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The problem with 'Sharia Court' is the 'Sharia' and not the 'Court'

Reader comment on item: Accept Shari'a in the West?

Submitted by Prashant, Aug 4, 2018 at 12:03

Dear Dr Pipes, I think if all involved parties in a dispute agree to abide by a certain body of law other than the constitution, it may not be advisable for the government to interfere. For example, if a man chooses to live in a consensual polygamous relationship with two or more women in the privacy of his home, for the most part state cannot do much about it. Similarly, if a family agrees on passing more of its wealth in inheritance to its male heirs and less to the females and no one objects, the State might frown about it but may choose not to interfere.

A parallel Sharia court system (I am not advocating it) might exist in a society because the actual legal system is too slow and/or too expensive. Even in the US we have heard about agencies that try to resolve conflicts through mediation. Sharia can be one way to dispute conflicts among people who agree to believe in the it (once again, I am not advocating Sharia as an acceptable body of law). Sharia courts, in the Western nations, might exist and survive among Muslims because they are cheaper than the prevailing formal legal systems. There have been many examples where non-Muslim people go to unrecognized Sharia courts for conflict resolution. It is another story that in India only Islamists offer parallel court systems and no other religion offers this kind of services (ref 2).

This provides me a segue to the main topic of my message. The problem with Sharia Court is not the Court but the Sharia. Human society is continuously evolving and if a body of law does not change with time, it is likely to get outdated and be abandoned by the people. Recently a situation arose in India where the State High Court in Mumbai ruled in favor of a Muslim woman who demanded share in the marital property upon her divorce (ref below). In India, wrongly but constitutionally, people belonging to different religions can define and govern their marriages according to their religious laws. Muslim marriages are based on Sharia inspired Muslim Personal Law (MPL). MPL does not guarantee that a woman should get alimony (called 'maintenance' in India) and a share in the marital property in the case of a divorce. Indian civil law that applies to all religions uniformly is evolving continuously as the Indian society is evolving and is continuously moving toward more equity in the gender related laws. This is due to this reason that more and more couples are choosing to register their marriages under the civil law instead of religious laws. It is under this trend that the Muslim woman demanded 'maintenance' and property-rights on dissolution of her marriage and the High Court ruled in her favor. In simple terms, the Indian High Court categorily stated that the civil law can over-rule Sharia even in a situation where Sharia was constitutionally allowed.

My long standing position is that rest of the world needs to question Islam firmly, politely, and relentlessly. And this process should not be according to the Islamic sensibilities and standards; it should be under our commonly accepted sensibilities and standards. In this questioning no privilege should be granted to it in the socio-political matters. And no privilege should be taken from it when the matter is spiritual. The sharia laws do not hold much water in the modern context. Today more and more women are getting educated and making good wages. If we combine the polygamy laws under sharia with dissolution of marriage laws, we will run into hilarious situations: a man can retire young and stinky rich and if he manages to marry four wage-earning wives, divorces them by repeating the word talaq three times, and does not give them a penny in alimony or marital property! Even in the ancient times, it is said that Muhammad's wife Khadija was a successful business woman. Luckily his marriage with Khadija did not end in a divorce. But if Muhammad's marriage with Khadija had fallen into bad times, would he have been able to keep all her wealth and all the wealth that they acquired post marriage?

What we all, Muslims and non-Muslims, have to realize that Sharia laws may be suited for their times but unless they are revised every few years, they have no validity in modern times. And even in the ancient times, there is no guarantee that the Sharia laws were well thought and well debated when they were promulgated.

ref: Indian Courts decision favoring Muslim women's rights in a divorce. https://www.indiatoday.in/india/story/muslim-women-can-be-granted-divorce-maintenance-by-courts-says-bombay-high-court-1304921-2018-08-04

ref2: https://www.telegraph.co.uk/news/religion/5876577/Non-Muslims-turning-to-sharia-courts-in-Britain-to-resolve-disputes-claim.html

Submitting....

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