Posts Tagged ‘MPL’

The Muslim Marriages Bill (MMB) which has been approved and recommended by the South African Law Reform Commission and adopted by the Department of Justice and Constitutional Development is in conflict with the Shari’ah. Hereunder we reproduce some of the flaws of the Bill with respect to the pristine Shari’ah.

Readers of Muslimality are reminded to strongly object to the Bill and submit letters of objection via the following avenues:

Mr.T.N.Matibe

Private Bag X81,Pretoria 0001,

or faxed at 086 648 7766,

or e-mailed to
TMatibe@justice.gov.za no later than 15 March 2011.

(1)  According to the proposed Muslim Marriages Bill, the secular courts will pronounce on Shar’i masaa-il  and issue ‘fatwas’ (decrees) which will be in the light of the country’s constitution and subservient to the laws of the country. Thus, the MMB defining courts says:

“court” means a High Court of South Africa, or a court for a
regional division as provided for in section 29(1B) of the
Magistrates’ Court Act, 1944 (Act No.32 of 1944)”

In terms of MMB, the secular court will take over the functions of the Ulama of issuing Fatwa on matters pertaining to Nikah, Talaaq, Hadhaanah (Custody), Nafqah (Maintenance), etc.  But, according to the Shariah, the decrees of secular courts are not valid and have absolutely no effect. Thus, if a secular court decrees that the Nikah is annulled, then despite the invalidity of such decree in terms of the Shariah, the decree will have legal effect according to MMB, and the Muslim husband will be compelled to accept it.

(2)  Any ambiguity in any ‘Islamic’ provision of MMB pertaining to Talaaq, will be resolved by the courts in the light of the secular Divorce Act, 1979 (Act No.70 of 1979). The final arbiter in all cases will be the secular law, not the Shariah, and not even MMB. Even the smattering of provisions conforming with the Shariah will be incumbently interpreted by the courts in the light of the Constitution, not in the light of the Shariah. Besides the fact that the interpretations of a secular court having no Islamic validity, the courts are all bound to interpret all aspects and provisions of MMB in the light of the godless constitution.

(3)  The courts will be empowered to appoint any person whether male or female, and whether gay or lesbian, non-Muslim or Muslim, to act as
the “Family Advocate”. This appointment will be in terms of the Mediation in Certain Divorce Act (Act No.24 of 1987). The Shariah is
completed extinguished in this process.

(4)   The secular court will be empowered to decree Faskh (Annulment) of a Nikah whereas such annulment is not valid in the Shariah. Faskh
in Islam is valid only if decreed by a Qaadhi or a properly instituted Shar’i Committee (Panchayat) in places where there is no Qaadhi.

(5)  Issues pertaining to Faskh (Annulment of Nikah) will be interpreted in the light of the Divorce Act. Hence, a baatil annulment
which is not valid in the Shariah will be decreed by the secular court.

(6)  Issues pertaining to Nafqah (Maintenance) will specifically be decided in the light of the secular law, not according to the Shariah.
Thus, MMB states:

“maintenance court” means a maintenance court as referred to in
section 3 of the Maintenance Act 1988.”

(7)  The definition of “Muslim” given by MMB is so ambiguous, that it will be the function of the secular courts to decide who is a Muslim.

(8)  The MMB provides for the automatic imposition of its provisions on even Muslims who were married before MMB came into operation.  If a
couple does not jointly elect to be excluded from MMB within 36 months, the Act will automatically apply to the couple. If the husband
wants to be exempted, not his wife, then he will not be granted exemption, and vice versa.

(9)  According to MMB, man and woman have equal status, whereas the Qur’aan Majeed directs: “For men there is a rank above women.” The
higher status of the husband is an obvious truth to all Muslims, male and female, who have any understanding of Islam. But, MMB provides for
the rejection of the Shariah on this issue.

(10)  Nikah under the age of 18 is criminalized. No Muslim under the age of 18 has the right to enter into Nikah, yet fornication is not a crime. Any Imaam/Sheikh/Maulana who performs the Nikah of a boy or girl of the age of 17 years 11 months will be in contravention of the Act and liable to a fine of R20,000 or a lengthy jail sentence. Rasulullah (sallallahu alayhi wasallam) performed the Nikah of Hadhrat Faatimah (radhiyallahu anha) when she was 16 years of age.

(11)  A man who marries a second wife in contravention of MMB is guilty of an offence and liable to a fine of R20,000 or a long jail
sentence despite the fact that Allah Ta’ala has granted men the full permission to marry up to four wives.  A man will be allowed to marry
a second woman only if the non-Muslim secular court or the non-Muslim Minister grants permission, and that too if the first wife consents.
The first wife’s ‘consent’ has been specifically engineered to block and cancel polygamy which Islam allows. No first wife will consent to
her husband marrying a second wife.

(12)  The MMB compels Muslims who had concluded Nikahs long before MMB to register their marriages under MMB, unless the parties decide not
to be bound by MMB. If they so decide, they have to apply for exemption in the way prescribed by the Act. Currently, Muslims are not
encumbered with this hardship. They are not criminalized presently if they do not register their Nikahs nor are they required to apply for
exemption under the present Marriages Act which applies to all citizens of the country. But MMB discriminates against Muslim by
singling them out for this hardship.

(13)  If a Muslim male wishes to enter into a second Nikah, then in addition to the requirement of having to apply to a court for permission, he has to incumbently have a written contract which will regulate his property. This too is a haraam encumbrance which MMB imposes.

(14)  An Imaam will be fined R20,000 if he registers a valid Islamic Nikah performed in accordance with the Shariah, if it does not conform to the provisions of MMB.

(15)  Any parent, Imaam, Sheikh, Maulana or any elder who advises their children, students, mureeds or any Muslim in general to abstain
from MMB (i.e. after it has been enacted as law) will be sentenced  to a fine or a prison term of one year.

(16)  The secular Divorce Act will have overriding importance as far as the courts are concerned. The MMB will be subservient to the secular Divorce Act, Maintenance Act, Mediation Act, and other secular Acts.

(17)  MMB obliges the husband to register a Talaaq Baa-in which is an irrevocable Talaaq. The validity of such a Talaaq according to MMB
requires two witnesses at the time of registration whereas Talaaq does not rely on witnesses according to the Shariah.

(18)  In terms of MMB, the husband’s Talaaq Baa-in will not be valid if he did not follow the provisions of MMB. In this scenario the Nikah
will have ended according to the Shariah while MMB holds it valid. The Talaaq will be valid in terms of MMB only if it is served on the wife
by the sheriff of the court whereas according to the Shariah these requisites are nonsense. Talaaq Baa-in is valid and terminates the Nikah without witnesses, without execution by the non-Muslim sheriff of the non-Muslim secular court, and without the other baatil paraphernalia required by MMB.

(19)  If the wife disputes the Talaaq-e-Baa-in despite the husband contending that he had issued such a Talaaq, then according to MMB the Talaaq is not valid. This incongruity is preposterously stupid. Despite a husband issuing Talaaq Baa-in in clear and unequivocal terms, MMB says that it is not valid simply because the wife disputes it. Thus, MMB dictates that the couple should continue a relationship
which according to Islam is adulterous.

(20)   A Talaaq disputed by the wife will be valid according to MMB only if the secular court resolves the dispute and decrees the Talaaq valid despite the fact that the husband states emphatically that he has administered Talaaq Baa-in to his wife.

(21)   The husband is required by MMB to institute court action within 14 days after he has registered his Talaaq Baa-in in the way prescribed by MMB. The application is to obtain a decree from the kaafir court confirming the dissolution of the Nikah by way of Talaaq. Furthermore, the application must comply with the rules of the secular court.

(22)  A husband who does not register his Talaaq Baa-in is subjected to the zulm (cruelty) of a fine of R20,000 or a lengthy jail sentence in Hell’s hole. Just imagine the kufr of this MMB! R20,000 fine or perhaps 5 or 10 years in Red Hell (Rooihell) for not registering a Talaaq!!! This is MMB in action if and when it gets enacted.  (By the way, ‘Rooihell’ is a famous jail in Port Elizabeth). Currently the law does not require Muslims to register Talaaq,
hence the cruelty of the R20,000 fine does not apply.

(23)  While according to the Shariah, a secular court’s annulment decree is invalid, i.e. it is not a valid Faskh, MMB confers this right to the secular court. Thus, while the wife will eternally remain in the Nikah of her husband, she will be conducting an adulterous relationship with another man whom she erroneously believes to be her husband. Her ‘marriage’ to the other man in terms of the Shariah will not be valid, and the children she begets from the adulterous relationship will be illegitimate.

(24)  The ‘faskh’ provision of MMB degenerates into a hilarious stupidity. This stupidity reads:  “…a faskh granted upon the application of the husband…”  This absurdity is indeed laughable and displays the density in the brains of the molvis and sheikhs who had assisted in the drafting of the kufr bill. A Faskh (Annulment) application is made by only a woman , the wife, not by the husband. If the husband wishes to end the Nikah, he only has to pronounce Talaaq. The Shariah does not provide for Faskh application by a husband.

(25)  Khulah, for its validity according to MMB must be registered by a marriage officer, and both the man and woman must appear in front of the officer. The Shariah ordains that Khulah is valid if both husband and wife agree to end the marriage in lieu of the wife paying the husband a sum of money which should not exceed the mehr amount.

(26)  According to MMB, the secular law Acts will apply regarding the welfare of minor children. The interests and welfare of the children will be decided in the light of secular laws, not in terms of the Shariah.

(27)  The court is given the right by MMB to divide the husbands property between the husband and wife on dissolution of the marriage. The court is empowered to effect a division of the husband’s property in a manner which it deems equitable. But according to the Shariah it is haraam for the wife to claim anything of her ex-husband’s assets. She is entitled to only maintenance during the Iddat period. Thus, the husbands wealth will be usurped – grabbed in haraam ways with the decree of the secular court.

(28)  According to the Shariah there is an order of priority to be observed with regard to custody of minor children in the event of dissolution of a marriage. It is haraam to deny custody to the rightful custodian without valid Islamic reason. However, according to MMB, the court has the sole right to assign custody to whomever it desires. Thus Section 10 (3) of the MMB states:

“….award or grant custody or guardianship to any person as the court deems appropriate,
in all the circumstances.”

(29)  According to MMB, the court should consider the report of the non-Muslim Family Advocate concerning the welfare of minor children. Obviously, it cannot be expected of a non-Muslim to be guided by the tenets of Islam. There is massive difference in the Islamic concept of child welfare and the secular, western concept which MMB wants imposed on Muslims.

(30)  MMB stipulates that Talaaq should first take place before a haraam civil marriage contract could be cancelled. This extremely
insidious provision of MMB states:

“…the court may not dissolve the civil marriage by granting a
decree of divorce until the court is satisfied that the accompanying
Muslim marriage has been dissolved.”

What this vile clause means is that if a man wishes to cancel the haraam community of property marital regime, he is obliged to first break up his home. He should issue Talaaq to his wife. The villainy and Satanism of this stipulation are absolutely revolting. Numerous Muslims, due to ignorance, have registered their marriages in community of property. This regime does not allow the estate of the deceased to be distributed in accordance with Allah’s Law of Inheritance. During the subsistence of community of property an Islamic will is not valid.
After they have been made aware of this haraam system, many Muslims seek ways of cancelling the community of property regime. This is possible only by obtaining from a court a decree to annul the civil ‘marriage’. While this is currently possible, MMB blocks this avenue and denies Muslims the right to cancel this haraam system. MMB seeks to achieve this satanic objective by stipulating that the husband in a happy marriage who desires to submit to Allah’s Law of Inheritance should first issue Talaaq to his wife. Only after he has broken up his home, may the court dissolve the civil marriage.  Indeed most evil and insidious is this haraam draconian provision of MMB. In fact, the whole MMB is evil, insidious and draconian.

(31)  Even if the husband has valid Shar’i reasons for refusing to issue Talaaq, MMB empowers the secular court to issue a decree of Faskh (Annulment) to terminate the marriage regardless of the fact that such annulment is invalid in terms of the Shariah. The Nikah remains intact. In this regard, Section 13 (2) of MMB reads:

“In the event of the husband, for any reason, refusing to
pronounce an irrevocable Talaq, the wife to the accompanying Muslim
marriage is entitled to apply for a decree of Faskh in terms of this
Act……”

Despite the husband being fully justified for refusing to issue Talaaq to his errant and misguided wife, MMB empowers the secular court to ‘annul’ the Nikah notwithstanding the fact that such ‘annulment’ has absolutely no validity in the Shariah.

(32)  MMB places the non-Muslim Minister of Justice in full charge of Muslim marriages. In terms of MMB, the Minister has the right to effect changes, make and bend rules and provisions at will and according to his discretion. The Shariah is completely expunged and non-Muslim governmental authorities and secular courts will be in full control of all Muslim marital affairs.

(33)  MMB empowers the Minister to make regulations to imprison Muslims who contravene any of the insidious provisions of this haraam so-called Muslim Marriages bill.

 

Source: Mujlisul Ulama of South Africa

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The South African Law Reform Commission makes available the aforementioned document on their website.

Download it here:

2003: Project 59: Islamic Marriages And Related Matters (July 2003

Please bear in mind that this Bill has not been passed. It is only a proposed draft of the Bill, the contents of which, have been and should continue to be placed under severe scrutiny from the Muslim public at large as it is in no way completely conducive to Shari’ah.

The Bill is severely flawed in many ways and will continue to remain flawed as there exists no future in which any true, believing Muslim will voluntarily allow the laws of Shari’ah to be manipulated, governed or dictated by a disbeliever.

 

Questions to the Jamiat Kwa-Zulu Natal

1. Are the Jamiat KZN and Jamiat Fordsburg in agreement on issues of Fiqh or are their major disagreements? If so, what are the various issues?

2. Who are the Muftis of Jamiat KZN? Does the Jamiat KZN have a fatawa council? If so, what is the link between the fatawa council and other branches of the Jamiat KZN?

3. Official response on ILM SA,  Tariq Ramadan and other individuals instrumental in the promotion of salafi, modernist and feminist ideologies?

4. Official response to the Family Eid Gah which takes place around the Durban area.

5. Is the Jamiat KZN in any way affiliated to the UUCSA? If so, what does this position entail?

6. What is the stance of the Jamiat KZN on the MPL and MMB? Is there any official response to the fatawa regarding those who subscribe to the MPL penned by Mufti Salejee and which was discussed out of context on CII?

7. Is Jamiat aware of salafi/modernist madressahs for children? What is the Jamiat doing to counteract this?

Just a note: I am in no way affiliated with The Majlis organisation or anybody else. Please leave the inferiority complexes out of this and merely provide simple, academic responses to the questions outlined.