SHARIAsource

“Held, where the plaintiff sued for the custody of her minor sister, as her legal guardian under Muhammadan law, that the fact of the plaintiff being a prostitute was, although she was legally entitled to the custody of a minor, a sufficient reason for dismissing the suit in the interests of such a minor.”

The Act replaced the Iranian Family Protection Act 1975 and modified other family law provisions as embodied in the Civil Code and the Divorce Act 1992. It contains procedural matters (Family Courts, Family Consultation Centers) as well as substantial ones (marriage, divorce, custody, nafaqa, alimony and pensions) and the criminal sanctions. Major changes introduced generally are:

A) The Family Court now involves a female consultant judge who is to give her opinion in each case, which the sitting judge (a man as in other courts) has to consider, but not to follow, in deciding the case;

B) The jurisdiction of the Family Court is now extended to additional matters, including child adoption, embryo donation, and sex change;

C) The process for divorce by mutual consent is facilitated;

D) The value of the Mahr (or the portion of the Mahr) for collecting which the debtor imprisonment provisions can be invoked is now limited to a specified amount (equal to 110 gold coin);

E) Temporary marriage needs not be registered now save in specific situations;

Resolution 90/7/9 (“Resolution”) cites primarily to a compendium of “research papers forwarded to the [IIFA] on the subject of AIDS” and to the Qur’an.  The Resolution addresses six different issues relevant to the treatment of individuals diagnosed with AIDS: (1) it is not necessary to isolate patients; (2) deliberate transmission of AIDS to a healthy individual is haram—Shari’a proscribed—and is “considered among the major evil sins and transgressions”; (3) abortion of a fetus by a mother infected with AIDS is impermissible; (4) it is permissible for a mother infected by AIDS to retain custody of her child and to breastfeed her child; (5) it is permissible for a wife to seek separation from a husband infected with AIDS; and (6) AIDS is considered terminal according to Shari’a when “all of its symptoms are present and the victim is no longer capable of carrying out ordinary living, and death is imminent.”

The appellate court upheld the Superior Court of Orange County’s refusal to divide marital property in the context of a divorce according to Islamic law. The plaintiff introduced a marriage certificate as a “premarital contract,” which, among other things, lays out a set amount to be paid to the wife in the event of a divorce. The lower court refused to consider the certificate a “contract,” as it was not clear that both parties were expressly agreeing to the same terms, consistent with their understanding of Islamic law and custom.

In a divorce proceeding involving a prenuptial agreement (Islamic marriage contract) between a Muslim husband and wife, the California Court of Appeals considered the validity of a provision requiring the husband to pay 3,000 Jordanian dinars as well as 2,000 dinars of either cash or household furniture as a “deferred dowry” (known as mahr or ṣadāq) due to the wife upon death or divorce. The husband claimed that the deferred dowry is not due where, as here, the wife initiates the divorce proceeding. The court concluded that, regardless of the individual claims, requiring payment of one party to the other upon divorce was an example of prohibited “divorce profiteering” and that, “if the court had accepted the position of wife’s expert, the contract would not have been enforceable under the public policy of the state.” Accordingly, the Court upheld the lower court's decision not to enforce that provision of the agreement.

This Supreme Court pronouncement states that the wife is to receive three-quarters of joint assets, because those joint assets were yielded by the wife, and the husband failed to provide financial support to his wife and child for 11 years.

The parties were married on 8 April 1995 and had two children. Since 1998, the parties had quarrelled. On 9 November 2008, the plaintiff, the parties' daughter, and their maid left the matrimonial home, after being driven out by the defendant. The parties had remained separated since.

In seeking a divorce, the plaintiff also sought from the defendant IDR 2 million per month in back-dated child maintenance, as the defendant had failed to provide the plaintiff and their children with any financial support since 1997 (132 months). Furthermore, the plaintiff sought custody of the parties' children, and IDR 5.5 million per month in child support going forward.

The defendant unsuccessfully challenged the Yogyakarta High Religious Court's decision (34/Pdt.G/2009/PTA), the Supreme Court, for all intents and purposes, reaffirming the Yogyakarta Court's decision. The Yogyakarta Court, however, had not acceded to the amounts in financial support sought by the plaintiff, ordering the defendant to pay to the plaintiff IDR 750,000 per month in child maintenance, until that child reached 21 years of age.

The Compilation of Islamic Laws (Kompilasi Hukum Islam) is the Republic of Indonesia's own state-sanctioned compilation of Islamic laws on marriage, inheritance and charitable foundations (wakaf). Established pursuant to Presidential Instruction No. 1 of 1991, it was compiled within the two authoritative symbols of Soeharto's New Order: the Pancasila and 1945 Constitution. Kompilasi Hukum Islam was intended to be treated as a set of guidelines, rather than an enforceable statute, its intended effect being to make matters of Islamic law become matters of the state.

The fifth/eleventh al-Aḥkām al-Kubra, represents a new and unique legal genre for Islamic criminal justice. The treatise serves as an early example of nawāzil literature composed in al-Andalus made up of a combination of reports on legal cases coupled with the opinions and judgements of jurists and magistrates associated with it. These nawāzil also include criminal cases under the jurisdiction of the shurṭa. Ibn Sahl (d. 486/1093), a jurist living in Cordoba under the Jahwarids (r. 422– 461/1031–1069) and author of al-Aḥkām al-Kubra discusses actual crimes cases which occurred in Cordoba, and portrays the shurṭa working with jurists to arrive at a judgment. This detailed portrayal of jurists being involved in the realities of criminal justice is a distinctive element of this text. The case presented in this text is a murder of a man, allegedly perpetrated by his family, and the complex social-legal challenges of prosecuting such a case. 

The source is edited by Yaḥya Murād in Abū al-Aṣbagh ʿĪsā b. Sahl, Kitab al-Nawāzil al-aʻlām al-musamma Dīwān al-aḥkām al-kubrál. Cairo: Dār al-Hadith, 2007. Scans of this case have been made available.

This Supreme Court jurisprudence states that, pursuant to art 76 of Law No. 7 of 1989 on the Religious Judiciary, and arts 19(f) and 22(2) of Government Regulation No. 9 of 1975, witness information regarding conflict between parties to a divorce application can be provided by familial witnesses.

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.

Second Edition

A baby produced through medical intervention by the sperm and egg of duly wedded couples (without involving a third party) is permissible under Islamic law. However, surrogacy is not allowed because marriage is the only means through which children should be produced under Islamic law. Surrogacy is likely to give rise to innumerable legal problems regarding paternity and maternity of the surrogate children, the relationship between actual children and surrogate children, and inheritance rights.

Resolution 100/2/10 on Human Cloning (“Resolution”) cites primarily to the Qur’an, only once cites to hadith, and otherwise relies heavily upon uncited scientific definitions and experiments. The Resolution begins with a two-page preamble, providing an overview of Qur’anic excerpts that describe the purity of God’s creation of man and proscribe manipulations and interventions in God’s creation. The Resolution then defines ‘cloning’ as either cloning by division or nuclear transfer—both of which depend upon an intervention in the divine process of creation. Finally, the Resolution concludes that “[i]t is prohibited to clone human being[s], such as in the above-mentioned two cases or by any other method that results in the multiplication of human specie[s].”

Resolution 16 (4-3) (“Resolution”) cites primarily to a compendium of “studies on the subject of [a]rtificial insemination” and the testimonies of “experts and physicians.” The Resolution enumerates seven known methods of artificial insemination. The first five of those seven methods are “absolutely prohibited… due to ensuing consequences manifested in confusion about parenthood and loss of motherhood and other Shari’a prohibited matters.”  The sixth and seventh methods of artificial insemination are permissible in cases of necessity. 

Family members of an American citizen killed in a suicide bombing attack in Israel sued Iran and its Ministry of Intelligence and Security for her wrongful death, alleging that Iran financially supported Hamas, which took responsibility for the bombing at the time of the attack. Iran did not file an answer to the charges. Invoking the Foreign Sovereign Immunities Act exception for state-sponsored terrorism (allowing sovereign states that financially sponsor terrorism to be sued), the Court entered judgment in favor of the plaintiff, awarding $9,879,023 to the victim’s husband for both economic and emotional loss of his wife. The Court awarded an additional $5,000,000 to each of the victim’s parents for emotional loss.

This enactment of August 3, 1948, "provide[s] for the solemnization and registration of church and civil marriages." It deals with all marriages except those "contracted according to the usages of the Mohammedans, Hindus, Buddhists, Dayaks and other persons governed by their own laws or customs." It names neither the Sultan nor the British Resident, and does not specify an author or enacting authority.

This English-language summary issued by the Acehnese government explains the all-encompassing role of sharīʿa in Aceh. It clarifies that sharīʿa does not apply to non-Muslims, and that its implementation in no way repudiates human rights standards, including freedom of religion.

Third Edition