/6 (2010), para. 120. Gabon Concluding observations, U.N. Doc. 36. CEDAW/C/GAB/CC/2–5 (2005), para. 31. 143. Azerbaijan Concluding observations, U.N. Doc. 121. Gambia Concluding observations, U.N. Doc. CEDAW/C/AZE/CO/4 (2009), para. 40. CEDAW/C/GMB/CO/1–3 (2005), para. 22. 144. Uzbekistan Concluding observations, U.N. 122. Guinea Concluding observations, U.N. Doc. Doc. CEDAW/C/UZB/CO/3 (2006), para. 20. CEDAW/C/GIN/CO/6 (2007). para. 23. 145. Jordan Concluding observations, U.N. Doc. 123. Lebanon Concluding observations, U.N. Doc. CEDAW/C/JOR/CO/4 (2007), para. 12. CEDAW/C/LBN/CO/2 (2005), para. 30. 146. Lebanon Summary record, U.N. Doc. CEDAW/ 124. Mali Concluding observations, U.N. Doc. C/SR.820 (2008), para. 68. CEDAW/C/MLI/CO/5 (2006), para. 18. 147. Singapore Summary record, U.N. Doc. 125. Mauritania Concluding observations, U.N. Doc. CEDAW/C/SR.803 (A) (2007), para. 17. CEDAW/C/MRT/CO/1 (2007), para. 22. 148. United Arab Emirates Concluding observations, 126. Pakistan List of issues and questions, U.N. U.N. Doc. CEDAW/C/ARE/CO/1 (2010), para. Doc. CEDAW/C/PAK/Q/3 (2006), para. 9. 46. 127. Sierra Leone Concluding observations, U.N. 149. Ibid. Doc. CEDAW/C/SLE/CO/5 (2007), para. 21. CEDAW and Muslim Family Laws: In Search of Common Ground 71

150. Maldives Summary record, U.N. Doc. CEDAW/ 173. Pakistan Summary record, U.N. Doc. CEDAW/ C/SR.764 (B) (2007), para. 57. C/SR.781 (2007), para. 42. 151. United Arab Emirates Summary record, U.N. 174. India Summary record, U.N. Doc. CEDAW/ Doc. CEDAW/C/SR.915 (2010), para. 37. C/SR.761(A) (2007), para. 17; U.N. Doc. CEDAW/C/SR.762(A) (2007), para. 31, 33, 152. Singapore Summary record, U.N. Doc. 38. CEDAW/C/SR.803 (A) (2007), para. 17. 175. India Summary record, U.N. Doc. CEDAW/C/ 153. Jordan Concluding observations, U.N. Doc. SR.762(A) (2007), para. 38. CEDAW/C/JOR/CO/4 (2007), para. 12. 176. India Concluding observations, U.N. Doc. 154. Indonesia Concluding observations, U.N. Doc. CEDAW/C/IND/CO/3 (2007), para. 10, 11. CEDAW/C/IDN/CO/5 (2007), para. 13. 177. Singapore Concluding observations, U.N. Doc. 155. Maldives Concluding observations, U.N. Doc. CEDAW/C/SGP/CO/3 (2007), para. 15-16. CEDAW/C/MDV/CO/3 (2007), para. 37. 178. Kazakhstan State party report, U.N. Doc. 156. Jordan Concluding observations, U.N. Doc. CEDAW/C/KAZ/2 (2005), p. 8. CEDAW/C/JOR/CO/4 (2007), para. 11, 12. 179. Gabon State party report, U.N. Doc. CEDAW/ 157. Malaysia Concluding observations, U.N. Doc. C/GAB/2–5 (2003), p. 5. CEDAW/C/ MYS/CO/2 (2007), para. 14. 180. Guinea Bissau List of issues and questions, 158. Maldives Concluding observations, U.N. Doc. U.N. Doc. CEDAW/C/GNB/Q/6/Add.1 (2009), CEDAW/C/MDV/CO/3 (2007), para. 37. para. 144. 159. Cameroon Summary record, U.N. Doc. 181. Lebanon State party report, U.N. Doc. CEDAW/C/SR.877 (2009), para. 55. CEDAW/C/LBN/3 (2006), para. 5. 160. Egypt Responses to list of issues and 182. Tajikistan State party report, U.N. Doc. questions, U.N. Doc. CEDAW/C/EGY/Q/7/ CEDAW/C/TJK/1–3 (2005), p. 159. Add.1 (2009), p. 8. 183. Azerbaijan State party report, U.N. Doc. 161. Gambia Summary record, U.N. Doc. CEDAW/ CEDAW/C/AZE/2–3 (2005), p. 83. C/SR.697 (2005), para. 12. 184. Turkey State party report, U.N. Doc. CEDAW/ 162. Mali Summary record, U.N. Doc. CEDAW/C/ C/TUR/4–5 (2003) p. 4. SR.717 (2006), para. 36. 185. Azerbaijan State party report, U.N. Doc. 163. Maldives Summary record, U.N. Doc. CEDAW/ CEDAW/C/AZE/2–3 (2005), p. 83. C/SR.764 (2007). 186. Malaysia State party report, U.N. Doc. 164. Pakistan Summary record, U.N. Doc. CEDAW/ CEDAW/C/MYS/1–2 (2004), para. 390. C/SR.781 (2007), para. 42. 187. Kazakhstan State party report, U.N. Doc. 165. United Arab Emirates Concluding observations, CEDAW/C/KAZ/2 (2005), p. 8. U.N. Doc. CEDAW/C/ARE/CO/1 (2010), para. 45. 188. Tajikistan State party report, U.N. Doc. CEDAW/C/TJK/1–3 (2005), p. 159. 166. Pakistan Summary record, U.N. Doc. CEDAW/ C/SR.782 (2007), para. 47. 189. Turkey Summary record, U.N. Doc. CEDAW/ C/SR.678 (2005), para. 57. 167. Cameroon Summary record, U.N. Doc. CEDAW/C/SR.877 (2009), para. 55. 190. Tajikistan State party report, U.N. Doc. CEDAW/C/TJK/1–3 (2005), p. 159. 168. Maldives Summary record, U.N. Doc. CEDAW/ C/SR.764 (2007). 191. Nigeria Responses to list of issues and questions, U.N. Doc. CEDAW/C/NGA/Q/6/ 169. Ibid. Add.1 (2008), para. 25. 170. Egypt Responses to list of issues and 192. Syria State party report, U.N. Doc. CEDAW/C/ questions, U.N. Doc. CEDAW/C/EGY/Q/7/ SYR/1 (2005), p. 15. Add.1 (2009), p. 8. 193. Algeria Responses to list of issues and 171. Mali Summary record, U.N. Doc. CEDAW/C/ questions, U.N. doc. CEDAW/PSWG/2005/I/ SR.717 (2006), para. 36. CRP.2 (2004), p. 4. 172. Mauritania Summary record, U.N. Doc. 194. Suriname Summary record, U.N. Doc. CEDAW/C/SR.787 (2007), para. 4. CEDAW/C/SR.770 (2007). 72 Musawah for Equality in the Family

195. Mali State party report, U.N. Doc. CEDAW/C/ 217. Malaysia State party report, U.N. Doc. MLI/2-5 (2004), p. 15. See also CEDAW/C/MYS/1–2 (2004), para. 69. 196. Algeria Responses to list of issues and 218. Pakistan Summary record, U.N. Doc. CEDAW/ questions, U.N. doc. CEDAW/PSWG/2005/I/ C/SR.781 (2007), para. 19. CRP.2 (2004), p. 4. 219. Saudi Arabia State party report, U.N. Doc. 197. Indonesia Response to the list of issues and CEDAW/C/SAU/2 (2007), p. 10. questions, U.N. Doc. CEDAW/C/IDN/Q/5/ 220. Ibid. Add.1 (2007), para. 26. 221. Malaysia Summary record, U.N. Doc. CEDAW/ 198. Guinea State party report, U.N. Doc. CEDAW/ C/SR.732 (2006), para. 54. C/GIN/4–6 (2005), p. 12. 222. Egypt List of issues and questions, U.N. Doc. 199. Nigeria Responses to list of issues and CEDAW/C/EGY/Q/7/Add.1 (2009), p. 8. questions, U.N. Doc. CEDAW/C/NGA/Q/6/ Add.1 (2008), para. 25. 223. Syrian Arab Republic Summary record, U.N. Doc. CEDAW/C/SR.786 (2005), para. 49. 200. Ibid. 224. Bahrain State party report, U.N. Doc. CEDAW/ 201. Tajikistan State party report, U.N. Doc. C/BHR/2 (2007), p. 32. CEDAW/C/TJK/1–3 (2005), p. 159. 225. Egypt State party report, U.N. Doc. CEDAW/ 202. Togo Responses to list of issues and questions, C/EGY/7 (2008), p. 74. U.N. Doc. CEDAW/C/TGO/Q/1–5/Add.1 (2006), p. 38. 226. Libya State party report, U.N. Doc. CEDAW/C/ LBY/2 (1999), p. 2. 203. Cameroon Responses to list of issues and questions, U.N. Doc. CEDAW/C/CMR/Q/3/ 227. Malaysia State party report, U.N. Doc. Add.1 (2008), para. 27. CEDAW/C/MYS/1-2 (2004), para. 92. 204. Thailand State party report, U.N. Doc. 228. Mauritania Summary record, U.N. Doc. CEDAW/C/THA/4–5, (2004), para. 22. CEDAW/C/SR.787 (2007), para. 11. 205. Philippines Summary record, U.N. Doc. 229. Nigeria State party report, U.N. Doc. CEDAW/ CEDAW/C/SR.748 (A) (2006), para. 49. C/NGA/6 (2006), p. 98. 206. Syrian Arab Republic State party report, U.N. 230. Saudi Arabia State party report, U.N. Doc. Doc. CEDAW/C/SYR/1 (2005), p. 15. CEDAW/C/SAU/2 (2007), p. 7. 207. Bahrain State Party Report, U.N. Doc. CEDAW/ 231. Bahrain State party report, U.N. Doc. CEDAW/ C/BHR/2 (2007), p. 10. C/BHR/2 (2007), p. 32. 208. United Arab Emirates State party report, U.N. 232. Malaysia State party report, U.N. Doc. Doc. CEDAW/C/ARE/1 (2008), p. 5. CEDAW/C/MYS/1–2 (2004), para. 92. 209. Libya State party report, U.N. Doc. CEDAW/C/ 233. Ibid. LBY/2 (1999), p. 2. 234. Libya State party report, U.N. Doc. CEDAW/C/ 210. Syrian Arab Republic State Party Report, U.N. LBY/2 (1999), p. 2. Doc. CEDAW/C/SYR/1 (2005). 235. Pakistan Summary record, U.N. Doc. CEDAW/ 211. Mauritania Responses to list of issues and C/SR.781 (2007), para. 23. questions, U.N. Doc. CEDAW/C/MRT/Q/1/ 236. Egypt State party report, U.N. Doc. CEDAW/ Add.1 (2007). C/EGY/7 (2008), p. 74. 212. Bahrain State Party Report, U.N. Doc. CEDAW/ 237. Ibid. C/BHR/2 (2007). 238. Malaysia State party report, U.N. Doc. 213. United Arab Emirates State party report, U.N. CEDAW/C/MYS/1–2 (2004), para. 410. Doc. CEDAW/C/ARE/1 (2008). 239. Pakistan Summary record, U.N. Doc. CEDAW/ 214. Egypt Responses to list of issues and C/SR.782 (2007), para. 52. questions, U.N. Doc. CEDAW/C/EGY/Q/7/ Add.1 (2009), p. 8. 240. United Arab Emirates State party report, U.N. Doc. CEDAW/C/ARE/1 (2008), p. 58. 215. Syrian Arab Republic Summary record, U.N. Doc. CEDAW/C/SR.786 (2007), para. 49. 241. Ibid. 216. Jordan Responses to list of issues and 242. Egypt State party report, U.N. Doc. CEDAW/ questions, U.N. Doc. CEDAW/C/JOR/Q/4/ C/EGY/7 (2008), p. 75. Add.1 (2007), para. 6. CEDAW and Muslim Family Laws: In Search of Common Ground 73

243. Bahrain Summary record, U.N. Doc. CEDAW/ 267. Gabon Summary record, U.N. Doc. CEDAW/C/ C/SR.861 (2009), para 66. SR.670 (2005), para. 42. 244. Saudi Arabia Summary record, U.N. Doc. 268. Turkmenistan Summary record, U.N. Doc. CEDAW/C/SR.816 (2008), para. 17. CEDAW/C/SR.724 (2006), para. 57. 245. Gabon State party report, U.N. Doc. CEDAW/ 269. Algeria Summary record, U.N. Doc. CEDAW/ C/GAB/2–5 (2003), p. 26. C/SR.668 (2005), para. 35. 246. Ibid., p. 27. 270. United Arab Emirates Summary record, U.N. Doc. CEDAW/C/SR.915 (2010), para. 35. 247. For example, Gabon, Guinea, Guinea Bissau, Kazakhstan, Lebanon, Nigeria, Turkey and 271. Algeria Summary record, U.N. Doc. CEDAW/ Uganda. C/SR.668 (2005), para. 35. 248. Burkina Faso State party report, U.N. Doc. 272. Malaysia Summary record, U.N. Doc. CEDAW/ CEDAW/C/BFA/6 (2009), para. 58. C/SR.732 (2006), para. 43. 249. Mali Summary record, U.N. Doc. CEDAW/C/ 273. Maldives State party report, U.N. Doc. SR.718 (2006), para. 56. CEDAW/C/MDV/2–3 (2005), para. 41. 250. Pakistan State party report, U.N. Doc. 274. Mauritania Summary record, U.N. Doc. CEDAW/C/PAK/1–3 (2005), para. 478. CEDAW/C/SR.788 (2007), para. 54. 251. Tajikistan State party report, U.N. Doc. 275. Morocco State party report, U.N. Doc. CEDAW/ CEDAW/C/TJK/1–3 (2005), p. 11. C/MAR/4 (2006), para. 367. 252. Burkina Faso Summary record, U.N. Doc. 276. Syrian Arab Republic Summary record, U.N. CEDAW/C/SR.696 (2005), para. 46. Doc. CEDAW/C/SR.786 (2007), para. 51. 253. Mali Summary record, U.N. Doc. CEDAW/C/ 277. Togo List of issues and questions, U.N. Doc. SR.718 (2006), para. 56. CEDAW/C/TGO/Q/1-5/Add.1 (2006), p. 38. 254. Indonesia List of issues and questions, U.N. 278. Yemen Summary record, U.N. Doc. CEDAW/ Doc. CEDAW/C/IDN/Q/5/Add.1 (2007) p. 25. C/SR.833 (2008), para. 50. 255. Tajikistan State party report, U.N. Doc. 279. Mauritania Summary record, U.N. Doc. CEDAW/C/TJK/1–3 (2005), p. 11. CEDAW/C/SR.788 (2007), para. 54. 256. Indonesia List of issues and questions, U.N. 280. Syrian Arab Republic List of issues and Doc. CEDAW/C/IDN/Q/5/Add.1 (2007), p. 25. questions, U.N. Doc. CEDAW/C/TGO/Q/1-5/ Add.1 (2006), p. 38. 257. Benin State party report, U.N. Doc. CEDAW/ C/BEN/1–3 (2002), p. 22. 281. Syrian Arab Republic Summary record, U.N. Doc. CEDAW/C/SR.786 (2007), para. 51. 258. Lebanon Summary record, U.N. Doc. CEDAW/ C/SR.821 (2008), para. 64. 282. Malaysia Summary record, U.N. Doc. CEDAW/ C/SR.732 (2006), para. 43. 259. Mali Summary record, U.N. Doc. CEDAW/C/ SR.717 (2006), para. 27. 283. Jordan Summary record, U.N. Doc. CEDAW/ C/SR.806 (A) (2007), para. 31. 260. Togo Summary record, U.N. Doc. CEDAW/C/ SR.704 (2006), para. 67. 284. ‘Declarations, reservations, objections and notifications of withdrawal of reservations 261. Pakistan Summary record, U.N. Doc. CEDAW/ relating to the Convention on the Elimination C/SR.781 (2007), para. 44. of All Forms of Discrimination against Women’, 262. Benin State party report, U.N. Doc. CEDAW/ U.N. Doc. CEDAW/SP/2010/2, 1 March 2010, C/BEN/1–3 (2002), p. 22. p. 21. 263. Pakistan State party report, U.N. Doc. 285. Ibid., p. 48. CEDAW/C/PAK/1–3 (2005), para. 90. 286. Singapore Summary record, U.N. Doc. 264. Turkey Summary record, U.N. Doc. CEDAW/ CEDAW/C/SR.803 (A) (2007), para. 52. C/SR.677 (2005), para. 31. 287. Ibid. 265. Algeria Summary record, U.N. Doc. CEDAW/ 288. India State party report, U.N. Doc. CEDAW/C/ C/SR.668 (2005), para. 15. IND/2–3 (2005), para.4. 266. United Arab Emirates Summary record, U.N. 289. India Summary record, U.N. Doc. CEDAW/C/ Doc. CEDAW/C/SR.915 (2010), para. 36. SR.761(A) (2007), para. 17. 74 Musawah for Equality in the Family

290. Ibid., para. 30. 313. Lebanon Responses to list of issues and questions, U.N. Doc. CEDAW/C/LBN/Q/3/ 291. Philippines Summary record, U.N. Doc. Add.1 (2007), p. 12. CEDAW/C/SR.747 (A) (2006), para. 24. 314. Gambia State party report, U.N. Doc. CEDAW/ 292. Bahrain State party report, U.N. Doc. CEDAW/ C/GMB/1–3 (2003), p. 14. C/BHR/2 (2007), p. 32. 315. Togo State party report, U.N. Doc. CEDAW/C/ 293. Gambia State party report, U.N. Doc. CEDAW/ TGO/1–5 (2004), p. 39. C/GMB/1–3 (2003), p. 13. 316. Guinea Bissau Responses to list of issues and 294. Libya Summary record, U.N. Doc. CEDAW/C/ questions, U.N. Doc. CEDAW/C/GNB/Q/6/ SR.879 (2009), para. 37. Add.1 (2009), para. 170. 295. Singapore Summary record, U.N. Doc. 317. Kazakhstan Summary record, U.N. Doc. CEDAW/C/SR.803 (A) (2007), para. 39 and CEDAW/C/SR.758 (2007). 52. 318. Turkmenistan Summary record, U.N. Doc. 296. Bahrain State party report, U.N. Doc. CEDAW/ CEDAW/C/SR.724 (2006), para. 58. C/BHR/2 (2007), p. 32. 319. Benin State party report, U.N. Doc. CEDAW/ 297. Libya Summary record, U.N. Doc. CEDAW/C/ C/BEN/1–3 (2002), p. 88. SR.879 (2009), para. 38. 320. Guinea State party report, U.N. Doc. CEDAW/ 298. Gambia State party report, U.N. Doc. CEDAW/ C/GIN/4–6 (2005), p. 19. C/GMB/1–3 (2003), p. 13. 321. Mali State party report, U.N. Doc. CEDAW/C/ 299. Singapore Summary record, U.N. Doc. MLI/2–5 (2004), p. 63. CEDAW/C/SR.803 (A) (2007), para. 52. 322. Ibid. 300. Azerbaijan State party report, U.N. Doc. CEDAW/C/AZE/2–3 (2007), p. 83. 323. Benin State party report, U.N. Doc. CEDAW/ C/BEN/1–3 (2002), p. 88. 301. Guinea Summary record, U.N. Doc. CEDAW/ C/SR.796 (A) (2007), para. 23. 324. Guinea State party report, U.N. Doc. CEDAW/ C/GIN/4–6 (2005), p. 19. 302. Mali Summary record, U.N. Doc. CEDAW/C/ SR.718 (2006), para. 55. 325. Gabon Responses to the list of issues and questions, U.N. Doc. CEDAW/PSWG/2005/I/ 303. Jordan Summary record, U.N. Doc. CEDAW/ CRP.2/Add.2 (2004), p. 5. C/SR.806 (A) (2007), para. 29. 326. Algeria Summary record, U.N. Doc. CEDAW/ 304. Lebanon Responses to list of issues and C/SR.668 (2005), para. 42. questions, U.N. Doc. CEDAW/C/LBN/Q/3/ Add.1 (2007), p. 12. 327. Gabon Summary record, U.N. Doc. CEDAW/C/ SR.669 (2005), para. 25. 305. Thailand Summary record, U.N. Doc. CEDAW/ SR.708 (2006), para. 54. 328. Gambia State party report, U.N. Doc. CEDAW/ C/GMB/1-3 (2003), p. 17. 306. Jordan Summary record, U.N. Doc. CEDAW/ C/SR.806 (A) (2007), para. 29. 329. Guinea Bissau Summary record, U.N. Doc. CEDAW/C/SR.904 (2009), para. 64. 307. Thailand Summary record, U.N. Doc. CEDAW/ SR.708 (2006), para. 54. 330. Maldives Summary record, U.N. Doc. CEDAW/ C/SR.763 (B) (2007). 308. Algeria Summary record, U.N. Doc. CEDAW/ C/SR.668 (2005), para. 15. 331. Gambia State party report, U.N. Doc. CEDAW/ C/GMB/1–3 (2003), p. 17. 309. Jordan Summary record, U.N. Doc. CEDAW/ C/SR.806 (A) (2007), para. 29. 332. Guinea Bissau Summary record, U.N. Doc. CEDAW/C/SR.904 (2009), para. 64. 310. Lebanon Responses to list of issues and questions, U.N. Doc. CEDAW/C/LBN/Q/3/ 333. Gabon Summary record, U.N. Doc. CEDAW/C/ Add.1 (2007), p. 12. SR.669 (2005), para. 25. 311. Mali Summary record, U.N. Doc. CEDAW/C/ 334. Maldives Summary record, U.N. Doc. CEDAW/ SR.718 (2006), para. 55. C/SR.763 (B) (2007). 312. Algeria Summary record, U.N. Doc. CEDAW/ 335. Egypt State party report, U.N. Doc. CEDAW/ C/SR.668 (2005), para. 15. C/EGY/7 (2008). CEDAW and Muslim Family Laws: In Search of Common Ground 75

336. Mali Summary record, U.N. Doc. CEDAW/C/ 358. See, for example, the shadow report by the SR.717 (2006), para. 40. Center for Egyptian Women’s Legal Assistance, 45th CEDAW session (2010), p. 2. See also the 337. Mauritania Summary record, U.N. Doc. shadow report submitted by Mafiwasta (United CEDAW/C/SR.787 (2007), para. 4. Arab Emirates), 45th CEDAW session (2010), 338. Pakistan State party report, U.N. Doc. p. 13, available at http://www2.ohchr.org/ CEDAW/C/PAK/1–3 (2005), para. 481. english/bodies/cedaw/docs/Mafiwasta_E.pdf. 339. Syrian Arab Republic Summary record, U.N. 359. Ibid. See also the shadow report prepared by Doc. CEDAW/C/SR.786 (2007), para. 51. the Committee for the Follow-Up on Women’s th 340. Mauritania Summary record, U.N. Doc. Issues (Lebanon), 40 CEDAW session CEDAW/C/SR.787 (2007), para. 4. (2008), p.7, available at http://www2. ohchr.org/english/bodies/cedaw/docs/ngos/ 341. Mali Summary record, U.N. Doc. CEDAW/C/ CommitteeFollowuponWomen.pdf. SR.717 (2006), para. 40. 360. See, for example, the shadow report 342. Egypt State party report, U.N. Doc. CEDAW/ submitted by the Association of Women for C/EGY/7 (2008). Action and Research (Singapore), 39th CEDAW 343. Pakistan State party report, U.N. Doc. session (2007), para. 16.40, available at CEDAW/C/PAK/1–3 (2005), para. 481. http://www.iwraw-ap.org/resources/pdf/ Singapore%20SR%20final.pdf. 344. Azerbaijan Summary record, U.N. Doc. 361. CEDAW/C/SR.766 (2007). See, for example, the shadow report submitted by the CEDAW Working Group 345. Burkina Faso List of issues and questions, Initiative (Indonesia), 39th CEDAW U.N. Doc. CEDAW/C/BFA/Q/6/Add.1 (2010), Sesssion (2007), para. 155, available at p. 7. http://www.iwraw-ap.org/resources/pdf/ 346. Gambia Summary record, U.N. Doc. CEDAW/ Indonesian%20SR%20Final.pdf. C/SR.697 (2005), para. 58. 362. See, for example, the alternative report 347. Indonesia Summary record, U.N. Doc. submitted by the Human Rights Center of CEDAW/C/SR.800 (A) (2007), para. 37. Azerbaijan, 44th CEDAW session (2009), p. 16, available at http://www2.ohchr.org/ 348. Maldives Responses to list of issues and english/bodies/cedaw/docs/ngos/HRCA_ questions, U.N. Doc. CEDAW/C/NAM/Q/3/ Azerbaijan44.pdf. See also the shadow report Add.1 (2006), para. 27. prepared by the CEDAW Working Report 349. Pakistan Responses to list of issues and Initiative (Indonesia), 39th CEDAW session questions, U.N. Doc. CEDAW/C/PAK/Q/3/ (2007), para. 191. Add.1 (2007), para. 41. 363. See, for example, the shadow report 350. Gambia Summary record, U.N. Doc. CEDAW/ submitted by Sisters Arab Forum (Yemen), C/SR.697 (2005), para. 58. 41st CEDAW session (2008), p.7, available at http://www2.ohchr.org/english/bodies/ 351. Indonesia Summary record, U.N. Doc. cedaw/docs/ngos/SAFHRYemen41.pdf. CEDAW/C/SR.800 (A) (2007), para. 37. 364. See, for example, the alternative report on 352. Azerbaijan Summary record, U.N. Doc. CEDAW for the Gambia, 33rd CEDAW session CEDAW/C/SR.766 (2007). (2005), p.3 and 8, available at http://www. 353. Morocco Responses to list of issues and iwraw-ap.org/resources/pdf/Gambia.pdf. questions, U.N. Doc. CEDAW/C/MAR/Q/4/ 365. See, for example, the shadow report Add.1 (2007), p. 19. submitted by the CEDAW Working Group 354. Singapore Summary record, U.N. Doc. Initiative (Indonesia), 39th CEDAW CEDAW/C/SR.804 (A) (2007), para. 34. session (2007), para.200(1), available at http://www.iwraw-ap.org/resources/pdf/ 355. Maldives State party report, U.N. Doc. Indonesian%20SR%20Final.pdf. CEDAW/C/MDV/2-3 (2005), para. 5.2.1. 366. See, for example, the alternative report 356. Indonesia Summary record, U.N. Doc. submitted by the Partners Network for the CEDAW/C/SR.800 (A) (2007), para. 38. Promotion and Protection Human Rights 357. Pakistan Shadow report submitted by the in Mauritania, 38th CEDAW session (2007), National Commission for Justice and Peace, p. 12, available at http://www.iwraw- 38th session (2007), p. 51, available at http:// ap.org/resources/pdf/38_shadow_reports/ www.iwraw-ap.org/resources/pdf/Pakistan%2 Mauritania_Alternative_Report_English. 0SR%20%28NCJP%29.pdf. 76 Musawah for Equality in the Family

pdf. See also the shadow report submitted http://www.iwraw-ap.org/resources/pdf/40_ by various Niger NGOs, 38th CEDAW session shadow_reports/Saudi_Arabia_Report_by_ (2007), p. 4, available at http://www.iwraw- HRW.pdf. ap.org/resources/pdf/Niger%20SR%20%28u 374. See, for example, the shadow report pdated%29.pdf. submitted by non-governmental organisations 367. See, for example, the alternative report of Tajikistan, 37th CEDAW session (2007), p. submitted by the Working Group of the 62, available at http://www.iwraw-ap.org/ Nongovernmental Female Organisations of resources/pdf/Tajikistan%20final%20report% Kazakhstan, 37th CEDAW session (2007), p. 20English.pdf. 45, available at http://www.iwraw-ap.org/ 375. See, for example, the alternative report resources/pdf/Kazakhstan%20Shadow%20Re submitted by the Partners Network for the port.pdf. Promotion and Protection Human Rights 368. See, for example, the shadow report in Mauritania, 38th CEDAW session (2007), submitted by the Association of Women p. 11, available at http://www.iwraw- for Action and Research (Singapore), 39th ap.org/resources/pdf/38_shadow_reports/ CEDAW session (2007), p. vi, vii, available Mauritania_Alternative_Report_English.pdf. at http://www.iwraw-ap.org/resources/pdf/ See also the shadow report compiled by Singapore%20SR%20final.pdf. See also the Nigeria NGO Coalition on CEDAW, 41st the shadow report coordinated by Karama CEDAW session (2008), p. 64, available at Network of Jordan, 39th CEDAW session http://www.iwraw-ap.org/resources/pdf/41_ (2007), p. 16, available at http://www2. shadow_reports/Nigeria_SR_by_WACOL_ ohchr.org/english/bodies/cedaw/docs/ngos/ NGO_Coalition.pdf. CEWLAEgypt_45.pdf. 376. See, for example, the alternative report 369. See, for example, the shadow report submitted by Le Collectif 95 Maghreb Egalite submitted by the National Commission for (Algeria), 20th CEDAW session (2005), para. Justice and Peace (Pakistan), 38th CEDAW 11, available at http://www.iwraw-ap.org/ session (2007), p. 54, available at http:// resources/algeria_%28french%29.pdf. www.iwraw-ap.org/resources/pdf/Pakistan%2 377. See, for example, the shadow report 0SR%20%28NCJP%29.pdf. submitted by the Center for Reproductive 370. Ibid. Rights, on Nigeria, 41st CEDAW session (2008), p. 63. 371. See, for example, the shadow report submitted by the Center for Egyptian Women’s 378. See, for example, the shadow report Legal Assistance (Egypt), 45th CEDAW session submitted by Le Collectif 95 Maghreb Egalite (2010), p. 12, available at http://www2. (Algeria), 20th CEDAW session (2005), para. ohchr.org/english/bodies/cedaw/docs/ngos/ 11, available at http://www.iwraw-ap.org/ CEWLAEgypt_45.pdf. See also the shadow resources/algeria_%28french%29.pdf. report submitted by Mozambique non- 379. See, for example, the shadow report governmental organisations, 38th CEDAW submitted by the Association of Women session (2007), p. 9, available at http://www. for Action and Research (Singapore), 39th iwraw-ap.org/resources/pdf/Mozambique.pdf. CEDAW session (2007), paras.16.22-24 and 372. See, for example, the shadow report 16.45, available at http://www.iwraw-ap.org/ submitted by the CEDAW Working Group resources/pdf/Singapore%20SR%20final.pdf. Initiative (Indonesia), 39th CEDAW session 380. For more detailed discussions and references, (2007), para. 200(2). See also the shadow see the following chapters in Wanted: Equality report submitted by Women for Women’s and Justice in the Muslim Family, edited by Human Rights – New Ways (Turkey), 32nd Zainah Anwar, Musawah (2009): Ziba Mir- CEDAW session (2005), p.4 and p.12 available Hosseini, ‘Towards Gender Equality: Muslim at http://www.iwraw-ap.org/resources/ Family Laws and the Shari’ah’; Muhammad turkey_WWHR-New_Ways%28Eng%29.pdf. Khalid Masud, ‘Ikhtilaf al-Fuqaha: Diversity 373. See, for example, the alternative report in Fiqh as a Social Construction’; and Khaled submitted by ‘Monitoring the Implementation Abou El Fadl, ‘The Human Rights Commitment of CEDAW in Azerbaijan’, 44th CEDAW session in Modern Islam’. (2009), p. 23. See also ‘Perpetual Minors: 381. In fact, several States parties to the CEDAW Human Rights Abuses Stemming from Male Convention have acknowledged the diversity Guardianship and Sex Segregation in Saudi of interpretations. A delegate from the United Arabia’, submitted by Human Rights Watch, Arab Emirates, for instance, ‘said that there 40th CEDAW session (2008), available at CEDAW and Muslim Family Laws: In Search of Common Ground 77

was indeed room for interpretation in Islamic 394. In addition, a chart outlining rights-based laws jurisprudence’, United Arab Emirates Summary in the Muslim world can be found in Annex 2. record, U.N. Doc. CEDAW/C/SR.915 (2010), 395. Indonesia Responses to list of issues and para. 35, while a Syrian delegate said that questions, U.N. Doc. CEDAW/C/IDN/Q/5/ ‘people tended to confuse the traditional with the Add.1 (2007), p. 25. religious, as shown by the fact that the Islamic countries did not all have the same positions on 396. Guinea State party report, U.N. Doc. CEDAW/ the various articles of the Convention’. Syrian C/GIN/4–6 (2005), p. 19. Arab Republic Summary record, U.N. Doc. 397. Maldives Summary record, U.N. Doc. CEDAW/ CEDAW/C/SR.786 (2007), para. 51. C/SR.764 (B) (2007), para. 60, 62, 63. 382. Egypt Responses to list of issues and 398. Togo State party report, U.N. Doc. CEDAW/C/ questions, U.N. Doc. CEDAW/C/EGY/Q/7/ TGO/1–5 (2004), p. 16. Add.1 (2009), p. 8. 399. Indonesia Responses to list of issues and 383. Ibn Qayyim al-Jawziyyah, I’lam al-Muwaqqi’in, questions, U.N. Doc. CEDAW/C/IDN/Q/5/ vol. 3, 1st edition, Cairo: Sa’ada, 1955, p. 1. Add.1 (2007), p. 25. 384. United Arab Emirates Responses to list of 400. Bahrain State Party Report, U.N. Doc. CEDAW/ issues and questions, U.N. Doc. CEDAW/C/ C/BHR/2 (2007), p. 108. ARE/Q/1/Add.1 (2009), p. 4. 401. Maldives Summary record, U.N. Doc. CEDAW/ 385. Malaysia Summary record, U.N. Doc. CEDAW/ C/SR.764 (B) (2007), para. 62. C/SR.732 (2006), para. 54. 402. Saudi Arabia Responses to the list of issues 386. For more information on ikhtilaf, see and questions, U.N. Doc. CEDAW/C/SAU/Q/2/ Muhammad Khalid Masud, ‘Ikhtilaf al-Fuqaha: Add.1 (2007), p. 30. Diversity in Fiqh as a Social Construction’, in Wanted: Equality and Justice in the Muslim 403. ‘Early Marriage’, available at http:// Family, edited by Zainah Anwar, Kuala www.sistersinislam.org.my/index. Lumpur: Musawah (2009), available at php?option=com_content&task=view&id=575 http://www.musawah.org/docs/pubs/wanted/ &Itemid=298. Wanted-MKM-EN.pdf. 404. Convention on the Rights of the Child, 387. For more detailed information, see Ziba Mir- Article 1: ‘For the purposes of the present Hosseini, ‘Towards Gender Equality: Muslim Convention, a child means every human being Family Laws and the Shari’ah’, in Wanted: below the age of eighteen years unless under Equality and Justice in the Muslim Family, the law applicable to the child, majority is edited by Zainah Anwar, Kuala Lumpur: attained earlier’. Musawah (2009), available at http://www. 405. Paragraphs 36 and 38 of CEDAW General musawah.org/docs/pubs/wanted/Wanted- Recommendation number 21 state that ‘the ZMH-EN.pdf. minimum age for marriage should be 18 years 388. United Arab Emirates State party report, U.N. for both man and woman’, and that provisions Doc. CEDAW/C/ARE/1 (2008), p. 17. for different ages of marriage for men and women should be abolished. The Committee 389. Saudi Arabia Responses to the list of issues on the Rights of the Child has stated that and questions, U.N. Doc. CEDAW/C/SAU/Q/2/ different ages for boys and girls violates the Add.1 (2007), p. 29. Convention and that States parties to the CRC 390. Malaysia State party report, U.N. Doc. must ensure that boys and girls are treated CEDAW/C/MYS/1-2 (2004), para. 410. equally with respect to minimum age of marriage and also recommends that 18 be the 391. IWRAW Asia Pacific, CEDAW Knowledge minimum age for both boys and girls. See Rea Center, ‘The Principle of Equality’, available A. Chiongson, The Right to Decide If, When at http://www.iwraw-ap.org/convention/ and Whom to Marry: Obligations of the State equality.htm. under CEDAW and Other International Human 392. For a detailed discussion on this, see Rights Instruments, International Women’s International Council on Human Rights Rights Action Watch Asia Pacific Occasional Policy, When Legal Worlds Overlap: Human Papers Series No.6 (2005), p. 20. In addition, Rights, State and Non-State Law, Geneva: the Human Rights Committee and Committee International Council on Human Rights Policy on Economic, Social and Cultural Rights have (2009). stated that a difference in ages violates the instrument, that the legal minimum age 393. Ibid., pp. 135-7. should be 18 for both boys and girls, and 78 Musawah for Equality in the Family

that early marriage has harmful effects on 409. Mohammad Hashim Kamali, Islamic Law in children. Ibid. The Universal Declaration of Malaysia: Issues and Developments, Kuala Human Rights and CEDAW require equal Lumpur: Ilmiah Publishers (2000), pp. 112- rights for men and women in marriage, during 13. marriage, and at its dissolution. 410. Ibid., p. 109. 406. Paragraph 275(b) of the BPFA specifies 411. UDHR, Article 16(2): ‘Marriage shall be that among the actions to be taken by entered into only with the free and full Governments and international and non- consent of the intending spouses’. governmental organisations with regard to girls is to ‘[g]enerate social support for the 412. Article 16(1)(b) of CEDAW calls for the enforcement of laws on the minimum legal elimination of discrimination against women age for marriage, in particular by providing in matters relating to marriage and family educational opportunities for girls’. The relations and equality between men and Putrajaya Declaration from the Ministerial women by giving them ‘the same right freely Meeting of the Non-Aligned Movement in to choose a spouse and to enter into marriage May 2005 not only stresses the importance only with their free and full consent’. The of education for girls and women, but the CEDAW Committee stated in paragraph 16 member countries committed themselves of General Recommendation number 21, ‘A to ensuring girls and women can obtain woman’s right to choose a spouse and enter education through at least the secondary freely into marriage is central to her life and level. The Declaration reads: ‘We hereby to her dignity and equality as a human being’. commit ourselves to: … (c) Take all 413. Paragraph 274(e) of the BPFA requires appropriate measures to enforce compulsory governments to take action to ‘[e]nact and education to 12th grade instead of 9th grade; strictly enforce laws to ensure that marriage (d) Take all appropriate measures to ensure is only entered into with the free and full that women and girls have equal opportunity consent of the intending spouses’. and access at all levels to formal, informal and non-formal education as well as technical 414. See International Women’s Rights Action and vocational trainings…. ’ Watch Asia Pacific, The Right to Decide If, When and Whom to Marry: Obligations of the 407. Paragraph 268 of the Beijing Platform for State under CEDAW and Other International Action states, ‘Overall, early marriage Human Rights Instruments, Occasional Papers and early motherhood can severely curtail Series No. 6 (2005), available at http://www. educational and employment opportunities and iwraw-ap.org/aboutus/pdf/OPS_VI.pdf. are likely to have a long-term adverse impact on their and their children’s quality of life’, 415. Libya Summary record, U.N. Doc. CEDAW/C/ and paragraph 274(e) calls on Governments SR.879 (2009), para. 38. to ‘enact and strictly enforce laws concerning 416. Algeria Summary record, U.N. Doc. CEDAW/ the minimum legal age of consent and the C/SR.668 (2005), para. 35. minimum age for marriage and raise the 417. minimum age for marriage where necessary Ibid. …’. CEDAW General Recommendation No. 418. Syrian Arab Republic Summary record, U.N. 21 states: ‘According to the World Health Doc. CEDAW/C/SR.786 (2007), para. 51. Organisation, when minors, particularly girls, 419. marry and have children, their health can Algeria Summary record, U.N. Doc. CEDAW/ be adversely affected and their education is C/SR.668 (2005), para. 35. impeded. As a result their economic autonomy 420. Morocco State party report, U.N. Doc. CEDAW/ is restricted. This not only affects women C/MAR/4 (2006), para. 367–370. personally but also limits the development 421. Malaysia State party report, U.N. Doc. of their skills and independence and reduces CEDAW/C/ MYS/1–2 (2004), para. 405–6. access to employment, thereby detrimentally affecting their families and communities’. 422. Maldives State party report, U.N. Doc. CEDAW/C/ MDV/2–3 (2005), para. 41. 408. Amira El-Azhary Sonbol, Adults and Minors in Ottoman Shari`a Courts and Modern Law in 423. Togo Summary record, U.N. Doc. CEDAW/C/ Sonbol, Women, the Family and Divorce Laws SR.704 (2006), para. 67. in Islamic History. Syracuse University Press 424. Burkina Faso Summary record, U.N. Doc. (1996), pp. 236-59. CEDAW/C/SR.696 (2005), para. 46. CEDAW and Muslim Family Laws: In Search of Common Ground 79

425. Gambia Summary record, U.N. Doc. CEDAW/ are diminished. Often, such contributions C/SR.698 (2005), para. 48. of a non-financial nature by the wife enable the husband to earn an income and increase 426. Mali Summary record, U.N. Doc. CEDAW/C/ the assets. Financial and non-financial SR.718 (2006), para. 56. contributions should be accorded the same 427. Tajikistan State party report, U.N. Doc. weight’. CEDAW/C/TJK/1–3 (2005), p. 11. 438. Egypt List of issues and questions, U.N. Doc. 428. Article 16(1)(a) of the Universal Declaration CEDAW/C/EGY/Q/7/Add.1 (2009), p. 8. of Human Rights, which is echoed in article 439. Libya Summary record, U.N. Doc. CEDAW/C/ 16(1)(a) and (c) of CEDAW, states: ‘[Men SR.879 (2009), para. 38. and women] are entitled to equal rights as to marriage, during marriage and at 440. Syrian Arab Republic Summary record, U.N. its dissolution’. Paragraph 14 of CEDAW Doc. CEDAW/C/SR.786 (2005), para. 49. General Recommendation number 21 441. Egypt Responses to list of issues and states: ‘Polygamous marriage contravenes a questions, U.N. Doc. CEDAW/C/EGY/Q/7/ woman’s right to equality with men, and can Add.1 (2009), p. 8. have such serious emotional and financial consequences for her and her dependants 442. Bahrain State party report, U.N. Doc. CEDAW/ that such marriages ought to be discouraged C/BHR/2 (2007), p. 32. and prohibited’. 443. Libya Summary record, U.N. Doc. CEDAW/C/ 429. This Malaysian national level research SR.879 (2009), para. 38. interviewed over 1,400 first wives, second 444. Gambia State party report, U.N. Doc. CEDAW/ wives, husbands and children to examine C/GMB/1-3 (2003), p. 13. the emotional, financial and social impact of polygamy on different members of the family, 445. Singapore Summary record, U.N. Doc. and whether the legal framework protects CEDAW/C/SR.803 (A) (2007), para. 52. the interest of family members. The findings 446. Libya Summary record, U.N. Doc. CEDAW/C/ are still being analysed. Final findings will be SR.879 (2009), para. 38. presented in 2011. For further information on 447. the project, please contact sistersinislam@ Bahrain Summary record, U.N. Doc. CEDAW/ pd.jaring.my. C/SR.861 (2009), para 66. 448. 430. Bahrain Summary record, U.N. Doc. CEDAW/ Paragraph 28 of General Recommendation C/SR.861 (2009), para 66. number 21 states: ‘In most countries, a significant proportion of the women are 431. United Arab Emirates State party report, U.N. single or divorced and many have the sole Doc. CEDAW/C/ARE/1 (2008), p. 58. responsibility to support a family. Any 432. Saudi Arabia Responses to the list of issues discrimination in the division of property that and questions, U.N. Doc. CEDAW/C/SAU/Q/2/ rests on the premise that the man alone is Add.1 (2007), p. 29. responsible for the support of the women and children of his family and that he can and will 433. Egypt State party report, U.N. Doc. CEDAW/ honourably discharge this responsibility is C/EGY/7 (2008), pp. 75–6. clearly unrealistic. Consequently, any law or 434. Ibid. custom that grants men a right to a greater share of property at the end of a marriage 435. CEDAW Article 16(1)(c). or de facto relationship, or on the death of 436. CEDAW Article 16(1)(h). a relative, is discriminatory and will have a serious impact on a woman’s practical ability 437. CEDAW General Recommendation number 21 to divorce her husband, to support herself stipulates, ‘The right to own, manage, enjoy or her family and to live in dignity as an and dispose of property is central to a woman’s independent person’. Paragraph 35 states: right to enjoy financial independence, and in ‘There are many countries where the law and many countries will be critical to her ability practice concerning inheritance and property to earn a livelihood and to provide adequate result in serious discrimination against housing and nutrition for herself and for her women. As a result of this uneven treatment, family.… In some countries, on division of women may receive a smaller share of the marital property, greater emphasis is placed husband’s or father’s property at his death on financial contributions to property acquired than would widowers and sons. In some during a marriage, and other contributions, instances, women are granted limited and such as raising children, caring for elderly controlled rights and receive income only from relatives and discharging household duties 80 Musawah for Equality in the Family

the deceased’s property. Often inheritance … to ensure that women have equal rights to rights for widows do not reflect the principles marital property and inheritance upon their of equal ownership of property acquired husband’s death’. during marriage. Such provisions contravene 451. In the Beijing Platform for Action paragraph the Convention and should be abolished’. 60(f), governments agreed to ‘mobilize to 449. Human Rights Committee General Comment protect women’s rights to full and equal Number 28, paragraph 26: ‘Women should access to economic resources, including the have equal inheritance rights to those of men right of inheritance and to ownership of land when the dissolution of marriage is caused by and other property’. the death of one of the spouses’. 452. Taken from the website of the Office of 450. The Committee on Economic, Social and the United Nations High Commissioner of Cultural Rights, General Comment Number Human Rights, http://treaties.un.org/Pages/ 16, paragraph 27: ‘Implementing article 3, in ViewDetails.aspx?src=TREATY&mtdsg_no=IV- relation to article 10, requires States parties 8&chapter=4&lang=en, as at 31 December 2010.

CEDAW and Muslim Family Laws: in Search of Common Ground 

CEDAW and Muslim Family Laws: in Search of Common Ground