Fatima Ruling Condemned by Ex-Minister

JEDDAH, 21 February 2007 — The ruling that upheld a judge’s decision to divorce a couple in absentia at the request of the wife’s half-brothers has been condemned by a former deputy minister of justice.

In an interview with Arab News, Fadl Mehdar Aqeel said that the case pits Shariah law against tribal traditions and prejudices. He said Saudi courts should be deferring to Islamic principles when it comes to such conflicts rather than siding with tribal traditions that transcend Muslim identity.

“This ruling in Fatima’s case is a big mistake,” he said, referring to the 34-year-old woman who has languished in a prison in Dammam since last summer because she refuses to return to the custody of the family members who intervened on her three-year marriage to Mansour Al-Timani, 37. “This is a racist and ignorant decision.”

Since the Jan. 21 appeals-court ruling upholding a court ruling that divorced Fatima and Mansour at the request of Fatima’s half brothers on the grounds of Mansour’s “inferior” tribal lineage, public opinion seems to be in favor of the couple. Columnists, letters to the editor, and callers on debate programs seem overwhelmingly against the family that brought legal action against the couple and the justice system that affirmed their effort to break up the marriage. Further complicating the matter is the fact that Fatima and Mansour have two children: A two-year-old girl is in Mansour’s custody while the infant boy lives in prison with his mother.

Unfortunately, Fatima’s case is not the only such case in courts. Newspapers report similar stories with brothers, half brothers, cousins, uncles and even tribal chiefs filing court cases demanding divorces of women due to unequal tribal affiliations.

“I have heard of 19 other cases that are at different stages of court proceedings from Internet forums and speaking to lawyers,” said writer and activist Hussein Shobokshy. “The issue is much more serious than civil liberties and women’s rights. This is an infringement on God-given rights and a suspension of Islamic laws. Shariah law should be above tribal codes.” He said that if this kind of judgment is not prohibited, it could have other consequences. “This ruling created an institutionalized caste system. It could officially legitimize discrimination in other things such as applying for jobs and promotions,” said Shobokshy.

“How can we reconcile this ruling with a previous statement by the minister of justice that a nation’s strength is in its judicial system?” asked Fuad Engawi in his column in Al-Madinah newspaper last week.

Women in the Kingdom, expatriate and Saudi alike, have expressed their fear that this ruling poses a threat to the security and unity of families. The issue regarding the autonomy that husbands and wives have in relation to their in-laws and blood relatives is on trial.

Throughout his 40-year career in the Ministry of Justice, former Deputy Minister Aqeel said he has never come across such a ruling that made its way through the appeals process. The reason, he says, is that Shariah law forbids such tribal meddling in the sanctity of marriage.

“It is forbidden in Islam to separate a married couple for any reason,” he told Arab News. Aqeel cites the fact that Fatima’s late father approved the marriage and that the couple has children as a compelling reason to reverse the ruling. (The father has since passed away, leaving the power of attorney and, more important, custody rights over Fatima in the event of her separation from her husband, to his male children. Fatima remains in prison because she has refused to return to the custody of these male relatives.)

“What could be more damaging than shattering a family and disrupting the life and well-being of children by separating their parents?” said Aqeel, who referred to the saying of the Prophet Muhammad, (pbuh) for guidance on the matter.

The Prophet delivered a message of equality among Muslims and against the pre-Islamic traditions. There are many references in the Holy Qur’an and the Hadith that forbids discrimination, and there are stories from the Prophet’s time illustrating that the only criteria are the person’s religion (Muslim women can only marry Muslims, but Muslim men can marry women of other faiths) and good character.

According to Aqeel, the only way to overrule the appeal’s court decision is to take the case to the Royal Court. Fatima and Masour’s lawyer, Abdul Rahman Al-Lahem, has sent a legal petition to Custodian of the Two Holy Mosques King Abdullah asking that this case be sent to the High Court Council for review.

The Al-Ein satellite channel recently featured a point-counterpoint style debate between a lawyer and an Islamic scholar on the issue of whether tribal lineage should be considered a basis for marriage or divorce.

The lawyer, Yehya Al-Shahrani, a member of the International Union of Lawyers and a certified arbitrator by the Ministry of Justice, argued that the finding in this case justified the ruling, but that it shouldn’t be applied as a general rule. The lawyer pointed out that such cases of family members filing to divorce family members based on incompatible tribal lineage is not new, and that there are cases going back 50 years where judges sometimes sided with one side or the other. In some cases, he said, the divorce was brought about on the basis that the husband had a menial job. Al-Shahrani’s main point is that these tribally incompatible marriages affect relationships in the community, and that the damage is real and extensive.

The sheikh, Hasan Al-Malki, on the other hand, kept reminding him that Islam came to eradicate these pre-Islamic traditions and tribalism. According to Islamic law and the Saudi justice system, after marriage only the husband or wife is allowed to file for divorce, said Al-Malki. He said that these pre-Islamic tribal traditions have no place in a world maintained by the moral rules of Islamic identity.

In response to this unjustified ruling in Fatima’s case by the appeals court, Saudi women across the Kingdom have launched a petition to be sent to the king sounding the alarm to the dangerous precedence this verdict could establish, which would allow any male relative to destroy a family’s unity.

Columnists have pointed out that the same argument that has prevented judge’s from granting divorces (that it would be bad for the children) could be used to prevent the annulment of the marriage between Fatima and Mansour. Furthermore, they have argued that in light of the Kingdom’s increasing rate of divorce, rulings that impose divorce on married couples won’t help solve the problem.

An online petition addressed to King Abdullah was posted last week by the Muslimah Writers Alliance, a Washington D.C.-based organization, to collect signatures from Muslim women asking for his intervention in saving Fatima’s family and calling for the reversal of the decision. The petition raises questions about the power of the male guardian over a woman, the judicial process of this case and the rights of mature, sane women in Islam.