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by Babette Francis, November 26, 2011

The majority of Muslims, moderate or Islamist, appear committed to the implementation of sharia law as evident in the Arab “spring”, which is turning into a miserable winter for women and minorities.

Even moderate Arab countries such as Tunisia will be governed by sharia, not to mention Libya where one of the first decisions of the National Transition Council was to reinstate polygamy and announce that the consent of the first wife is no longer required for the husband to take up to another three wives.

Why was this a priority when there are so many more urgent tasks for the NTC, such as pacifying the militias and improving hospital facilities to treat those wounded in the civil war? (Hillary Clinton where are you when your feminist ideal of “equality” of the sexes is most required?)

As there are demands from Muslim clerics in Australia for the implementation of sharia in family law, two cases from US jurisprudence illustrate how sharia is incompatible with Australian law, and how it would hurt women and girls. I am grateful to Janet Levy, contributor to the American online journal Family Security Matters, for details on these cases.

In the US and Australia, child custody cases follow the standard of “the best interests of the child”. This can mean joint custody by both parents, sole custody by the mother or father, or, if both parents are unfit, custody by relatives or guardians. Under sharia, fathers get sole custody when children reach seven years of age, regardless of family circumstances. That is how Hosain v. Malik was decided in 1996 when an American court in Maryland awarded full custody of a daughter to her father, enforcing a court order from Pakistan, an Islamic country that follows sharia law. Although the mother in the custody battle was never deemed unfit and the daughter was afraid of her father, an alleged substance abuser and batterer, the US court enforced sharia requirements.

The child’s attorney was not present at the custody hearing to advocate for the child, and no input was sought from the daughter, as is standard in US custody cases. In Hosain v. Malik, the husband’s attorney twisted the “best interest of the child” to argue that in Pakistan the well-being of the child is facilitated by adherence to Islamic teaching, which mandates awarding custody to the father.

The girl was sent back to Pakistan with her father, violating her right to a relationship with her mother and violating the mother’s rights as a parent. Further, the father accused his ex-wife of adultery, which meant that if she returned to Pakistan she could face imprisonment, lashing or even death by stoning under sharia.

In June 2009, a divorced Muslim woman (unnamed by the court), who was raped and assaulted by her husband, requested a restraining order from a New Jersey family court. The presiding judge denied the woman’s request and stated, “The court believes the husband was operating under his belief [Islamic sharia] that his demand to have sex whenever he desired was not prohibited.” The husband’s imam testified at the trial to affirm that under sharia a wife is required to comply with her husband’s sexual demands.

According to New Jersey law, coerced sex between married persons is considered rape regardless of whatever an imam or other religious cleric might declare is religiously sanctioned. Thirteen months later, the decision was overturned; but in the interim, the woman endured the stress of living without protection from a violent man whose right to rape, sanctioned by sharia, had been upheld by an American court.

Janet Levy writes: “Sharia is Allah’s law, and stands above all man-made laws. This immutable Islamic legal doctrine derives from the Koran and other sacred Islamic texts, interpretations and rulings. It mandates gender apartheid, religious discrimination, Muslim supremacy, cruel punishments and the denial of free speech and religion.

Requirements are detailed for every aspect of life, from the correct use of the toilet, to the treatment of non-Muslims, to proper wife-beating techniques. “Islamic doctrine recognises men as superior to women in matters of civil arbitration and thus promotes the unequal treatment of women. Under sharia, the list of inequalities include: a woman’s testimony is valued at half that of a man’s, she may be convicted of sexual misconduct if she is raped unless she produces four male witnesses, she receives half the inheritance of male offspring, her husband may freely divorce her without providing for her, she may be raped with impunity, and she may be beaten by her husband.

“All these abuses, which violate US [and Australian] laws for equal treatment of the sexes, are perfectly acceptable under sharia law”.

Sharia law assigns a subservient status to non-Muslims and mandates death for Muslims who leave the faith. Australians should resist any initiatives to introduce compliance with sharia into the Australian judicial system.

Babette Francis lived in Muslim-majority provinces in India prior to the 1947 partition of the sub-continent into India and Pakistan.


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