Dossier 25: Practices in the Shari’a Court of Appeal in Israel; Gendered Reading of Arbitration Decisions
Publication Author:Hoda Rouhana
|Word Document||157.12 كيلوبايت|
number of pages:103
Until the early 1970’s, as A. Moors suggests, “The academic study of Islamic family law was largely the privileged terrain of Orientalists. Employing a textual approach, they constructed an Islamic family that remained monolithic, static, and rigidly patriarchal until the promulgation of twentieth-century legal reforms.”2
J.N.D. Anderson, basing his study on a textual analysis of the legal text, had presented a perspective on women and family in Islamic law. When talking about the features characteristic of the Muslim family, he employs the term patriarchal: where women did not have similar rights and were obliged to always obey their husbands. Further on he describes the legal reforms that took place at the twentieth-century as the “eclipse of the patriarchal family”. 3
According to Moors, the grounds of the debate have fundamentally changed after the 1970s. She asserts that, “firmly held assumptions have come up for debate, and major shifts have accrued in conceptualising women and gender relations. Rather than taking the meaning of gender for granted, the way in which gender is constructed and how this relates to gendered social practices have become central issues. Women are no longer seen as a homogenous category, and the complex relations between gender and other axes of distinction, such as class, are elaborated on.”4
In 1993, Z. Mir Hosseini conducted a study based on fieldwork in family courts and among litigants in cases in Morocco and Iran. In this study she describes the way that litigants manipulate the law in order to resolve marital difficulties. According to Hosseini, “Each dispute case is a microcosm of forces that shape the reality of Muslim life: the force of the sacred elements in law, the modern legal system that embodies and enforces it and the way individuals, be they judges or litigants, perceive and relate to both.” She challenges the prevailing assumption that the secularization of the law necessarily enhances women’s positions and that a return to shari’a law limits women’s choices and detracts from their position.5
While personal status laws were largely debated in literature on other countries in the Middle East, few works have been produced speaking specifically on the issue as it relates to the Palestinian minority in Israel.6 The most significant work done in this area is the work of A. Layish (Women and Islamic Law in a Non-Muslim State, 1975). This work is based on an extensive study of the records of the shari’a courts in Israel in the 1960s.
In several writings (1974,1975,1993) Layish talks about the relationship between the shari’a and custom, and the role that the qadi (judge) plays in constructing this relationship. According to him the differences between the qadis are expressed in their attitude towards custom. The role the qadis play is crucially important, because the shari’a court operates in a non-Muslim state. Talking about the Islamization of custom he asserts that this process lacks the theoretical-doctrinal elements developed in the past with great skill and diligence by the authorized exponents of Islamic law.7 He continues that the qadis’ motivation to Islamize custom is in the general interest (maslaha). However, Layish did not look at the different interests women may have stemming from their different positions and positioning in society. Rather, he concluded that the qadis made an important contribution to the improvement of the position of women in matters of personal status.8 Layish talks about the ambivalent attitude of the qadis to secular legislation imposed on the shari’a courts and the role some qadis played in unwittingly encouraging circumvention of the secular law. However in the end he concludes that secular legislation has contributed significantly to the improvement of the status of women.9
My essay will attempt to fill in the gaps resulting from a lack of literature dealing with personal status laws and the Palestinian minority in Israel. It aims to examine the practices in the Shari’a Court of Appeal (SCA) from a gender perspective. I will examine this by looking at the Court’s decisions in arbitration cases, the application of arbitration by the SCA as an institutional manifestation of customary norms and its implication on women’s status.
Muslim Personal Status Laws and the Shari’a Courts in Israel:
Palestinian citizens of Israel comprise close to 20% (one million) of the population of the country. They belong to three religious communities: Muslim (76%), Christian (15%), and Druze (9%). They are nationally and historically part of the Palestinian people who currently live in the West Bank, Gaza Strip, and the ‘Diaspora’.10 After the war in 1948, and the establishment of the state of Israel, the Arabs who remained in their lands were transformed from members of a majority population to a national minority in an exclusively Jewish state, a state built on the rubble of Palestine and the displacement of the people. They lacked political as well as economic power, because their leadership, professionals, bourgeoisie and middle class were refused the right to return and were compelled to live outside Israel.11
In Israel, issues involving personal status matters (marriage, divorce, alimony, custody, property, etc…) are generally decided by religious courts, according to religious laws. While in some personal status matters, citizens have the right to apply to the state ‘Family Courts’, marriage and divorce remain exclusively within the jurisdiction of the religious courts. In certain cases, Jewish, Christian and Druze individuals can choose to bring their conflicts before the newly established state ‘Family Courts’, as long as these disputes are not pure marriage and divorce matters.12
However, until November 2001, Muslims did not have the option to choose between the state ‘Family Courts’ and the Muslim religious courts (referred to as the shari’a court), as Muslim religious courts retained exclusive jurisdiction over all personal status matters. Similarly, Christians did not have the option of choosing between civil and religious courts in issues concerning wife maintenance, as Christian courts retained exclusive jurisdiction over this issue. The new state ‘Family Courts’ were given the power to adjudicate on the personal status matters of Arab Muslims and Christians by a bill passed in the Knesset (the Israeli parliament) in November 2001, which was the result of a proposal presented by Palestinian women activists. Nevertheless, as mentioned above, marriage and divorce have remained exclusively within the jurisdiction of the religious courts for all religious groups.
Muslims, until November 2001, enjoyed wider judicial authority than any of the other religious communities in the country. This was a result of Article 51 of the Palestine Order in Council of 1922, which granted them exclusive jurisdiction in all matters of personal status laws and waqf (religious endowments). With the creation of the state of Israel, however, their communal organization collapsed completely, and they lost the autonomous communal organization or religious-political leadership they had enjoyed in the Mandate days. The members of the Supreme Muslim Council and the shari’a elite muftis (Muslim jurists who are authorized to issue religious decrees ‘fatwa’), qadis (judges) and senior ulama (scholars) – departed, and the religious legal system, the waqf administration, and the various communal institutions ceased to exist. Under these new circumstances, the stronghold of the shari’a court in Israel was restricted to religious jurisdiction in matters of personal status law and waqf. It is important to note that under late Ottoman rule and the British Mandate the jurisdiction of the shari’a courts was already confined to matters of personal status, succession and waqf. Penal law, civil transactions, injuries and other matters were, on the other hand, transferred to the jurisdiction of civil courts.13
In Israel there are seven shari’a courts of the first instance, each one consisting of a single qadi, and one shari’a Court of Appeal with a bench of two or three qadis. Qadis in the shari’a courts are appointed in accordance with civil law, by civil authorities, at the recommendation of a committee headed by the Minister for Religious Affairs.14 The shari’a courts in Israel are male-dominated. All qadis are men. Despite the fact that the 1961 law for appointing qadis does not indicate the sex of the applicant, no woman has ever been appointed as a qadi.15 Although there are a number of women lawyers, “Women prefer to seek the services of a shari’a litigator (all of whom are men) as they charge a cheaper price compared to lawyers.”16 The 1961 law for appointing qadis is problematic, as it does not require the qadi to have any shari’a education, nor indeed any other legal education.17 Most of the qadis serving in the shari’a courts lack a formal shari’a education, as well as legal knowledge.18 This is problematic especially, in the light of the central role that the qadis play in the shari’a courts in Israel, in the interpretation of legal texts and in issuing court decisions.19 The shari’a courts play a crucial role in the life of Muslims in Israel. Nevertheless, their work is severely obstructed.20 This is the direct result of discriminatory policies in the state allocation of budgets. The budgets allocated to these courts are insufficient to answer their basic needs, such as staffing and adequate building provision.21
The shari’a courts’ jurisdiction over personal status matters is enshrined in the “Ottoman Law of Family Rights” (OLFR), which represented the first state promulgated codification of Muslim family law, and its accompanying law of shari’a procedure. This law was codified in the Ottoman Empire in 1917 and implemented in Palestine in 1919. It remained in force after the creation of the state of Israel” in 1948.
The “Ottoman Law of Family Rights” is based on the Hanafi school of thought. However, it included views from other Sunni schools of thought.22 The problem with the contemporary application of the OLFR in the shari’a courts is that its sections are limited to marriage and divorce. In addition, the law of shari’e procedure accompanying the OLFR is limited and very difficult to implement in modern courts.23 In many cases, such as ‘the silence of the text’ (Giyab Al Nass), judges need to refer to the books of the scholar Abu Hanifa Ketab Alahwal Alshaqsiya, to the well-known codification of personal status and succession laws laid down by the Egyptian Qadri Pasha “to the law in some Arab countries, for the aim of istia’nass,”24 (for inspiration). The personal status laws in Middle Eastern countries, which for the most part use the OLFR as one of their main sources, have undergone major reforms. In reforming the law, most Arab legislatures moved largely within the Islamic jurisprudence tradition in response to a changing socio-economic context. However, the OLFR applied in the shari’a courts in Israel was not reformed. Layish argued that, “The Israeli legislator, for obvious reasons, could hardly adopt the legislative techniques of takhayur (the selection or combination of elements from different schools of thoughts) and other devices customary in Arab countries, which were intended to give reforms the character of an internal refurbishing of religious law.”25
The Knesset enacted civil laws concerning personal status, which are binding in all religious courts. It subjected its legislation to two severe restrictions; “It abstained from interfering with any religious prohibition or permission as to marriage and divorce; it adopted procedural provisions and penal sanctions as deterrents in preference to substantive provisions which would have invalidated the relevant religious law.” and, in matters for which provisions superseding religious law were enacted, the parties were usually given the option of litigating in accordance with religious law.”26
The main civil laws that are applied in the shari’a courts are:
1. The Marriage Age Law of 1950.27
2. The Women’s Equal Rights Law of 1951. This includes a ban on polygamy and on divorcing one’s wife against her will.28
3. The Maintenance (Assurance of Payment) Law of 1972.29
4. The Property Relations between Spouses Law of 1973, and the reforms of 1991.
While there is a general tendency to view the laws as bringing a positive change to the status of women, women’s NGOs have pointed out the difficulties in enforcing these laws. According to the Working Group’s report on The Status of Palestinian Women in Israel which was submitted to the CEDAW, child marriage or polygyny are permitted, even though the law punishes people who practice them and who help others to practice them. The enactment of the criminal provisions has not helped to improve the situation of women, as the authorities have not enforced the law effectively.30 One of the reasons for the difficulty in enforcing criminal provisions is highlighted by Layish. According to his explanation, the intervention of the Knesset, a non-Muslim legislature, in this sensitive area of personal status is a great concern to Muslim citizens. Muslims are very critical of the Knesset’s legislation. They suspect it is guided by a desire to undermine the position of the shari’a and the traditional social order, to the extent that some qadis prefer to ignore this legislation and remain bound exclusively by the shari’a law norms in these matters.31 Another explanation lies in the general tendency of some of the Israeli authorities to approach the violation of women’s rights as an internal issue for the Arab community that cannot be challenged. This is evident in the way the police and courts deal with issues relating to domestic violence in general, and to so-called ‘honor crimes’.32
The issue of the authority of the shari’a court in Israel has always been contested. Any attempts to provide opportunities to Muslim women to bring their cases in front of civil courts had caused strong reactions. These reactions are a result of the relationship between personal status law with the imagined, “group identity,” and a result of the limited secular space in a state that defines itself as a Jewish one.33
Court Cases: Judicial Divorce and Arbitration:
One of the grounds for dissolution of a marriage on the initiative of one of the spouses is ‘discord and strife’ (niza wa shiqaq) between them. The phrase ‘discord and strife’ refers to severe abuse by either one or both parties to the extent that marital life cannot possibly continue. According to article 130 of the Ottoman Law of Family Rights, once such strife is established to the satisfaction of the shari’a court, the qadi is to appoint two arbitrators (hakam), if possible from the families of the spouses, and they, also referred to as ‘the family council’ (al-majlis al-aelee), are to try to the best of their ability to bring about a reconciliation. If they fail through the husband’s fault, they are to decide on the dissolution of the marriage. If they fail through the wife’s fault, she is to be divorced by khul; a form of repudiation by which the wife releases herself from the marriage for a consideration, while losing the right to the whole or part of the dower. If the arbitrators fail to reach an agreement between them, the qadi is to appoint other arbitrators from the families of the spouses or a third arbitrator from neither family. The arbitrator’s award is final and is not subject to appeal.34 The application for judicial divorce on the grounds of ‘discord and strife’ under the Ottoman Law of Family Rights represents a limited adoption of Maliki rules in the area of divorce law, as the Hanafi rules on the grounds on which the wife might seek judicial divorce are the most restrictive of the four Sunni schools.35
In addition to ‘discord and strife’ the Ottoman Law of Family Rights includes a number of grounds on which separation can be claimed. They include insanity of the husband, the existence of a dangerous contagious disease, or a disease or disability preventing consummation of the marriage, including impotence of the husband, madness of the husband, and absence and injury including non-payment of maintenance by an absent husband.36
In this study I looked at 26 decisions on arbitration, issued by the Shari’a Court of Appeal in Jerusalem (SCA) in the year 1997. These decisions were the last to be published by the SCA. Most of the decisions revealed some information about the case discussed in the Court of First Instance which I will discuss in this section. One of the difficulties that I faced in this study is the limited information provided about the spouses, and limited information on how the cases were dealt with in the Court of First Instance.
In her book Islamic Family Law, Text and Practice in Palestine, L. Welchman asserts that most separation claims in the West Bank are initiated by the wife. Although there are a number of grounds on which the husband too can petition the court for separation rather than exercising his power of unilateral talaq (divorce) under the Jordanian Law of Personal Status (JLPS). In practice, nearly all claims for separation are submitted by women.37 In Israel the rate of accessing this mechanism for divorce is higher than the use of unilateral talaq due to the 1951 Women’s Equal Rights Law which prohibits talaq without the consent of the wife. The laws concerning judicial divorce were originally codified to give women access to divorce in special circumstances, and it is the only way for women to obtain divorce if their husbands are refusing to end the marriage. However, “some husbands may choose appealing to this law in order to escape the penal sanction they may face if they committed talaq without the consent of their wives.”38
Another reason for seeking to apply this mechanism by husbands is to escape settling the wife’s financial rights (idda maintenance, deferred mahr) when pronouncing unilateral divorce.39 It is difficult to compare the number of judicial divorce cases with the number of unilateral talaq cases because usually the latter is not brought to the Shari’a Court of Appeal. However, among the 146 SCA decisions that were published in Alkashaf for the year 1997, 26 cases concerned judicial divorce on the ground of ‘discord and strife’, four were concerning ‘confirming talaq’ and one was concerning ‘judicial dissolution’ (faskh).40 The decisions of the SCA showed that a higher percentage of men compared to women appealed to the Court of First Instance for judicial divorce on the grounds of ‘discord and strife’. Of the 26 cases brought to the Court of First Instance, fourteen petitioners were men, 10 were women and two cases were brought by both sides.
The Court of First Instance
Grounds for ‘discord and strife’
The grounds (used by husbands in 14 cases) for applying article 130 were widened in the Court of First Instance to include:
1. Childless marriage, wife not fulfilling her duties toward her husband, wife’s false claims against her husband, the wife verbally insulting his family, the wife left the house and went to her parent’s house, the failure of all attempts of reconciliation.
2. The involvement of the police in their case and issuance of a restraint order against the husband, the wife left the house and went to her parent’s house, the wife did not obey the obedience order issued against her.
3. The involvement of the police in their case.
4. The wife had a relationship with a stranger, and wife’s immoral behavior.
5. The wife’s demand for artificial insemination as a result of the infertility of the husband.
6. Suspicion that the wife had a relationship with a stranger.
In 8 cases the grounds were not clear.
The grounds (used by wives in 10 cases) for applying article 130 in the Court of First Instance include:
1. Not implementing the marriage by the traditional ceremony (zafaf), the husband did not ask for the traditional ceremony, the husband has not been in contact for three years, the husband negotiated with the wife to terminate the marriage.
2. The marriage was for the sake of the husband obtaining a passport.
3. The marriage was for the sake of the husband obtaining a passport, bad relations between the spouses, mutual accusation of attacks and harassment, the involvement of the police in the case, nonconsummation of the marriage.
4. A childless marriage which causes problems between the two spouses, the wife left the house after being attacked by the husband physically and verbally.
5. Agreement between the two on divorce.
6. Physical abuse by the husband.
7. Inability to solve the problems between them despite of the intervention of others who tried to help; the husband’s suspicion that the wife had a relationship with strangers.
In three cases the grounds were not clear.
The amount of fault and “shari’e right” in the Court of First Instance: 41
Details on cases where dissolution claims (judicial divorce – tafriq) were made by the husband in the Court of First Instance (14 cases):
• In two of the cases where the dissolution claims were made by the husband the court declared him responsible for causing ‘discord and strife’ and thus guaranteed the women their shari’e rights, the waiting period maintenance (idda) and her deferred dower (moa’khar).
• In one case the woman was granted her shari’e rights after the husband had said that he is willing to give her all of her shari’e rights, in this case he wasn’t held to be at fault by the court.
• In four cases the court deprived the women from their shari’e rights, in two of the four cases the court deprived women only of her deferred dower, and in the other two cases the court deprived her of all her shari’e rights, the deferred dower and the waiting period maintenance (idda). In one of these four cases the court deprived the woman of her rights without declaring who was held at fault.
• In one case the court declared the wife to be at fault even before the court had appointed arbitrators.
• In five cases both of the spouses were blamed and each spouse was to pay or forfeit financial dues in proportion to the relative amount of fault.
• In one case where the arbitrators failed to find out who was at fault, the court decided that the husband was to pay an amount of money to his wife.
• In 9 cases the wife was deprived of all or a portion of her shari’e rights. All decisions were made with the recommendation of the arbitrators.
Details of cases where the wife made dissolution claims in the Court of First Instance (10 cases):
• In three cases the husband was held to be at fault by the court and thus was obliged to pay his wife all her shari’e rights, the deferred dower and the waiting period maintenance. In the case where the marriage was not consummated, the husband was to pay half of the deferred dower.
• In two cases the wives were held to be at fault and were deprived of their shari’e rights, and they were ordered to return jewellery and clothes that were given to them by the husbands and their families.
• In five cases the details did not indicate who was held to be at fault. In one case the wife was deprived of her deferred dower but was given the right to remain in the house. In another case the wife was ready to make concessions on the deferred dower and was granted half of it. In one case the woman was guaranteed half of the deferred dower because the marriage was not consummated. In one case concerning ‘discord and strife’ no decision was made regarding financial rights, and in another case no information was provided in this respect.
In a total of three out of eight cases (as two out of the ten were not clear) the wife was deprived of her shari’e rights.
All the decisions were made according to the recommendation of the arbitrators, except in one case.
Details of cases initiated by both spouses:
In the first case the court, upon the recommendation of the arbitrator, held the husband at fault and thus it granted the wife all of her shari’e rights. No information was provided on the second case in this respect.
It is difficult to draw conclusions from the above decisions about the general tendency of the court and the arbitrators in deciding on ‘discord and strife’ cases because first, the above cases were those that were brought later to the Supreme Court and second, not enough information was provided concerning these decisions. However, from the available information on the cases the following conclusions could be made:
1. Women initiating the application of article 130 do not automatically loose their financial rights. This is in contradiction to the general belief among women that they do loose their financial rights when initiating judicial dissolution.
2. It appears that the Court of First Instance usually tends to confirm the decision of the arbitrators and to decide according to their recommendations. In only one out of the 26 cases did the court reject the recommendation of the arbitrators.
3. It appears from the decisions that the Court of First Instance tends to rule differently in similar cases. For example, in case number (97/71) the court asserted that the woman is not to be held at fault for leaving an abusive husband. In case number (97/50) leaving the marital house and filing a complaint to the police against the husband was not a ground for depriving the woman of her rights. However, in case number (96/239), involving similar circumstances, the woman was held at fault for the same reason. In the above cases the arbitrators also ruled differently.42
4. Decision (97/71) shows that some of Courts of First Instance based their decisions on a Supreme Court ruling. In this case the court referred to a Supreme Court decision (95/62) in order to reject the arbitrators’ decision which held the wife at fault for leaving the house after being abused. Although this appeared in just one case it is a mechanism that women could use in order to guarantee some rights.43
We should also look at the following decisions which shed light on the role played by arbitrators in issuing rulings. It appears that these decisions were based on the arbitrators’ personal conviction regarding the case in question. In case (97/115) the arbitrators decided to deprive the woman from her shari’e rights as the husband accused her of having relations with a stranger. The arbitrators based their decision on the husband’s claims without having any evidence.44 In another case the arbitrators decided to deprive the woman from her shari’e rights and held her at fault for demanding artificial insemination as a result of her husband’s infertility.45
The Shari’a Court of Appeal (SCA):
Of the 26 cases brought before the SCA in 1997, fourteen were initiated by husbands and twelve by wives. All of the cases were appeals against the Court of First Instance’s decisions (most of them upon recommendations of the arbitrators) to dissolve the marriage (tafriq), with each spouse paying or forfeiting financial due in proportion to the relative amount of fault attributed to them. None of the cases were appeals against decisions of the Court of First Instance to reject a suit for dissolution (tafriq) or to refuse their application for ‘discord and strife’. In case (97/16), concerning ‘confirming divorce’ that was published in 1997, the husband divorced his wife because the court refused his application for article 130 in the ground of ‘discord and strife’.46
The appeal grounds:
The grounds for appealing to the Supreme Court used by spouses were similar and included the following: objection to the decision of the arbitrators (concerning the establishment of ‘discord and strife’, concerning the decision on dissolution and concerning the allocation of fault), procedural matters concerning the court or the work and the role of the arbitrators. It is important to note that during the appeal procedure, spouses often introduced fresh claims against each other.
The claims used by husbands against wives include:
Claiming that the wife is not willing to consummate the marriage, and claiming the wife’s desire is for divorce rather than reconciliation.
The claims used by wives against their husbands include:
The husband is not fulfilling his marital duties, the husband left the house without shari’e or legal reason (sometimes for several months), polygyny (in one case), the husband pronounced a verbal divorce (awka’a a’alayha al-talaq), the husband abused his wife, the husband divorced her against her will, the husband had sexual contact with her (dakh’ala alayha) after the court decision was issued and she is pregnant.
The above claims are a small portion of the main claims used by spouses in filing a petition. The majority of the claims were procedural and many of the claims were concerning the role of the arbitrators. Besides rejecting the grounds for establishing ‘discord and strife’, the decision on dissolution (tafriq) and the decision on fault, the grounds for appeal used repeatedly in different cases are: the arbitrators took sides with the other spouse, they did not try to reconcile the spouses before deciding on dissolution, they did not listen to one of the sides, and they were not from the families of the spouses.
Some significant examples of the arguments used by women in order to defend themselves and obtain more rights include:
In one case where the husband accused his wife of disobedience and of filing a complaint against him with the police for abuse and obtaining a restriction order. The wife replied that she was ready to return but that the husband did not prepare a shari’e dwelling, and that she was manipulated into leaving the house.47
In case (97/151) (not included in the 26 cases), the husband asked for judicial dissolution (fasikh) arguing that his wife suffered from a kidney problem that affected her ability to fulfil her marital and domestic duties, and asked that the marriage be declared void (batil) and irregular (fasid), as he did not know about her disease before their marriage. In this case the wife replied that she had undergone a kidney transplant and she provided an official medical certificate saying that this transplant would not prohibit her from completing her duties: managing the house work, pregnancy and delivering babies.48
The Appeal Court’s decision: further details
In appeal cases initiated by the husband (14 cases):
a. Eight were rejected (57%).
b. Five were accepted regarding the husband’s demand for a reduction or cancellation of the payments ordered to the wife and regarding the amount of fault attributed to the spouses, but the husband’s appeal for the overturning of the decision concerning tafriq was dismissed (36%).
c. One was accepted regarding the husband’s demand for the overturning of the decision concerning the dissolution (tafriq) and his demand for a reduction or cancellation of the payments ordered to the wife (0.7%).
Among the five cases where the court accepted the husband’s demand for a reduction or cancellation of the payments ordered to the wife and regarding the amount of fault attributed to the spouses:
• The court returned a case to the Court of First Instance in order to clarify the amount of jewels and the clothes that the woman had to return to the husband. In this case the judge criticized the fact that the arbitrators did not clarify why they decided to deprive the wife of her shari’e rights.49
• The court decided to return a case to the Court of First Instance to clarify the amount of money the husband needed to pay in Israeli Shekels, and to give the spouses the opportunity to react to the decision of the arbitrators concerning financial rights before the confirmation by the court.50
• The court decided to cancel the decision of the Court of First Instance in relation to the duty of the husband to return clothes to his wife. The court argued that the decision is general and not clear, and decided to uphold the decision on the dissolution (tafriq) and the right of the wife to her deferred dower.51
• The court decided to revise the decision of the Court of First Instance and to release the husband from his obligation to pay his wife half of the deferred dower since she had given away her right. 52
• The court decided to revise the decision of the Court of First Instance and to oblige the husband to pay his wife half of her shari’e right because the arbitrators decided she bore half the fault. 53
• The court accepted the appeal of the husband regarding the dissolution (tafriq) and the financial rights due to a procedural problem.54
The above cases imply that even in cases were the court accepts the appeal of the husband concerning financial rights, it does not necessarily mean the wife will be completely deprived of her financial rights.
For the 12 cases that were initiated by the wife:
a. Four cases were rejected (33%).
b. Six cases were accepted regarding the financial rights granted to the wife and amount of fault attributed to the spouses, and refused in relation to the dissolution (tafriq) (50%).
c. Two were accepted in relation to the dissolution (tafriq) and the financial rights (17%).
a. Considering the 4 cases that were rejected:
• The case was rejected because the Court of First Instance had already granted the woman her rights.
• The case was rejected due to a procedural problem.
• The court rejected the wife’s arguments that challenged the decision (that he had divorced her before filing in court, he had sexual relation with her after the dissolution decision and that she was pregnant).
• The wife failed to convince the court that there was no ‘discord and strife’ and failed to prove the failure of the arbitrators to comply with the procedure.
b. The six cases (that were accepted in relation to the financial right granted to the wife and the amount of fault attributed to the spouses, and refused in relation to the dissolution) were returned to the Court of First Instance or changed to the wife’s benefit because the arbitrators did not clarify why they held the women to be at fault, why they had decided to deprive her from her rights without holding her at fault, or because the reason they used in order to hold her at fault was not legitimate.
c. In the two cases where the Court accepted the appeal of the women against the dissolution decision, it was due to procedural problems in the initial decision.
The establishment of ‘discord and strife’ (nizaa wa shiqaq)
The grounds used for establishing ‘niza wa shiqaq’ were wide and included different reasons. While many of the arguments used by the spouses in order to challenge the establishment of ‘niza wa shiqaq’ were considering who to hold at fault, the judge had asserted several times that the consideration of the question of who to hold at fault does not imply that there is no ‘discord and strife’ but the opposite.
In decision 97/16, the qadi had referred to the book of Sheikh Mohammed Abu Zahra that asserts, “If one of the spouses claims to be injured (darar) by the other side and fails to prove it then the qadi must appoint two arbitrators.” The qadi further asserts that the law 130 in this case does not talk about establishing injury but establishing ‘discord and strife’.55 Different decisions assert that the establishment of ‘discord and strife’ are based on the conviction of the Court of First Instance’s judge, as he is the one who meets the couple and builds an impression from their behaviour with each other, and that no evidence is needed for the establishment of ‘discord and strife’.56 However, the judge has to try to reconcile the two spouses before he can establish the existence of ‘discord and strife’.57 All the petitions that challenged the establishment of ‘discord and strife’ were rejected based on the above ground.
The role of arbitrators:
It is difficult to challenge the decision of the arbitrators in the Supreme Court. The only cases where arbitrators decisions were challenged were when they failed to comply with formal procedure (Al-osol wa al-ahkam) of article 130. For example, a number of cases were challenged where the arbitrators had not clarified why they deprived the wife of her rights or why they had decided that she was at fault. In other instances the arbitrators had ruled that the husband was at fault but decided to deprive the wife of her dower, or where they did not cooperate in their work together. The qadi commented that the court can reject the conclusion of the arbitrators if they did not follow the osol (procedure), i.e., if they did not try to reconcile the couple, they did not decide who is to be held at fault, or if they did not meet one of the spouses, etc.58
In only two cases did the qadi decide that the arbitrators’ decision regarding who is to be held fault was incorrect.59 The decision of the Appeal Court referred several times to the role of the arbitrators saying, “The work of the arbitrators according to article 130 is judicial. They have the same judicial authority as the judge. Arbitration is judicial work. They have the authority to judge according to article 130. They had the right to invite the two sides in order to bring forth their arguments and the freedom to reconcile them, if they fail to do so, judicial divorce (tafriq or mokhalaa) can be implemented after deciding who is to be held at fault. The arbitrators’ decisions are final and are not subject to appeal if they comply with the procedure of article 130. The judge has to rule according to the arbitrators’ decision, because the decision is theirs.”60
From the decisions of Shari’a Court of Appeal we can draw the following conclusions:
1.The financial rights of the wife:
The Supreme Court’s decisions have guaranteed the wife her shari’e rights in most of the cases. The right of the wife to have her deferred dower was emphasized by the judge especially in those cases were the arbitrators in the Court of First Instance decided that she was guilty without giving reasons or where they had deprived her from her rights without declaring that she was guilty. In decision 97/161 the judge said:
“The right for the dower is grounded in the marriage contract, depriving the wife of her dower should be based on a legal and shari’e reason. Disobedience (al-noshuz) does not deprive the wife of her right to the dower but of the maintenance.”61
2.The arguments used:
The arguments used by spouses in the Supreme Court were mostly concerned with questioning the role of the arbitrators. This implies that the two spouses were able to shift between different arguments in order to negotiate their rights.
3.The role of the arbitrators:
Arbitration is an institutional manifestation of customary norms. The difficulties in challenging the arbitrator’s decisions strengthens the role of customs in the shari’a court.
The dower is one of the basic issues debated in the petitions concerning judicial divorce on the grounds of ‘discord and strife’. The right of women to dower, and the duty of the husband to pay it, is the core issue that constructs gender relations between spouses under the Muslim Family Law. “The fact that the concept of a shared matrimonial regime is absent in law has far reaching impact on the actual dynamics of marital relations.”62
The spouses’ relationship informed by rights and duties, is a hierarchical one where men are constructed as superior, the providers and the protectors of women. Consequently women are inferior and need protection. Whenever the husband does not fulfil his duties as the provider, the woman may approach the patriarchal court system and bargain for her rights, sometimes using the very terms that construct her as inferior.63 This practice is what Kandiyoti refers to as ‘patriarchal bargaining’: when women bargain inside a patriarchal system to obtain their rights, while at the same time giving up other rights.64 However, for most women this is the only system where they can obtain some rights in a male dominated society. The financial rights granted to women in the shari’a courts are especially important for those who do not have alternative means to support themselves. The shari’a court in this case provides the only frame of reference which women can use in order to obtain some rights. I would argue that because it corresponds to their reality, here is where its power lies. Women also may bargain in this patriarchal system using different arguments in order to obtain access to more rights, i.e., the right to terminate her marriage, in addition to financial security.
The above court cases reveal different realities faced by women inside the shari’a court. The status of women in the shari’a courts is not immutable or fixed but informed by several factors and by the dynamics between them. To look at the textual analysis of the OLFR, and the patriarchal relationship implied within it, is not enough to understand and study the status of women inside these courts. The legal text cannot be divorced from other factors that play an important role in the way they affect women. In the above cases we can see how women as well as men tried to use different arguments to negotiate their rights, and to move between the space available to them in the court. For example, men in a few cases have tried to use the patriarchal structure of gender relations in the classical family laws to their benefits, such as the duty of women to obey their husbands and not to leave the marital house, although these claims were not accepted in all cases. In other cases spouses used arguments based on procedure in order to get more rights.
Various factors could also affect women differently. We will also look at some of the factors that the above-mentioned petitions revealed:
1. The Secular law:
The effect of secular law on women’s lives is very contested in the literature. According to Layish, the ban on polygyny and on divorcing the wife against her will “upset the traditional balance, anchored in Islamic law, between the rights and the duties of the spouses.”65 However, the above cases reveal that it is not so, as the ban on divorcing a wife against her will brings men to use other means (in this case the application of article 130) to negotiate their interests within the same patriarchal system that constructs their rights and duties, and thus their gender relations. It proved difficult to examine other aspects of the effect of secular law on women’s life as none of the decisions above refer to secular law. (In one case a women had mentioned the fact that her husband had a second wife, but the judge did not comment on this issue when he issued his ruling).66
In order to get a better understanding of the status of women inside the shari’a court we should look at other divisions such as class issues, which may affect women differently. In the cases of judicial divorce, the issue of dower, the most debated point in those cases, could affect differently the women from the lower classes who do not have other means to support themselves. Other divisions such as age and education could be crucial in those cases.
3. The role of the arbitrators:
The strong position of custom inside the shari’a court, as manifested by the arbitrators, definitely had its effect on the status of women in the court, as they are not positioned equally within society. The arbitration council is not a neutral council, but instead operates within the context of domination where women are inferior to men, and thus their interests are more likely to be dismissed during the arbitration process, and especially the reconciliation attempt. The character of the arbitrator and his attitude toward women could play a crucial factor in the decision taken. The above cases reveal different decisions issued by different arbitrators considering similar cases, some of them are even contradictory to Supreme Court rulings.
4. The role of the qadi:
The character of the qadi also plays an important role in the decisions issued especially due to their central role in establishing ‘discord and strife’. The above decisions assert firstly that the establishment of ‘discord and strife’ depends on the conviction of the qadi, secondly that this decision cannot be challenged by the Supreme Court and thirdly that the qadi had to try to reconcile the spouses before appointing arbitrators. The wide grounds for establishing ‘discord and strife’ (that the above cases also reveal) does not necessary imply that women will certainly have access to divorce, since many of the decisions depend on the personal attitude of the qadi, especially when referring to the fact that most qadis in the shari’a court in Israel lack legal and shari’e background.
As mentioned above the status of women inside the shari’a court is informed by several factors and by the dynamics between them. This does not imply that women as a group do not suffer from discrimination inside the shari’a court, but the opposite, as their position and positioning in the society is a factor in the decisions issued in a male dominated institution. However the status of women inside the court is not a fixed and immutable one. This study has tried to reveal the different realities of women inside the court.
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