WHY THERE IS NO ROOM TO ENTER INTO NEGOTIATIONS REGARDING THE UN-ISLAMIC MUSLIM MARRIAGE BILL (MMB)
DO NOT BE FOOLED REJECT THE MMB NOW.
There are some misled organisations who have taken the view that certain aspects of Islamic Family Law should be introduced within the judicial system and be governed by the courts. Whilst at first glance this may appear commendable, a deeper study of the issue reveals that the harms far outweigh any perceived benefit. It follows that Islamic Law will have to be, now or in the future, refashioned and transformed in order to comply with the Constitution, which is the supreme law of the land. Any interference with the Shari’ah is to us unacceptable.
Know the bill is going to ‘regulate’ (change, modify, alter) the Shariat, NOT ‘recognise’ (implement, enforce, apply) the Shariat.
1) Those that are pro the MMB in most cases have not even seen the Bill, physically or in their dreams, most have not even made Istilaam (touch by indication) of the Bill whilst, those few which have seen have not properly understood what they are heading towards.
2) Before taking a second wife or issuing a divorce one has “to inform all interested parties” that includes all in laws, all family members, domestic workers, feminist groups, gardeners, etc. See section 3 (6) of MMB.
3) Many have existed in the bill since its very inception. The government did effect some changes to the previous version.
4) All the other un-Islamic provisions remain unchanged. The current Bill has included them without modification.
5) The Law of Allaah Ta’ala is not related to majority support and majority acceptance.
6) If the entire world supports kufr, it will not become halaal.
7) The majority support will not transform kufr into Imaan.
8) On the contrary, the courts are under constitutional obligation to interpret, adapt and develop customary or religious law to conform to the spirit and letter of the Constitution.
9) Currently the courts have absolutely no jurisdiction over Islaamic Marriages (Nikahs) since such marriages are non-existent in terms of South African law.
10) No Muslim has ever proceeded to a secular court in this country to obtain a decree of Faskh or Talaaq or to terminate his/her Islaamic Nikah.
11) The courts simply will not and can not pronounce on the validity or invalidity of Talaaq nor issue any decree of Faskh. But MMB is today aiming to cloak the Secular courts with this power which the Shariah vehemently rejects since a secular court has absolutely no wilaayat (jurisdiction) in matters of the Shariah.
12) When Muslims seek relief in secular courts, it invariably relates to monetary matters.
13) Even if a decree of a Secular court conforms to the Shariah, it remains invalid.
14) Since the secular court according to Islaam lacks wilaayat (Jurisdiction and Authority), and the imperative requisite for valid wilaayat is the treasure of Imaan which the non-Muslim judge lacks.
15) The decree of a Qaadhi (Islamically Qualified Judge) can not be overturned by even the Constitutional Court. But when the MMB weapon is placed into the hands of the secular courts, they will have a free licence not only to issue baatil talaaq and faskh decrees, but to modify, adapt, and develop Shaar’i ahkaam in the light of the Constitution, and impose it on Muslims as ‘Muslim Personal Law’.
16) The Law of South Africa does not demand Muslims to abandon the Shariah in their matrimonial affairs.
17) With the MMB the Shariah will be adulterated as the courts will be empowered to interpret the Shariah with MMB in the light of the Constitution.
18) So when there is no Muslim Act of any sort in front of the court, the question of adapting and developing Islaamic Law is absurd.
19) It is naivety at its height to believe that MMB can override the constitutional rights of anyone notwithstanding any bilateral waiving contract.
20) The judges will be under constitutional obligation to render the Shariah subservient to the Constitution with their interpretation, adaptation and developing ordered by the Constitution.
21) The Law is not concerned with such rulings which the religiously-minded Muslims seek and submit to.
22) The courts have no right to intrude into our private religious domain.
23) MMB is thus the introduction of havoc for Muslims.
24) MMB itself in its present form does not display the distinct ethos, character and values of Islaam.
25) Currently, without the un-Islamic MMB, Muslims who desire the Islaamic system for their marriages are allowed by the Constitution the free choice to adopt the Shar’i system. There is no interference by the State.
26) Should MMB be legislated, then a plurality of wives via the sacred system of Nikah will be a criminal offence with a fine of R20,000 if the approval of the court is not acquired.
27) MMB does in fact introduce the gay/lesbian Family Advocate system into its fabric.
28) Is it really possible that the architects of the MMB have genuinely failed to understand the power of the courts to override Islaamic norms and values when these clash with the Constitution?
29) Presently there is no law to compel Muslims to be saddled with a Family Advocate.
30) When the Shariah is renounced, the logical consequence is to embrace haraam and kufr.
31) The secular Maintenance Act and the spirit and purport of the Constitution will determine the period of maintenance.
32) The stipulation of Muslim judge does not apply to the Supreme Court of Appeal. Whenever a High Court decree will be taken on Appeal to the Supreme Court there is no guarantee of the matter being decided upon by a Muslim Judge.
33) When a judge purports to be decreeing under the umbrella of MMB, the litigants believe that judgment will be decreed according to the Shariah.
34) The decree of the court will remain baatil (invalid) regardless of the presence and advice of Muslim assessors.
35) The wilaayat (jurisdiction) of a secular court is just not valid in terms of the Shariah.
36) MMB envisages do the contrary of implementation of the Shariah. They inhibit and prevent the implementation of the Shariah. Not, only inhibit and prevent, but adulterate the ahkaam and yield baatil effectssuch as invalid Talaaq, invalid Faskh, invalid Nikah (in the absence of a male Wali), invalid distribution of assets, invalid custody of minors, invalid formulation of rules by the non-Muslim cabinet minister, etc.
37) As far as the haraam regulations and penalties of MMB are concerned, Muslims themselves, are asking for their promulgation, not the government.
38) Being 18 years old is a compulsory requisite for the validity of nikah in terms of MMB.
39) The permission of guardians and or the non-Muslim minister/court is a vital requisite for the validity of nikah in terms of MMB.
40) It relates to nikah under MMB.
41) Now when a nikah is not valid, as it will be in MMB religion, then it follows that in terms of MMB the offspring of the union will be illegitimate in exactly the same way as it is currently on account of Muslim marriages being unrecognized.
42) Only a contract which conforms to the Shariah will be a nikah.
43) The non-Muslim minister/court may or may not declare the nikah valid. The final arbiter to decide whether the nikah is a “valid Muslim marriage” will be the non-Muslim cabinet minister.
44) In terms of MMB, a Molvi/Imaam/Sheikh who happens to be a marriage officer may not perform the nikah of a 17 year-old.
45) It is lamentable that despite being Ulama, they have miserably failed to understand the operation of the principle of the lesser of the two evils which applies only when a third halaal alternative is not available. In case of MMB, there was no compulsion by any authority to become a party of the Project Committee to transmogrify and destroy the Shariah.
46) In this haraam system, an Islaamic Will is not valid.
47) What happens to the parents, grandparents or the Maulana Sahib who refrains from informing the prospective spouses of their right to opt for haraam MMB? Section 6 (9)(c) states:
“The person facilitating the marriage referred to in paragraph (a) who fails to comply with the provisions of paragraph (b), is guilty of an offence and liable upon conviction to a fine not exceeding R20,000.”
48) The question which Muslims are asking is not: Why will it be necessary to register a talaaq? The question they are asking is: “Why fine a husband R20,000 or sentence him to jail if he has failed to register his Talaaq with the secular court which has no Shar’i status?” Section 9 (4)(a) of MMB states: “Any husband who knowingly and wilfully fails to register an irrevocable Talaq in accordance with subsection (3) is guilty of an offence and is liable on conviction to a fine not exceeding R20,000.”
49) Registration in terms of this provision is synonymous with validity. The Talaaq may not be registered because its validity is being contested.
50) MMB says that even if the husband confirms that he had issued Talaaq Baa-in, it will not be valid if the wife disputes it. The validity will depend on the ruling of Judge John in the secular court.
51) Secular courts have absolutely no power to issue decrees of Talaaq and Faskh regardless of the judge being a ‘Muslim’.
52) All the MMB provisions pertaining to division of assets are haraam.
53) The contention that MMB is the only viable option is utterly baseless.
54) If one opts for MMB, it will be the same as selecting community of property or ante nuptial contract with accrual. They are all the same un-Islamic breed.
Some say half a loaf is better than none. This is not even half a loaf; it is completely cancerous.
Others say, ‘let us at least get one foot in’. We say that if the foot was going into Jannat, Halaal and permissible, then let us go – but this is going to Jahannam, Haraam and non-permissible.
Unfortunately, the impression given via the media and Radio, by compromising the truth, riding the defects that one is going into Jannat. What a shame!
Link to petition in opposition to the MMB: