- In the context of this paper, ‘British Muslims' refers mainly to Sunni Muslims of South Asian descent.
- On the relationship between the liberal underpinnings of English law and minority Muslim laws see Samia Bano, ‘Muslim and South Asian Women: Customary Law and Citizenship in Britain’ in Nira Yuval-Davis and Pnina Werbner (eds). Women, Citizenship and Difference, London, New York: Zed Books, 1999, 165.
- This separation was highlighted particularly well in the British cases brought around the publication of The Satanic Verses: R v Chief Metropolitan Stipendiary Magistrate ex parte Choudhury [1991] 1 All ER 306; R v Horseferry Road Metropolitan Stipendiary Magistrate ex parte Siadaatan [1991] 1 All ER 324. See also the European Court of Human Rights' decision in Wingrove v UK (1997) 24 EHHR 1. Commentaries of particular note are Gayatri Chakravorty Spivak, ‘Reading the Satanic Verses' in Gayatri Chakravorty Spivak, Outside in the Teaching Machine, New York, London: Routledge, 1993; Tariq Modood, ‘British Asian Muslims and the Rushdie Affair’ (1990) 61 (2) The Political Quarterly 143; Talal Asad, ‘Multiculturalism and British Identity in the Wake of the Salman Rushdie Affair’ and ‘Ethnography, Literature and Politics: Some Readings and Uses of Salman Rushdie's Satanic Verses’, in Talal Asad, Genealogies of Religion, Baltimore, London: John Hopkins University Press, 1993;Tariq Modood and Pnina Werbner (eds), The Politics of Multiculturalism in the New Europe: Racism, Identity, and Community, London: Zed Books, 1997. For a feminist perspective, see Gita Sahgal and Nira Yuval-Davis, Refusing Holy Orders: Women and Fundamentalism in Britain, London: Virago Press, 1992.
- See, for instance, Sebastian Poulter. ‘The Claim to a Separate Islamic System of Personal Law for British Muslims’, in Chibli Mallat and Jane Connors (eds), Islamic Family Law, London, Boston: Graham & Trotham, 1990; Andrew Bainham, ‘Family Law in a Pluralistic Society’ (1995) 22(2) Journal of Law and Society 234; M. Montgomery, ‘Legislating for a Multi-Faith Society’, in Bob Hepple and Erica Szyszcak (eds), Discrimination: The Limits of Law, London: Mansell, 1992; Sebastian Poulter. ‘The Limits of Legal, Cultural and Religious Pluralism’, in Hepple and Szyszcak, Discrimination: The Limits of Law, above; Sebastian Poulter, ‘Minority Rights’, in Christopher McCrudden and Gerald Chambers (eds), Individual Rights and the Law in Britain Oxford: Oxford University Press, 1994; Sebastian Poulter, Ethnicity, Law and Human Rights, Oxford: Clarendon Press, 1998.
- The Muslim diaspora in Britain consists of communities that originate from diverse geographical regions. As such, a number of fundamental differences can be identified between the types of Islam that such communities are affiliated with. Therefore, the term ‘Islam’ or ‘Muslim’ to describe this plurality is misleading as it describes Islam as a monolithic homogenous entity.
- Afsaneh Najmabadi, ‘Feminism in an Islamic Republic’ in Yvonne Yazbeck Haddad and John L. Esposito, Islam, Ccuder, atid Social Change, Oxford: Oxford University Press, 1998, at 81.
- Barbara Stowasser, ‘Gender Issues and Contemporary Quran Interpretation’ in Yazbeck Haddad and Esposito, Islam, Gender, and Social Change, above n. 6,31.
- David Pearl and Werner Menski, Muslim Family Law, London: Sweet and Maxwell, 1998, 51.
- Ibod., 54.
- Sebastian Poulter, amongst others, cites a selection of recent cases which demonstrate judicial acknowledgement of different cultural and religious backgrounds and how ‘the English legal system is reasonably flexible’ in its accommodation of Muslim religious and cultural values: ‘Multiculturalism and Human Rights for Muslim Families in English Law’, in Michael King (ed.), God's Law Versus Stale Law. The Construction of an Islamic Identity in Western Europe, London: Grey Seal, 1995, at 83.
- British Muslims have responded to the question of the incompatibility of Muslim and English law in various ways. See, in particular, the UK Action Committee on Islamic Affairs' Submission to the Home Office, Muslims and the Law in Multi-Faith Britain: The Need for Reform, 1993.
- Pearl and Menski, above n. 8, 58.
- Michael King, ‘The Muslim Identity in a Secular World’, in King, God's Law Versus State Low, above n. 10, 112. See also, from a different perspective, Pnina Werbner, The Fusion of Identities: Political Passion and the Poetics of Cultural Performance Among British Pakistanis, in David Parkin, Lionel Caplan, Humphrey Fisher (eds), The Poetics of Cultural Performance, Providence, Oxford: Berghahn Books, 1996.
- There are a number of key texts investigating the Muslim law of marriage in the British context. See, in particular: David Pearl, A Textbook on Muslim Law, London: Croom Helm, 1979; David Pearl, Family Law and the Immigrant Communities, Bristol: Jordan & Sons, 1986; David Pearl, A Textbook on Muslim Personal Law, Beckenham: Croom Helm, 1987; Werner Menski (ed), South Asians and the Dowry Problem, New Delhi: Vistaar Publications, 1998.
- For an overview of pre-Islamic marriage customs see Qudsia Mirza, ‘Islamic Feminism and the Exemplary Past’ in Ralph Sandland and Janice Richardson (eds.), Feminist Perspectives on Law and Theory, London: Cavendish, 2000.
- For a critical overview of the concept of cultural hybridity see Pnina Werbner, ‘Introduction: The Dialectics of Cultural Hybridity’, in Pnina Werbner and Tariq Modood (eds), Debating Cultural Hybridity, London: Zed Books, 1998.
- For an overview of the relationship between Muslim law and English law see generally, King. God's Law Versus State Law, above n. 10.
- See also Pnina Werbner, ‘Fun Spaces On Identity and Social Empowerment Among British Pakistanis’ (1996) 13 (4) Theory, Culture and Society 53.
- For a general overview of the link between space and gender see Doreen Massey, Space, Place and Gender, Cambridge: Polity Press, 1994; Gillian Rose, Feminism and Geography, Cambridge: Polity Press, 1993.
- Couples previously registered their marriage during their lunch break as Pearl and Menski note, ‘without marking the occasion in any form. This appears to be changing today and the registration ceremony is gaining more popular acceptance’: Pearl and Menski, Muslim Family Law, above n. 8, 169.
- The chronology of the marriage events may vary. Pearl and Menski's research shows that the register office ceremony and the nik'ah now take place shortly after each other—often on the same weekend, in order to avoid the ‘limbo’ period between the two: Pearl and Menski, Muslim Family Law, above n. 8, at 170.
- '[M]any of the procedures [relating to marriage] are unnecessarily complex and restrictive and reflect the needs and social conditions of the early nineteenth century rather than those of the late twentieth century’, Green Paper, Registration: A Modern Service Cm. 531, para 3.2, quoted in Stephen M. Cretney and Judith M. Masson, Principles of Family Law, London: Sweet and Maxwell, 1997 at 33–34.
- By virtue of the Marriage Act 1898.
- 'Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be as one flesh.’ Genesis, 2: 24.
- Also known as Lord Hardwicke's Act.
- In the main, the new requirements consisted of the following: a public church ceremony; prior to this, the calling of banns oil three successive Sundays; consent of a minor's parents or guardian; and finally, the marriage had to be entered in an official register.
- The exception did not include Protestant dissenters and Roman Catholics who were therefore forced to follow the Anglican ceremony.
- The modern descendant of the secular marriage is, of course, the register office ceremony. Non-Anglican places of worship must satisfy certain stringent conditions before they qualify as valid places to conduct marriage ceremonies.
- Certain minimum requirements that must be incorporated in the ceremony are laid down by the Marriage Act 1949.
- Marriage Act s.41(1).
- Modern alternative forms of words are provided by The Marriage Ceremony (Prescribed Words) Act 1996.
- This is the form of words used if the marriage is conducted by an ‘authorised person’, the celebrant, rather than a registrar.
- An additional important point is that for those opposed to female purdah of this kind, English law provides a valuable opportunity for challenging notions of female seclusion.
- Jews and Quakers are given a further exemption in that their marriages may be celebrated outside the official hours of 8 am and 6 pm.
- Again, the words to be exchanged are similar to those exchanged in non-Anglican religious ceremonies.
- Marriage Act 1949 s.78(1) as amended by Marriage Act 1994, Schedule 1, Para. 8. The criteria are set out in The Marriages (Approved Premises) Regulations 1995, S.1.1995 No. 510.
- Marriage Act 1949 s. 46B(4) as inserted by the Marriage Act 1994 s. 1(2). The insistence on the non-religious nature of the ceremony is also stressed by the Regulations, which specify that if the ceremony includes any reading, music, words or performance, they must be wholly secular in nature: The Marriages (Approved Premises) Regulations 1995, Schedule 2, Para. 10. Pearl and Menski note that there is insufficient evidence, at present, to determine the extent to which the opportunity to register ‘approved premises' has been taken up by Muslims: Pearl and Menski, Muslim Family Law, above n. 8, 169.
- Pnina Werbner, The Migration Process: Capital, Gifts and Offerings Among British Pakistanis, Oxford: Berg Publishers Ltd., 1990, 260. This text is the main basis for the descriptions of the South Asian wedding ceremonies and rituals outlined below.
- Ibid., 261.
- The groom's mhendi, also female-led, will also be held at home, the domain of women.
- Werbner, The Migration Process, above n. 38, 270.
- Such transgressions serve to emphasise the deeply entrenched nature of rules which order the conduct of women outside such events.
- As is the groom when his party attends the mhcndi at the bride's parental home.
- Barbara D. Metcalf, ‘Introduction: Sacred Words, Sanctioned Practice, New Communities’, in Barbara Daly Metcalf (ed), Making Muslim Space in North America and Europe, Berkeley: University of California Press, 1996, 3.
- John Hade, ‘Nationalism, Community and the Islamization of Space in London’, in Barbara Daly Metcalf (ed). Making Muslim Space in North America and Europe, above n. 44, 231.
- Jan Nederveen Pieterse, ‘Travelling Islam: Mosques Without Minarets’, in Ayse Oncii and Petra Weyland (eds), Space Culture and Power, London: Zed Books, 1997, 187.
- In some denominations, the mosque, as a public space, is one which women are prohibited from occupying at all; thus, as a space only for men (as figures who occupy the public domain), no provision will be made for women.
- Werbner, The Migration Process, above n. 38, 276.
- The Qur'an also uses the term zawaj to refer to marriage but the word nik'ah is more generally used in Islamic jurisprudence.
- The rules of legal capacity are detailed and complex and vary according to which of the Islamic schools of jurisprudence is followed.
- Or minor.
- Jamal J. Nasir, The Status of Women Under Islamic Law and Under Modern Islamic Legislation, London: Graham and Trotman, 1994, 10. As such, this practice has no support in the Qur'an.
- Shahnaz Khan, ‘Muslim Women: Negotiations in the Third Space’ (1998) 23(2) Signs Journal of Women in Culture and Society 463, at 468. Khan theorises the polarities of Islam and Orientalism as the two binaries which structure Muslim women's subjectivities in Canada.
- Muslims belonging to the Hanafi school of Islamic jurisprudence only require a guardian to conclude a contract on behalf of the woman if she has no or limited legal capacity.
- Homi K. Bhabha, The Location of Culture, London: Routledge, 1994, 3.
- For a contemporary analysis of the relationship between the two ‘cultures' of Islam and postmodernism see Akbar S. Ahmed, Postmodernism and Islam Predicament and Promise, London: Routledge, 1992.
- See also Homi Bhabha, The Third Spate Interview with Homi Bhabha, in Jonathan Rutherford (ed), Identity: Community, Culture, Difference, London: Lawrence and Wishart, 1990.
- Bhabha, The Location of Culture, above n. 55, 4.
- Berthold Schoene, ‘Herald of Hybridity, The Emancipation of Difference in Hanif Kureishi's The Buddha of Suburbia’, (1998) 1(1) International Journal of Cultural Studies 109.
- Bhabha, The Location of Culture, above n. 55, 1.
- Ibid., 4.
- Ibid., 7.
- Ibid., 1.
- Mernissi is more directly critical in her opinion of such segregation: ‘Strict space boundaries divide Muslim society into two sub-universes: the universe of men (the umma, the world religion and power) and the universe of women, (the domestic world of sexuality and the family). The spatial division according to sex reflects the division between those who hold authority and those who do not, those who hold spiritual powers and those who do not.’ Fatima Mernissi, Beyond the Veil: Male-Female Dynamics in a Modern Muslim Society, London: Al Saqi Books, 1985, 138. See also Fatima Mernissi, Women and Islam An Historical and Theological Enquiry, Oxford: Blackwell, 1992; Fatima Mernissi, The Veil and the Male Elite: A Feminist Interpretation of Women's Rights in Islam, Reading, Mass.: Addison Wesley, 1991.
- The white of a Christian bride would be unacceptable as traditionally, this is the colour of death and therefore, taboo in celebratory events of this kind.
- A married woman will now wear a wedding band as a daily sign of her married status and will only wear the bangles on special occasions.
- The male body has no such emphasis imposed upon it: see Lama Abu-Odeh, ‘Crimes of Honour and the Construction of Gender in Arab Societies’, in Mai Yamani (ed.), Feminism and Islam, Reading: Ithaca Press, 1996. For the importance of pre-marriage female virginity in the Arab Muslim world see Nawal El Saadawi, The Hidden Face of Eve, London: Zed Press, 1980; M. Combs-Schilling, Sacred Performances: Islam, Sexuality and Sacrifice New York: Columbia University Press, 1989; and Lila Abu-Lughod, Veiled Sentiments: Honor and Piety in a Bedouin Society, Berkeley: University of California Press, 1986. See also Lila Abu-Lughod (ed), Remaking Women Feminism and Modernity in the Middle East, Princeton, New Jersey: Princeton University Press, 1998. For a cutting critique of virginity in Muslim societies, see Fatima Mernissi, Women's Rebellion and Islamic Memory, London, New Jersey: Zed Books, 1996.
- Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, New York: Routledge, 1990. For the construction of virginity in performative terms, see Abu-Odeh, ‘Crimes of Honour and the Construction of Gender in Arab Societies’, above n. 67.
- Abu-Odeh, ‘Crimes of Honour and the Construction of Gender in Arab Societies’, above n. 67, 149.
- This is the case in almost all the events that constitute the marriage process: there is a little laxity in the pre-wedding rituals, the female-dominated mhendi, in which the bride-to-be is permitted to join in some of the celebrations, but in the formal rukhsati, when a bride leaves her parents' home and at the valima, which celebrates the consummation of the marriage, the woman is expected to conduct herself in this demure manner. The woman is also the symbolic representation of izzat, or family honour, a further reason why she must conduct herself in a suitable way.
- Luce Irigaray, ‘Interview’, in Marie-Francoise Hans and Gilles Lapouge (eds), Les Femmes, la pornographic et l'erotisme, Paris: Editions du Seuil, 1978, 50 quoted in Griselda Pollock, Vision and Difference, Femininity, Feminism and the Histories of Art, London: Routledge, 1988 at 50.
- Pollock, Vision and Difference, Feminism, Femininity and the Histories of Art, above n. 71, chapter 3.
- Gillian Rose, Feminism and Geography, above n. 19, 103.
- Laura Mulvey, Visual and Other Pleasures, London: Macmillan 1989, 19.
- Linda McDowell, ‘Body Work Heterosexual Gender Performances in City Workplaces’, in David Bell and Gill Valentine (eds). Mapping Desire, London: Routledge, 1995,78.
- Michel Foucault, Discipline and Punish The Birth of the Prison, London: Penguin, 1977, 155.
- Sec Mary Kelly, ‘Desiring Images/Imaging Desire’, in Mary Kelly, Imaging Desire, Cambridge, Mass.: Massachusetts Institute of Technology Press, 1996, 123.
- The Registrar may, of course, be a woman and, correspondingly, the family and wider community constitutes women as well as men. However, in symbolic terms, the sex of the Registrar is unimportant as (s)he symbolises the patriarchal authority of English law whilst the family and wider community signifies the equally patriarchal nature of Islamic law and attendant South Asian customs and traditions.
- Steve Pile, The Body and the City: Psychoanalysis, Space and Subjectivity, London: Routledge, 1996, 235.
- Ibid.
- Bhabha, The Location of Culture, above n. 55, 228.
Australian Feminist Law Journal
Volume 14, 2000 - Issue 1