By Shaheen Ali and Justin Jones
Introduction
Sometimes described as “the UK’s first female shari‘ah judge,” Amra Bone sits on the panel of the Shari‘ah Council of Birmingham Central Mosque, one of the UK’s largest and best-known shari‘ah councils, which handles a large body of Muslim divorce litigation in particular. She has also worked as a Muslim leader and chaplain within the community in Coventry and Birmingham for some thirty years.
In this statement, she reflects chiefly upon her work as a “panellist” on the Birmingham Shari‘ah Council. She provides a number of vignettes on the work of the council and the life-stories of its litigants, and gives a sense of the diversity and complexity of the cases that are brought to the Council. Many of the cases that she cites defy the frequent stereotypes of shari‘ah councils as patriarchal institutions that indoctrinate their litigants. Instead, the overall impression given is that these institutions fulfil an important community need that would not be fulfilled were these institutions to disappear. They offer essential services, like an efficient, streamlined divorce procedure (one more affordable and efficient than the service in the civil courts) and counselling assistance for couples seeking reconciliation. The role of shari‘ah councils, she implies, is particularly important given the new tensions within the Muslim community that have accompanied social change, such as the erosion of arranged marriage and move towards love marriages. Changing social norms have been the cause of intra-familial breakdown, and young Muslims sometimes approach shari‘ah councils as a third party, to seek resolution or to support them against pressures from family elders.
Bone is keen to refute the impression of Muslim women as helpless. They can be “surprisingly strong,” she argues, giving examples of women who approach the shari‘ah councils autonomously and voluntarily in pursuit of preferred outcomes. The councils, she implies, have a role in “enabling” women to express their wishes and achieve their desired ends.
Bone also evokes some unexpected examples of Muslim women’s legal behaviour: for instance, women who willingly, and sometimes even by preference, share their husband in polygamous marriages. Such arrangements might offer some women greater professional or financial independence, or free them from other marital duties. Accordingly, she makes a call to question old assumptions about Muslim marriage and acknowledge the existence of alternative forms of “balance” in Muslim society.
By Bone’s analysis, shari‘ah councils are not only Islamic legal bodies, but spaces for promoting public religious knowledge and teaching. Expanding on this theme, she implies that decisions of marriage and divorce in the council are made with reference not simply to provisions of fiqh, but the wider “ethical” teachings of the Qur’ān. We see this in her emphasis upon the need for “trust, love, compassion” within marriage, and upon her interpretation of the role of the male marriage “guardian” (walī) in the care or provision for a woman, rather than control or instruction.
Furthermore, to dispel the misconception that shari‘ah councils are makeshift, arbitrary institutions, Bone gives a sense of their internal regulation and clear attention to procedure. Rather than a single judge (qaḍī) holding discretion, the several members “come to decisions as a panel,” by ‘respecting […] and listening to each other […] [to] balance out our views.” This argument potentially hints at the Mālikī legal principle of jamā‘at al-muslimīn al-‘udūl—a concept that Bone has referred to elsewhere—which asserts that decisions of law and guidance can be made by a “council of upright Muslims” in the absence of a Muslim government able to issue judicial decisions. The systematic and responsible nature of shari‘ah councils is also suggested in her reference to a national Board of Shari‘ah Councils, that provides a central infrastructure for these institutions and enhances their credibility.
Moreover, by referring to the council as having a “panel,” and its members as “panellists,” there is an evident avoidance of the legal language of “courts” or “judges.” The message, clearly, is that this shari‘ah council does not trespass onto matters of civil law. Bone is explicit that the council throws out any issues that transgress its remit.
Like other contributors, Bone gives the sense of a very “British Islam,” and suggests that any proposed solutions need to work entirely within the British environment. Similarly, comparable with other contributors, Bone makes a call for flexibility of understanding and interpretation based upon Islam’s diversity.
Transcript
‘My role has been primarily that of an educator. I started as a Muslim girls’ club leader, a role that […] first got me involved in the community in Birmingham. That made me familiar, some 25 years ago, with the problems that Muslim girls were facing. This [club] was a place where girls could come to discuss and play sports, and often I had to go to assure the parents that this was a suitable thing for their daughters to be coming to. Things have moved on since then […] Around 2004, we set up Coventry City Circle, a group of men and me, and I became the chair of that body that was there to promote peace and understanding through education and dialogue between people of faith and people of no faith. A lot of Muslim women would attend our programmes too, and later, a woman who came to our events and felt inspired by them, went on to set up the Muslim Women’s Network. The priority must be to teach women so that they can lead; [Muslim] women have sometimes been brought up to think that they are not leaders, or cannot be leaders because of certain [religious] constraints, but these perceptions are changing now.
During this period, I was approached by the director of [Birmingham Central Mosque], who asked me whether I would come and be part of the Shari‘ah Council, not as an assistant or a helper but as a panellist. I had to think about this, since making decisions on people’s lives is such a great task, but I sought advice […] and people said to me, “If you don’t [take on this role], just imagine who might.” So, I have considered this role to be a responsibility [for me].
Working in the Shari‘ah Council has been an immense experience, and although I was already familiar from my early work with lots of problems that the Muslim community face, I came across even more. In my role as educator, I have tried to deal with problems themselves and to mediate between people, and also to offer education about Islam and its teaching about equality. [In the Shari‘ah Council] we are developing, on a daily basis, understanding about what a marriage is, what the ingredients of marriage are, how to deal with our partners, and so on. Marriage must be based on trust, love, compassion, and respect between both parties.
I remember once sitting alongside some traditionally educated ‘ulamā’, and we were speaking about a case of divorce. One scholar claimed that he could not see the grounds for divorce [according to fiqh], but I asked him whether he could see any trust at work in that marriage: he said that he hadn’t thought about it. [The problem has been that] sometimes people can be legalistic and literal in their reading of Islam, starting with the classically defined grounds and working around them. But being together on [the Shari‘ah Council] panel, by respecting each other and listening to each other, we have been able to help each other, balance out these views, and develop an understanding of Islam that is ethical and beautiful and grounded in the [principles of the] Qur’ān.
We come across all sorts of cases [in the Shari‘ah Council], and I’ll give you some examples from my experience:
We handle a lot of divorce cases […] We tell them that we do have a procedure [for divorce], and it will take less time than the civil courts but it can still take up to three months, and we always involve the other party if they want to be involved. The council supports women who cannot afford it by waiving the fees if necessary.
We get a lot of husbands begging us, “please don’t let it happen, I love my wife” […] and they somehow assume that we can put pressure on their wife to agree [to remain in a marriage]. We tell them that this is not our job. We are not there to investigate his story or her story. We are there to see if their marriage is workable, and if it has the right ingredients of trust, respect, and compassion between the parties. In that sense, we are not there to judge them; we are there to help them, both men and women, to move on with their lives.
Of course, in some cases, we see arranged marriages, many of which are cousin marriages; and when it comes to divorce, the parents don’t actually support the divorce. The parents tell their children “you can go to the Shari‘ah Council, but we are not coming along with you.” […] Parents sometimes don’t want to get involved, often because they don’t want other members of their families to say that they instigated it, and so they leave their daughters or their sons alone [to deal with it].
Some cases concern love marriages, with people whose parents have not agreed with a marriage but who have gone ahead with it. Sometimes the situation is just a case of parental reluctance, but in some cases, these people have literally run away through a window to get married. In some cases, women have had love marriages and later find that the husband does not share kafāʾa (compatibility): he may be an alcoholic, or taking drugs, or already married, or have been in prison. These are sometimes marriages in which the family are not involved, and we see plenty of these cases. Sometimes, the parents come around to supporting [their daughters], saying that they had reluctantly allowed her to go ahead with that marriage.
Most of our clients do not have strong knowledge of Islam and haven’t studied the tradition, and so [our task on the Shari‘ah Council] is to serve as their teachers. So, if we need to raise the issue of the walī [guardian] and their parents are sitting there, we have to explain to the parents that their role is not just to give their daughters permission or to hold power over them, but they are there in the role of an attorney, to represent their interests. In a lot of cases that we have seen, women are suffering because they went off on their own to marry someone who turned out to be incompatible, precisely because no one had been looking on their behalf. This is what [the guardians] are supposed to do. The walī is a protector: they can be a relative, or a friend; someone to look after the girl’s interest. So we try to educate the parents while they are sitting there that looking out for their daughter’s interests is less a case of granting permissions and more of taking due care, ensuring that she does not take out a marriage contract with someone who turns out to be unsuitable or who has a bad record. This is an example of the refinement of Islamic ethical principles. It does not imply that a woman is lower or has a lesser intellect, but that someone in the community has a responsibility to look out for them.
We have also had cases of polygamous marriages. There was a recent case of one marriage in which the wife did not know that her husband was already married. But she did not come to us to seek separation [at the outset]. She knew there had been deception but said that she wanted to give him a chance; and [she said] that if he informed his first wife, and if he could treat her equally, then she could accept it. So we invited him to the Shari‘ah Council to sit with us, and as a Council we set up certain conditions that he had to fulfil, and [informed him that] if he had not fulfilled them within two months, then the marriage would be dissolved. Ultimately he did not fulfil them, but [what is significant is that] she did not say that she did not want to be a second wife [in any circumstances]. She would have accepted this, so long as her conditions were met.
There have been other cases [in which women have not objected to a husband being in polygynous marriages]. I have had women come to me personally who have said “look, I don’t want to have a ‘proper’ marriage in that sense, I don’t want a husband who is under my feet. I want to have my freedom. He can have his other wife, and he can come to see me when I want to see him.” There was another woman who said that “I chose to marry a man who is already married because I don’t want children. I want my career, and he has already got children and a wife somewhere else, but so long as I am free and I can do whatever I want, then I can have these marital relationships according to Islam.” A number of these women who choose to express this are converts. I may not agree with them, but I do not have authority to tell them that they can’t do this. I may have an opinion, but people have a choice.
This is not just an issue of education. We now have women coming to us who are willing to be second wives. They are highly educated, have money and a career, are in their early or late-thirties, and are sometimes looking to get married later when most men are already married. We have women saying that they know their husbands are already married to somebody else, and they are fine with that. There are many cases like this, and many women who are unmarried, so we do need a debate about how far do we go and where the balance lies.
If a man thinks that to have another wife is his right—and a lot of men joke about this, or at least it is in the consciousness of some men that they can [take another wife] at some point—then my role is not just to lecture him about his wife’s rights or his own responsibilities, but to remind him to look upon his first wife as a human being, and that if he takes a second wife without her knowledge or agreement, he will break her trust. That is the role I am playing in the Shari‘ah Council. Luckily, I am working with people [on the Council] who are open minded and agree with my perspective.
Women can be surprisingly strong, and they come to the Shari‘ah Council saying very clearly what they want. We had one woman who came with her mother: the mother did not want her to divorce her husband because she had had some dealings with her son-in-law, and she had put him in charge of some family land after her husband passed away. But her daughter was saying “I don’t care about that land, I don’t want to be married to him.” So [the daughter] stood up to everyone in the family, and said that she wanted the divorce to go ahead.
We get a lot of women coming on their own, sometimes because they don’t have the support of their family, and they know that the only people who are actually going to hear their voices are the Shari‘ah Council. The Shari‘ah Council is actually enabling them to say what they want to say, to give them that voice even when their families will not listen to them. Of course, this isn’t the side of things that we always hear in the media, but these experiences are very significant.
Most people who come to the Council are simply wanting to do the right thing by God. Some, simply want [to get] a divorce certificate to facilitate a new marriage, while others are concerned just to [dissolve] an existing failed relationship.
We have very few cases where people want to talk about their finances, and when we do, we say that we don’t deal with that. Civil courts deal with assets and custody cases; our role is just to see whether their marriage is viable or not.
When we ask our clients whether they have registered their marriages, often they say no. When we ask women why they have not registered their marriages, they usually say, “because this [Islamic nikāḥ] is the more important one”… And when we ask [clients] whether it rang alarm bells to have not affirmed their [legal] rights, some say, “no, we didn’t register it because we didn’t get round to it.” Some people say “it is a good thing that we did not get round to [registering our marriage], because now it is divorce time, and if we had married it would have cost us so much money and time. This way, we can now finish it, move on, and marry somebody else.” […] We had a [client who was a female] lawyer to whom we asked “why did you not register your marriage?” She said, “if I had, I would be ruined by now.” There was another woman who said “I have just as many assets [as my husband], I don’t want to.” As things stand, our council encourages people to register their marriage, or at least, considers that they should be aware [of the consequences if they don’t].
Some people try to put pressure on the individual members [of the Shari‘ah Council], or on the committee of the mosque, but we are not aligned to anyone […] I would not be there if we were. We each have our individual intellects, and as a panel we come to decisions, and we will not be pressured.
I have limited experience of the other [shari‘ah] councils, but I have been told that women now do sit on some of them. Now that there is a Board of Shari‘ah Councils, we are trying to work together, to see how each of us is working. This is the point of the Board: to standardise practices and improve ourselves. We have standardised the forms that we use, and we use both the logo of our own council and of the Board of Shari‘ah Councils. So we are engaging with this kind of standardisation.
When it comes to theological arguments, we try to contextualise what we are doing within Britain. While we are aware of what is going on abroad, in Europe or in Pakistan or elsewhere, this is not our primary concern. The majority of people [that we assist] see themselves as British: they do not think of themselves as being from elsewhere and are trying to do what they can within Britain. So if we are to find a way for the shari‘ah councils to work together, to work within the legal system, then maybe there is a way forward. We need solid answers and proposals for how shari‘ahmight work within our legal system, so that we can move forward together as a society.’