SHARIAsource

Translated, this short fatwā reads as follows: 

Number: 42

Can either Muslim Refi’i or his wife give away their child to a Christian for adoption, regardless of whether the marriage is dissolved or not?

Answer: No, it is not allowed.

17 September 1987

Deputy Mufti of Komotini

 (Seal and signature)

In Farooq Siddiqui v. Mst. Farzana Naheed,[1] the Federal Shariat Court of Pakistan (“the Court”)[2] considers whether surrogacy can be reconciled with Pakistani law and sharī‘a, and whether the law needs to be updated. The underlying case involved a Pakistani doctor living abroad who orally contracted with a Pakistani woman to serve as a surrogate, as his wife was unable to conceive, creating a “false drama of marriage” as a cover.[3] When the child came due, the surrogate refused to give the child to the doctor, and litigation commenced. The lower courts held the contract invalid and ordered the doctor to pay maintenance.[4] The Federal Shariat Court does not address the instant case specifically, but holds that surrogacy contracts, with the exception of “test tube babies,” are un-Islamic and void.[5]

[1] Farooq Siddiqui v. Mst. Farzana Naheed (2017), 2017 PLD (FSC 78) (Pakistan).

[2] As part of his project of Islamification of Pakistan, then-Prime Minister Zia created the Shariat Court with authority to decide whether Pakistani law is consonant with Sharia. Several justices are required to be Islamic law scholars. See Niaz A. Shah, Women the Koran and International Human Rights Law 101 (2006).  

[3] Supra note 1.

[4] Id.

[5] Id.

The parties, of Lebanese background, were married in Kuwait in 1973, though had moved to Australia in 1985 and maintained dual citizenship. In October 1998 the parties divorced Islamically through a local Islamic centre, then in November 1998 attended the Lebanese embassy and executed a power of attorney to allow their respective lawyers in Lebanon to proceed with the divorce application (and bypass the Australian legal system). These proceedings were not possible in Australia due to the maintenance of a mandatory one year separation period before divorces are granted. The divorce was subsequently granted in November 1998 in the Jaafarite Canonical Court in Lebanon, with the decree that neither party had rights or obligations towards the other. The husband subsequently remarried. 

The wife appealed subsequently applied for a divorce in the Australian courts under s 104(4) of the Family Law Act 1975 (Cth), stating that this outcome was a denial of natural justice. 

The case stemmed on the recognition of the Lebanese divorce on the grounds that the parties had no 'property of consequence' in Australia (it was in Lebanon, where the wife had initiated court proceedings against the husband) and that the parties sought to bypass Australian law.

This case was unsuccessfully appealed by the applicant in Taffa & Taffa [2012] FamCA 181.

Nurani v. Nurani was a case adjudicated by the Court of Appeal at Nairobi in 1982. The Court held it had concurrent jurisdiction with the Ismaili Council for Kenya, through its sectarian tribunal. Thus, this tribunal had the first right to issue a decision on issues arising from the couple's divorce since both the husband and wife had submitted to its jurisdiction. In this decision, the Court contextualized the role of the sectarian tribunal within the context of Kenya's pluralist legal system.

In TSJ v. SHSR, decided by the High Court of Kenya at Nairobi, the Court found that the Kenya Ismaili Conciliation and Arbitration Board did not have the jurisdiction to adjudicate upon a matter of divorce despite the fact that both husband and wife had initially submitted to its jurisdiction. The Court held that either it, or the Kadhis' Courts, could have exclusive jurisdiction in this matter.  

The Muslim Family Laws Ordinance, 1961 is promulgated by Pakistani President Mohammed Ayub Khan's administration. The Ordinance represents the post-1947 statutory reform in Muslim family law in the Indian subcontinent and is today in force in both Pakistan and Bangladesh. The Ordinance laid out the basic rights and obligations of a Muslim family, including provisions regulating the procedures for talaq and khul'.

Volume 2

A UK family court considered whether and how UK law recognizes a marriage conducted according to Islamic law that had not been accompanied by a civil law marriage. The husband contended that the couple was never married, and the wife—petitioning for divorce—insisted that they were. The two had signed an Islamic marriage contract (nikāḥ) accompanied by a ceremony abroad, lived together and had children together, and held themselves out as married for years both abroad and in the UK. The court concluded that, on those facts and considering the UK laws on marriage—as interpreted, for the first time, through the Human Rights Act 1998 and the best interests of the child—that the marriage was “void” or “voidable.” This determination meant that the couple was not validly married under UK law but that their union was also not considered a non-marriage. Instead, as a void marriage, their union was something akin to what Islamic law would label a “defective marriage.” The court had essentially concluded that, although a marriage was not properly concluded or registered according to the law, the steps taken toward one would in some measure be recognized by the law and entitle the wife to certain legal protections upon dissolution of the union. In this case, this meant that the wife was entitled to a decree of nullity from the court, and that the wife could take advantage of certain UK civil law remedies for maintenance and child custody upon dissolution.

The wife argued that the couple had a marriage ceremony in Damascus, and, should that Islamic ceremony not be legally recognized, that a valid marriage should be presumed because of the couple’s long cohabitation and public reputation as husband and wife. The husband argued that the couple was not present in Damascus at the time of the alleged marriage, and that they instead had an Islamic marriage ceremony at a flat in London. Accordingly, while the ceremony was religiously recognized as a marriage, it was not valid under English law. In its judgment, the Court ruled that where, as here, the only known or proven ceremony was one which might not have constituted a marriage under English law, then a marriage could not be presumed.

The Greek General Secretariat, Ministry of the Interior drafted a bill designed to prioritize Greek civil law over religious (namely Islamic) family law. This was due to concern about the rights of young Muslim minority women. However, the bill was never brought before the Greek Parliament.

Xinjiang, officially the Xinjiang Uyghur Autonomous Region, is a region in Central Asia and home to several ethnic groups, including the Uyghur, Kazakhs, Tajiks, Kyrgyz, in addition to a large Han Chinese population. In recent years, the conflict between Uyghurs and the Beijing government has intensified due to the government’s policies of mass surveillance, increased arrests, and a system of “re-education camps,” which reportedly held more than a million Muslim ethnic groups. The 2017 Regulation was introduced as providing legal justifications for the government’s mass detention policies on anti-terrorism grounds. It was enacted on March 29, 2017 by the Standing Committee of the People’s Congress of the Xinjiang Uighur Autonomous Region, the region’s legislature. Article 14 of the 2017 Regulation authorized the government to effectuate “education and transformation” through “individual and collective” education programs. Article 48 further authorized criminal penalties for violation.

In 1986, the Aga Khan IV promulgated a global Ismaili Constitution, which brought the social governance of the Ismaili community under one umbrella. It was envisioned as a document which could harness the best in individual creativity while creating an ethos of group responsibility. The global Constitution, amended in 1998, covers a range of topics including authority over the community, family and personal law, dispute resolution mechanisms, and the formation of institutions relevant to the community. 

University of Toronto

This 2013 case is part of an ongoing legal custody battle in Malaysia between a Hindu woman, Indira Gandhi Mutho against her former husband Pathmanathan Krishnan, who converted from Hinduism to Islam in 2009. In this case, the [civil] Federal High Court ruled that the conversion certificates of Gandhi’s children to Islam should be declared null and void because Krishnan had not converted the three children aged twelve, eleven, and eleven months to Islam in accordance with the Administration of the Religion of Islam (Perak) Enactment 2004. The Federal High Court also reasoned that the applicant’s rights were upheld through international rights and standards, and articles 11 and 12(4) in the Federal Constitution. Significantly, the Federal High Court also claimed that it held jurisdiction over the syariah courts on this matter.

Amendments to the Muslim Family Laws Ordinance 1961

In December 2021, the National Assembly in Pakistan introduced two amendments in sections 4 and 7 of the Muslim Family Laws Ordinance 1961. Both these amendments relate to Shia school (Fiqh-e-Jafaria). Under the first amendment a childless widow of a Shia husband is given inheritance right in immovable property. The second amendment clarifies the Shia law on talaq (divorce) by providing that the husband must pronounce Arabic words (seegha) in presence of two witnesses to make divorce effective. It further provides that the pronouncement of talaq (divorce) shall not be effective if it is done “jokingly or under anger, intoxication, insanity, duress or coercion of any kind”.

Both amendments provide that in case of dispute, the parties may have a recourse to “a court of competent jurisdiction or by approaching the Mujtahid-e-Alam from the panel maintained by the Council of Islamic Ideology.” Mujtahid-e-Alam is defined as “a juris-consult, religious scholar or doctor of Shia school of thought well versed with Shariah having international repute and of such recognition.” The decision of Mujtahid-e-Alam shall have a status of an award under the Arbitration Act 1940.

Contributed by Zubair Abbasi.

In response to the decision that the Federal (civil) High Court holds jurisdiction over syariah courts on the matter of legal custody in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & ORS (2013), Pathmanathan Krishnan successfully appealed his case in 2015 to the Civil Court of Appeals in Pathmanathan Krishnan v. Indira Gandhi Mutho & Other Appeals (2015). The Court of Appeals held that first, the Judicial Commissioner had no jurisdiction to determine the issue of the children’s conversion to Islam as the validity of the conversion of any person to the religion of Islam and status of whether a person is a Muslim or not was “a matter falling under the exclusive jurisdiction of the Shariah Court under section 50 of the Administration of the Religion of Islam (Perak) Enactment 2004.” Secondly, the court held that the learned Judicial Commissioner had “committed a grave error when he approached the jurisdiction issue” by venturing into the constitutional construct of the fundamental liberties.