THE SHARIAH’S COMMENT ON THE RULING OF THE WESTERN CAPE HIGH COURT


Assalamu alaikum

 

20 Zil Hajj 1434

26 October 2013

THE SHARIAH’S COMMENT ON THE RULING OF THE WESTERN CAPE HIGH COURT

In a press report on the Western Cape High Court’s ruling  on 25 October 2013, pertaining to the legal recognition of  a Muslim woman’s Islamic marriage, the following inaccuracy  appears:

“The husband subsequently  annulled  the marriage under Islamic rite, but the couple later resumed  sexual relations.

According to the tenets of Islam, this meant that the annulment, called Talaq, was no longer valid.”

 

This statement is grossly incorrect because:

  • According to the Shariah, a husband has no power of annulling his Nikah (Islamic Marriage).
  • Sexual relations do not invalidate an Annulment
  • Sexual relations with the woman after a valid Islamic Annulment is Zina (adultery).

The hogwash in the report is due to the ignorance of the reporter or compiler of the report. The likely scenario was that the husband had issued oneTalaq Raj’i (Revocable Divorce). When such a divorce is issued, the husband retains the right of reconciling with his wife. In this process of reconciliation, the  wife to whom a Talaaq Raj’i  was administered has no say and no option. It is a unilateral  process. The husband has the Islamic right to unilaterally  take back his wife prior to the expiry of a period called the Iddat.

If the husband invokes his right of reconciling, the Talaaq Raj’i which he had issued is not invalidated. It remains in suspense  for lifetime. A man has the right to issue three Talaaqs. After administering one Talaaq, he still has the right to issue two more Talaaq.

According to the Shariah, sexual relations after administration of a Talaaq Raj’i  is in effect  reconciliation which is a revocation (Raj’at) of the Talaaq. It is not the invalidation of the Talaaq. The Talaaq remains valid lifelong.

Annulment means FaskhFaskh is not Talaaq. An annulment is valid in the Shariah only if decreed by an Islamic court or by an Islamic Committee/Tribunal empowered to issue such a decree. To secure an annulment, it is necessary for the wife to lodge an application. Only after  the due Shar’i  process has followed its course will the application be granted or rejected. There is no certitude  that the wife’s application for Faskh will be granted.

The press report also mentions:  “The man’s adult son from a prior marriage then forced the woman out of their home.”  If  the husband had revoked the Talaaq Raj’i – and this appears to be the case from the MJC’s letter stating the  subsistence of the Nikah – the woman had the full right to remain in the marital home. According to the Shariah, occupying the marital home during the Iddat is mandatory. The son had no Islamic legal right of expelling his stepmother from the marital home. Furthermore, morally too, in terms of Islam, the son had no right of expelling his stepmother from the marital home.

In addition, if the marital home is the property of the deceased husband, then the woman had inherited her share in the property and in all the assets of her husband. She  will share equally with her co-wife, the first wife of her husband.

Assuming that the man had not revoked  the Talaaq thereby terminating the Nikah, then too, the son had no right Islamically speaking, to evict his stepmother from the house. A stepmother according to the Shariah has similar rights as one’s mother. The same respect, dignity, concern and maintenance which the Shariah  has ordained for one’s biological mother, accrue for the stepmother as well.

The press report further adds: “The court found there had been considerable delays in the promulgation of the Muslim marriages bill, dealing with the legal intricacies of such marriages.” For the edification of the court, it should be mentioned that the so-called ‘Muslim’ Marriages Bill provides no solution for  ‘such’ marriages. The MMB is a concoction of anomalies presented  deceptively under Islamic guise. It provides no solution for the type of scenario which the Western Cape High Court had to deal with. If the marriage of the woman was indeed Islamically valid at the time of the  death of the man, then the court’s ruling in so far as the legality of the marriage is concerned is correct. On the other hand, if the Nikah had already ended in terms of the Shariah, then the ruling of the court is catastrophic because:

1.       The ruling  confers legality to a non-existent marriage thereby conferring the status of wifehood to a strange woman.

2.       The rights of inheritance are conferred on a person who is Islamically not an heir of the deceased. The consequence is usurpation of  the rights and wealth of others.

The only solution for matrimonial disputes of Muslims is for them to submit to the rulings  of the Ulama. There is absolutely no other valid and viable solution. The hybrid MMB concoction simply entrenches kufr which ignorant Muslims will believe is the Law of the Shariah.

Reproduced originally from: UUCSA (2013)

 

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