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The Case of Guardianship in Marriage in Conceptual Debates and Real Life Stories

Glimpses at Discrimination Against Women in Yemeni Laws

A translated version of this piece is Available in: العربية (Arabic)

Even a quick look at Yemeni legislation affecting women reveals aspects of their derogated status. Among these is the assessment of a women’s wergild, ‘blood money’, as worth half of a man’s, the lack of equal status of a woman’s testimony vis-à-vis a man’s, and denying a woman her autonomy and therefore giving significant power to a male guardian, who determines her fate in the most delicate life matters, including marriage.

Despite the law’s lack of fairness towards women, Yemeni courts have recently witnessed a remarkable increase in cases brought by women to recover some of their rights. This highlights an awareness of and desire for their rights that cannot be ignored. In this article, I address one of the rights that Yemeni law deprives women of under the pretext of men’s protection and caring for women: specifically, a woman’s right to marry the man she chooses. Yemeni courts have recently seen cases of ‘guardian’s objection’ (Adl Al Wali), which occurs when a woman resorts to asking a judge to allow her to marry when her guardian refuses to give permission. These are cases that the personal status court sessions see on an almost daily basis.

Juristic disagreement and space for further jurisprudence reasoning

In this context, jurists define the term ‘guardianship’ as a legitimate authority given to its owner over the right to establish contracts and enforce them without being dependent on anyone else’s authorization. Guardianship is divided into guardianship over money – which is not our topic here – and guardianship over oneself, which includes the ability to establish a marriage contract without the need for anyone else’s permission or approval, which is what this article deals with.[1]

Guardianship in marriage is not a definitive issue, without room for renewal and diligent arguments, but rather a controversial one which Islamic jurists of various sects have worked on and have varied opinions towards. Even though the majority of Maliki, Shafi’i, and Hanbali jurists claim that only a guardian is valid for marriage, they differ on the terms of the guardian and whether he is a condition or a pillar of marriage.[2] However, the Hanafis interpreted in the entirety of their imams’ opinions that the guardianship of an adult, mentally fit woman should lie in her own hands, and that she is empowered to proceed with her marriage contract with the man she loves.[3] They have drawn on many verses that attribute the act to the woman and not to others, among their evidence was the quranic phrase: “When you divorce women and they have completed their waiting term, do not hinder them from marrying other men if they have agreed to this in a fair manner. That is an admonition to everyone of you who believes in Allah and the Day of Judgement; that is the purist path for you, for Allah knows what you do not know. ” (Surah Al-Baqara , verse 232.)

The key aspect concerning the Hanafis’ interpretation is that: “Marriage is assigned to women, which refers to attributing the act to its perpetrator and the conduct to whoever initiates it, and it requires the women’s validity to initiate the marriage contract themselves without resorting to any permission.”[4]

They cited hadiths, including what the Muslim scholar Muhammad al-Bukhari and Muslims on behalf of Ibn Abbas narrated – that the Prophet, peace be upon him, said: “The widower is more entitled to herself than her guardian, and the maiden needs no permission.” The Hanafis consider this to be the doctrine of some of the senior companions of the Prophet (as-sahaba), such as Aisha bint Abi Bakr, who contracted the marriage of her brother’s daughter, Abd al-Rahman, when he was absent in the Levant, as well as Ali Ibn Abi Talib, as it has been narrated that “a woman contracted the marriage of her daughter with her consent, and the guardians came and fought with her and complained to Ali, may Allah be pleased with him, yet he permitted the marriage.”[5] The Hanafis also referred to supporting hadiths that are not mentioned here.

And by comparing guardianship over oneself with guardianship over money, they said that “the principle is that everyone who conducts their financial affairs can do the same in other matters without the need for guardianship.”[6] This means that a mentally fit adult woman, whether a virgin or not, is entitled to conduct herself as she pleases. As for guardianship over a minor or a mentally ill woman, the Hanafis call it an “imperative guardianship”,[7] because it does not acknowledge the legal agency of a minor These are reasonable grounds for guardianship, as the purpose is for the parents to protect a minor or a mentally unfit relative. As for the mentally fit adult woman, she is free to act as she pleases, in charge of her conduct, autonomously bearing all her decisions and the consequences of her actions.

Although the majority of Islamic jurists and founders of prominent sects present certain Islamic scriptures as evidence to support their claim that male guardianship over women should be indisputable, other diligent Islamic jurists and founders of other prominent sects have discussed the conditions and qualities of the guardian and the limits of his guardianship. For example, but not limited to, the Hanbali Ibn Taymiyyah believes that a woman’s acceptance is an obligation on which the validity of the marriage depends, and that the guardian only contracts the marriage for her benefit, not his own, and thus she has the right to accept or reject it.[8] It is understood from the conditions (ishtiratat) that Ibn Taymiyyah sets for the guardian that the absence of the woman’s permission, the absence of the guardian’s concern for her welfare, and the absence of his moral capacity are matters that undermine the validity of his guardianship. Hence, the matter is interpretative and jurisprudential, with no conclusive statement, and it is therefore adaptable according to the time and the situation, and for the benefit of humankind according to the legal philosophy. And there is no doubt that our time differs from the middle and ancient ages.

ِArtwork by Rashad al-Samei

Legal gaps that allow for violations of women’s rights

Although the Yemeni legislator originally justified guardianship for the purpose of protecting minors, the guardianship is not used on these grounds. Guardianship was intended for the purpose of protecting children, in a country where girls and boys suffer from the marriage of minors, which represents another problem we are unable to discuss fully here. Instead, we find that guardianship is being applied literally and practically to adult women who do not need to have a guardian to contract their marriage.

Although Yemeni law gives women the right to file a lawsuit to hold the guardian’s objection in case her guardian refuses to contract her with a competent man, women pay a high price for filing these lawsuits before the courts. They face their families and society’s negative view of them, which despite the existence of this right in the law, considers taking such a step a form of perversion and insanity, and not a legal claim that seeks decency and the right to marriage to whomever one chooses, which is guaranteed by all Abrahamic religions.

The crimes that follow these lawsuits bear witness to the injustice and unfairness of the law towards women, as many of these women are assaulted, imprisoned and forcibly married to men who were imposed by guardians without the women’s consent. At the most extreme, some women were killed. Samiha al-Asadi’s blood is a witness to this, as her brother killed her with a scalpel in front of a judge in one of the West al-Amanah courtrooms in Sana’a on 4 September 2018, in response to her filing a guardian’s objection suit. Despite two years having passed since the incident, Samiha’s killer remains free from any legal consequences. Rather, the judiciary amended the appeals judgment against her brother and canceled the death sentence. Here, Samiha’s murder was no longer treated as first degree murder in its punishment, but rather resolved by requesting the convicted brother to pay a penalty, blood money, to Samiha’s family, which is also his family. Furthermore, the law gives first degree relatives the right to dismiss the case altogether by granting them the right to pardon the murderer. Indeed, during the times court was in session to address Samiha’s case,  her family and tribe protested consistently before the court’s gates to pressure the judiciary to release her murderer, and this is what did happen later. Samiha is not the first nor the last case, except that killing her inside the courtroom caused an uproar that occupied public opinion. This interest faded, especially after the son was pardoned by his family. His family and tribe considered his crime an attempt to avenge his honor and reputation, therefore they granted him a pardon.

No lawyer, regardless of their experience and ability, or any judge, no matter how fair they are, can deviate from legal texts, such as Articles 15 to 23 under Chapter Two concerning guardianship in marriage, which are regulated in the Republican Decree on Law No. 20 of 1992 regarding personal status. Therefore, we often resort to what we can achieve in terms of fairness for women through peaceful solutions to find the greatest degree of consensus between all lawsuit parties. Hence, laws constitute obstacles that cannot be overcome.

At the beginning of my legal career in 2004, I worked on the case of a woman in her early thirties who was explaining her legal issue to the personal status judge while she was at the height of her anger, as her two brothers on the father’s side made her a marriage contract without her knowledge and received the dowry themselves while she was living, far from them, with her mother following the death of her father. Her paternal brothers, whom she knew nothing about and did not bear any financial or moral responsibility towards, suddenly appeared, each on his own, asking her to complete the wedding, only to be surprised that each of them contracted her with different men through two separate contracts. Not wanting either of the two contracts, she resorted to the court to demand the annulment of both contracts. Although the case seems like an unbelievable tale, when I returned to the Personal Status Law in my attempt to solve this dilemma, I found that the law has put in place temporary solutions instead of eradicating the problem from its roots, as the text of Article 16 states the following: “The guardians of the marriage contract are the closest to the woman in the following order: the father, then the son, then the brothers, then their sons, then the uncles, then their sons, then the paternal uncles, then their children as well, and those whose kinship is presented to a father and mother, and if there is more than one male within the same degree of closeness, they all have the right of guardianship. Also, those who precede them could have the right to guardianship with the woman’s consent and it becomes valid, meaning the contract of the one following is void, and if the contract is made for more than one person at a time, and this occurs, then the contract shall be void; unless one of these contracts is satisfied, it is valid and another is void.”

Thus, the article gives validity to the marriage contract signed before any other when the signatory guardianships are of the same familial hierarchy, which applied to this case. On top of these legal obstacles, she was not able to stand her ground and testify that her marriage was against her will, because of the difficulties she faced to bring witnesses to support her case against her two brothers and also because of fear of the brother’s retaliation in case she won the case. In the end she was forced to stay married as the first contract remained valid while the second was annulled.

This is a very strange article that does not exempt the legislator from its consequences, if they manage to find solutions to the effects without addressing the real problem in terms of its causes and motives. The real solution lies in a woman contracting her own marriage, similar to her female counterparts in many other Arab and Islamic countries, instead of being contracted by her brother – or her son, who she nursed and raised to become a man who controls her right to marry under the pretext of guardianship. I add to all of the above that the text of the article in its context does not consider the woman’s consent to be a condition, which undermines the eligibility and will of women, and binds their destinies to the moods and desires of their male relatives.

Day-to-day life and grievances affecting women under guardianship

In one example that occurred five years ago, I took up the case of a woman who was claiming her right to the custody and maintenance of her 10-year-old child, and indeed the court ruled in her favour in accordance with the law – which is fair in this area and grants women the right to custody of their children. But then the father made a contract for his underage daughter with his nephew, and thus managed to overturn custody, when he took advantage of one of the visits in which he was allowed to see his daughter, and took her to the home of her to-be husband. In doing so, he suspended the custody provision, because the child’s guardianship was transferred to her husband. Thus the execution file of the custody ruling was closed because it was nullified, as penalties do not apply except through a clause. The marriage contract of the minor does not require punishment in our country.

In another case of a married woman, her brother summoned her to his home to inform her that he had discovered that her husband was not of an honorable lineage. She was asked to divorce him, and when she refused, her brother tied her up with chains and took her gold by force to return it as a dowry to the husband, who was called by the brother and told falsely that his wife wanted a divorce. The husband repeatedly tried to meet his wife as a condition of divorcing her and to confirm her brother’s claim, but was not able to do so having been told that she did not want to meet him and that she insisted on the divorce – which was eventually granted. After less than a month of her divorce, the woman was able to flee her brother’s house, telling her husband that what happened was not with her consent, and so both of them sought help from the judiciary and filed a lawsuit against the guardian’s objection, so that they could contract their marriage again.

When I took up this case after the issuance of the primary ruling at the end of 2015, which ruled to reject the guardian’s objection for the husband’s incompetence, I appealed the ruling based on the law that restricted the husband’s competence to morals and religion only, and did not refer to the ugly societal classifications of the caste system and hierarchies based on people’s family lineages and origins. Although I built my arguments on this point of the law, and the husband’s efforts to provide certificates proving the status of his family lineage before the court, the court dismissed my appeal. Yet, despite the difficulty in this case and all the pressures that permeated it, it was resolved through one of the court’s judges known for his fairness and justice. He issued his judgment in 2016 accepting the appeal and completing the marriage contract by the president of the court as the woman’s guardian, based on her brothers’ refusal of the contract.

My article includes simple evidence that is only a drop in the ocean of the ​​real suffering of Yemeni women as a result of these flawed and shameful laws that rob women of their free will and their right to marry, leaving them hostage to the approval of their guardian, who is supported by the law. The law is in need of permanent and continuous amendment, as Judge Benjamin Cardoso explains: “The law, like the traveler, must be ready for tomorrow. It must have a principle of growth.”[9] However, changing the law in a context like ours remains very difficult. Rather, any attempt to reformulate faces criticism and rejection, as a kind of blasphemy that delves into the forbidden.

 

 

Fairoz al-Garadi is a lawyer in the Appellate Courts, a member of the Arab Lawyers Union, and trains others in the fields of law and human rights.

 

 

 

 


[1] Al-Kasani: Ala Al-Din Bin Masoud, 587 AH Badaa’a Al-Sanai’i fi tartib Al Sharaa’a, first edition, Beirut, Dar Al-Fikr, 1417 AH / 1996

[2] See the summary of the imams’ opinions on the subject of the ruler in Abd al-Rahman al-Jaziri, Al Fuqh ala al mathaheb al arbaa, Part IV, Dar al-Hadith, Cairo, 2004 CE, p. 45.

[3] Ibid., p. 40.

[4] Saadi Jalabi: Saad Allah bin Isa Al-Mufti, d. 945 AH, Saadi Jalabi’s footnote, with a margin of explanation of Fath Al-Qadeer, Beirut, Dar al- Fikr, second edition.

[5] See for detailing Al-Hanafi’s inferences in Wahba Al-Zuhaili, Al-Fuqh Al Hanafi Al-Maysar, part 2, Dar Al-Fikr, Damascus, 2010, p. 37 and beyond.

[6] Op. cit., p. 39

[7] Ibid., Pp. 39 and 40.

[8] Taqi al-Din Ahmad ibn Abd al-Halim al-Harrani al-Dimashqi al-Hanbali, a collection of fatwas of Sheikh al-Islam Ibn Taymiyyah, amended and published by Amer al-Jazzar and Anwar al-Baz, Dar al-Wafaa, Cairo, p. 30

[9] Cardozo, Benjamin Nathan. The Growth of the Law. S.l.: S.l., 2010.

Fairoz Al-Garadi

is a lawyer in the Appellate Courts, a member of the Arab Lawyers Union, and trains others in the fields of law and human rights.
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