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status of women in Muslim countries, which is ruled by shariah, differs in many ways from

one country to another. On any given issue, some national personal status codes grant more

rights to women or better protect their interests than other codes.

According to feminine NGOs working in the field of Muslim womens rights, if Governments

accepted to apply the more favourable rules on any Islamic family law issue (designated asthe best practices), this would contribute significantly to the reform of family law within

the religious framework, bringing it closer to contemporary international standards.

The unicity of shariah within the diversity of rites

These differences between Muslim countries in the rules of applied shariah do not result

from a drift by Muslim jurists operating in different national settings. The founders of the

major legal schools of thought opted for this policy of diversity in the early days of Islam, and

had it ratified by the first caliphs and their successors.

Thus, when Malik ibn Anas prepared, at the request of the caliph Abu Jaafar Al Mansur, his

major compilation of Muslim law known as Al-Muatta, the caliph wanted to use this workas the reference in Muslim law, in all the territories under Caliphate rule. But, Malik

disagreed, on the grounds that each major Muslim community in the Caliphate already had its

own rules and methodology in the field of fiqh, and should be left free to develop its own

jurisprudence in this domain.

Similarly, the founders of the four main schools of Shariah in the Sunni tradition (Abu

Hanifa, Malik ibn Anas, Shafii, Ibn Hanbal), insisted, in their teachings, that their views

should not be considered as final or binding on all Muslims, in all regions of the world and for

all times. If a different legal school of thought presented a better interpretation of a rule, it

should be given due consideration. This broadmindedness was a characteristic of the juridical

culture of the times, and resulted in a wealth of output by Muslim jurists, over a period of

several centuries, until the political authorities decided to put an end to all activities of

juridical ijtihad in the 10th century.

Muslim jurists pride themselves, today, on the diversity of rules developed by the various

Islamic legal schools, describing it as a blessing from Heaven. According to them, all these

rules comply with Quranic prescriptions and with the teachings of the Sunnah, despite their

differences.

But, this diversity of interpretations adds to the complexity of the tasks of the associations of

defense of womens rights, when they must handle cases in Muslim legal environments asdifferent as those of Saudi Arabia and Morocco, for example, even though both claim that

they merely apply shariah.

Two contrasted examples: Saudi Arabia and Morocco

According to a report submitted in 2007 by the Saudi association Women for reform to the

UN Committee for the elimination of discrimination against women (CEDAW), Saudi

women are confronted in a routine way, in their daily life, with great difficulties, due to the

following factors:

There is a total segregation between the sexes, with negative consequences for women, in allaspects of their life;

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During their entire life, Saudi women live under the tutelage of a male guardian, be it a

father, a husband or a blood relative;

Without the permission of her guardian, a woman can neither go to school, nor obtain

medical care, nor marry, nor travel abroad, nor manage a business, nor do anything of

significance.

Saudi authorities explain, however, that Shariah has defined a different set of rules for males

and females. Consequently, by applying to each of the two sexes the appropriate Shariah

rules, they do not violate anyones rights, whether male or female. Shariah merely presents a

conception of human rights which differs from that of Western countries.

In contrast, in Morocco, the Personal Status Code of 1957, adopted shortly after

independence, was revised in-depth in 2004, following several decades of struggle by

feminine associations, in order to reflect the evolution of Moroccan society over the past half-

century.

The new Family law completely redefined the legal status of women within the family andsociety, bringing it considerably closer to current international standards. Among other things,

it makes the family the joint responsibility of both spouses, rescinding the wifes duty of

obedience to her husband. It allows women to be their own guardians, and raises the

minimum age of marriage for women to eighteen years. It puts prohibitive restrictions on

polygamy, by requiring the consent of the first wife, the notification of the second wife of the

existence of the first one, and a judges consent to the second marriage which may be

granted if he is satisfied that the husband will grant equal status to each wife, in every respect.

The Law makes polygamy grounds for divorce by the first wife, and promotes the use of a

marriage contract to exclude the possibility of a second marriage by the husband. It puts

repudiation under strict judicial control, and requires an equitable distribution of the couples

assets before a divorce can be final.

The Moroccan ulamas and jurists associated with the revision of the Code explain that all its

provisions were based on an attentive and meticulous reading of the Shariah, in all its

complexity, taking into account the best practices in use in other Muslim countries.

However, following this recasting of the Personal Status Code, the Moroccan authorities

progressively withdrew, one after the other, the reservations they had previously expressed

about the application in Morocco of some provisions of various international Conventions

dealing with womens rights, which they had earlier considered as possibly incompatiblewith religious prescriptions.

The better practices strategy

Confronted with such a range of interpretations in the rules applied to the status of women in

various Muslim countries, feminine NGOs have understood the vanity of challenging any of

these interpretations. Thus, although Saudi Arabia and Morocco differ in significant ways in

their interpretation of Shariah, the authorities in both countries are fully convinced that they

faithfully apply its prescriptions.

Feminine NGOs such as Collectif 95 Maghreb-Egalit (which comprises the main feminineassociations of Morocco, Algeria and Tunisia) or Sisters in Islam from Malaysia have

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studied these issues in-depth, and come up with a new strategy to achieve progress in the field

of Muslim womens rights:

If all these different rules are equally valid in the Shariah, and if some of them grant more

rights to women or protect their interests better, isnt it these rules (designated as the best

practices in Islamic family law) which should be applied in Muslim countries, in thebeginning of the 21st century, in preference to the rules which are less favourable to womens

rights? Why should women pay the price for these differences in interpretation, which clearly

are the acts of men?

In support of this last point, NGOs observe that, although the Personal Status Codes of

Muslim countries are based on Quranic prescriptions and Sunnah teachings, they are

periodically revised (Egypt 2000, Mauritania 2001, Morocco 2004, Algeria 2005). Since

the rules presented in these codes were periodically changed, isnt this conclusive evidence

that many provisions contained in the codes of family law reflect man-made choices, which

have nothing to do with religious prescriptions?

Representative Best practices

In order to illustrate what the best practices entail, the Malaysian NGO Sisters in Islam

(SIS) drew up the following listing of what it considers as representative best practices,

regrouped by category, based on the provisions of current family laws in the Muslim world.

Age of marriage: 18 years for boys and girls (Morocco)

Assent of the spouses: Each of the two spouses must explicitly and freely express his assent

to the marriage (Tanzania, Tunisia, Morocco, etc)

Wali (Tutor): In Tunisia, the would-be spouses can contract their marriage with no need for a

wali. In Cameroon, Fiji, Gambia, Turkey, Uzbekistan, Kyrgyztan: no wali is necessary. In Sri

Lanka, Bangladesh, Pakistan (under Hanafi rite): no wali is necessary for Hanafi women who

reached puberty.

Witnesses to the marriage: In Senegal, two adult witnesses are required, one for each spouse

(with no sex specification for the witnesses).

Polygamy: In Tunisia, it is prohibited. In Morocco, the 2004 Code established severe

conditions, including the wifes right to specify in the marriage contract, if she so wishes, a

provision to prohibit a second marriage by the husband

Nushuz (disobedience of the wife): In Turkey, Indonesia, Tunisia, there is equality between

the two spouses in decisions concerning family life matters.

Divorce: In Tunisia, divorce can only be pronounced by a judge. The two spouses can claimthe same grounds for divorce. In Indonesia, the husband, married under Muslim law, must

notify in writing the Shariah Court of his intention to divorce. The six grounds for divorce

can be claimed equally by the spouses. A reconciliation procedure must be carried out. If it

fails, the divorce is pronounced by the Court and is final.

Alimony: In Tunisia, if the husband is at fault, the divorced wife receives alimony whose

amount is determined based on the standard of living to which she was accustomed during

marriage. In Turkey, the spouse which is least at fault can claim reasonable compensation,

paid either monthly or in a lump sum.

Custody of the children: The Court can entrust the custody of children to either one of the

parents, taking into account the childrens best interests (Tunisia, Cameroon, Republics of

Central Asia).

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Impact of the application of the best practices:

According to feminine associations operating in this field, the adoption by Muslim countries

of the best practices in Islamic family law could have a considerable impact on the daily life

of millions of women. It would eliminate some of the excesses to which the authorities go in

their interpretation of the rules of shariah, at the expense of womens rights, such as theprohibition of women driving of a vehicle; the strict segregation between the sexes in public

places, hospitals and schools; the obligation to wear clothing of a particular type such as hijab,

niqab or burqua; or even, sometimes, the prohibition to work outside the home

The adoption of the best practices would also pave the way for a redefinition of the legal

status of women in the Muslim world, giving them the juridical means to protect themselves

from abuse in their daily life, whether under the form of ill-treatment, marital violence,

repudiation, polygamy, discriminatory practices or sexual harassment in the workplace

Bibliography

- Al_Qaradawi, Yusuf.Assahwa al_Islamiya, Cairo, 1991

- An-Naim, Abdullahi A., ed.Islamic Family Law in a Changing world, London, Zed Books,2002

- Women for Reform (WFR). Shadow report from Saudi Arabias ad hoc group of women to

CEDAW, 2007

- Saudi Arabia. Official Government Report to CEDAW, 2007

- Morocco. Family Law Code, 2004

- Collectif 95 Maghreb-Egalit. Guide to equality in the family in the Maghreb, 2003

- Collectif 95 Maghreb-Egalit. One hundred steps, one hundred provisions for an egalitarian

codification of Family and Personal Status laws in the Maghreb, 1995

- Freedom House: Womens Rights in the Middle East and North Africa, 2005

- United Nations Development Programme (UNDP). The Arab Human Development Report

2005 Towards the Rise of women in the Arab world, 2006

- Sisters In Islam (SIS). Best practices in family law

- Sisters In Islam (SIS). Guide to equality in the family in Malaysia

- Rand Corporation. Best practices Progressive family laws in Muslim countries, 2005

- Women Learning Partnership (WLP). Best practices in family law