Originally presented as the editor's Thesis (doctoral)--al-Jāmiʻah al-Islāmīyah, al-Madīnah, Saudi Arabia, 1985. / Includes bibliographical references (880-900) and indexes.

This thesis examines the custom of child marriage in Islamic law and its practice in Muslim society. It also gives an overview of the history of child marriage from ancient to modern times. The focus of this research is the status of child marriage in the modern Muslim world as a continuation of ancient tradition and the role historical interpretations of Islamic law play in its perpetuation. / Child marriage was once a globally accepted and practiced phenomenon. Over the centuries its practice has diminished considerably. Today, although child marriage is viewed as an offensive act and discouraged by the majority of governments around the world, it continues to exist to a significant extent in most parts of the Muslim world. Those Muslim communities which persist in condoning and practicing child marriage are not only affected by cultural traditions but also by their form of understanding of Islamic law. This particular understanding is mostly informed by local religious leaders within their communities who base their justifications on medieval perspectives and interpretations of what constitutes divine law. / It is no coincidence, however, that child marriage is restricted to the impoverished, uneducated and rural sectors of society; people who have little choice in deciding their futures and due to harsh and straitened circumstances find it difficult to see any other alternatives.

No description available.

Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.

M.A. / Mankind today lives in a predominantly heterogeneous and metropolitan society. At all stages of life, social, political, spiritual, there is constantly a diffusion of cultures, ideas and beliefs. South Africa until 1994 was the only example of a country where the broader ethnic groups were separated from each other. Besides this country, all other countries are exposed to this amalgamation and inter-action with each other on a daily basis. Although a mixed society augers well for the propagation and easy penetration of Islam within the populace, it also has its drawbacks. Allah says: 0 mankind! We created you from a single (pair)of a male and a female, and made you into nations and tribes, that you may know each other (not that you may despise each other). Verily, the most honoured of you in the sight of Allah is (he who is) the most righteous of you. 1 1 Qur'an 49:13. Upon pondering the deeper meaning of the above verse, Allah has prescribed Taqw& (piety and righteousness) as a means of solving any problem resulting from the interaction of different tribes, races, and nations which could be at times a terribly irreconcilable one. The significant number of Muslims in any given society and especially Malawian Muslim society are ignorant of the Muslim Principles of marrying Al-Kitabiyyah (Woman of the Book). That is why we notice an irretrievable breakdown of many families whose husband happen to be a Muslim and the wife is a Kitabiyyah. This type of marriage has caused, and is still causing many problems to the social life of the Malawian Muslims. Children of these families do not enjoy that status of being under the loving care of both their mothers and fathers because their marriages does not last long. It is from this perspective that "Muslim Principles of marrying Al-Kitabiyyah" was chosen to give right direction for those who wants to marry women of the People of the Book. It deals with one small but significant aspect of interaction-the aspect of inter-marriage of Muslim men with Al-Kitabiyyah.

No abstract available. / Thesis (M.A.)-University of Durban-Westville, 1993.

Thesis (J.C.L.)--Catholic University of America, 1995. / This is an electronic reproduction of TREN, #029-0339. Includes bibliographical references (leaves 59-64).

Thesis (J.C.L.)--Catholic University of America, 1995. / Includes bibliographical references (leaves 59-64).

In the late 1990's, various British news agencies reported cases of British-born South Asian Muslim women who forced into marriages. In 2000, the UK government produced a study that determined there were 400 British cases of "forced marriages" reported to UK police in a two year period. In response to these findings, the UK government launched an educational prevention campaign, in which they defined forced marriage as "a marriage conducted without the valid consent of both parties". I argue that, while the aim of the UK government's campaign is to promote the right of choice in marriage, they do not critically examine legal, religious, political and economic issues that may limit the ability of some British South Asian Muslim women to exercise that right. This study examines these issues to develop a better understanding of the link between culture, religion and forced marriage in certain British South Asian Muslim families.

The formulation of the Kompilasi Hukum Islam di Indonesia (KHI), the standard reference on family law---marriage, inheritance and waqf---is the most recent legal milestone throughout the history of Islamic legal development in Indonesia. / The change of social perceptions on family law and the practice of living adat or customary law has been the major factor in the compilation of the KHI. The social and adat elements in the KHI are unmistakable and allowed by the concepts of `urf (usage), mas&dotbelow;lah&dotbelow;ah (public interest), sadd al-dhara'i` (blocking the means) and istih&dotbelow;san (juristic preference) in Islamic law. The KHI, in turn, is to change and make uniform the social perception of family law throughout Indonesia, which varies from one place to another. From a political perspective, the enactment of the KHI is to strengthen the position of the Islamic courts by putting them on an equal footing with other courts in Indonesia. Since the Islamic courts earlier lacked a codified or compiled material law to be used as the official reference in rendering legal decisions, the emergence of KHI is a positive step in that direction. Finally, the emergence of the KHI is a realization of the accommodative relationship between the government and Islam under Indonesian New Order era, both of which take advantage of the enactment of the KHI. (Abstract shortened by UMI.)