Divorcing spouses because of religion

This article aims to help practicing lawyers who are protecting the right to freedom of religions or beliefs of a Muslim woman who marry a non- Muslim man who face the threats of forced divorce by the Family Court or who may face the threat of being charged with adultery under the Criminal Act, because the family law does not allow this sort of marriage. The objectives of this article are to train lawyers to do their job in defending the victims of FoRB violations and to enhance their role in facilitating the investigation of such cases and ensuring the protection of the rights to freedom of religion or belief.

Introduction

The Personal Status Law for Muslims was issued in 1991 as the first legalization of personal status issues in Sudan. The law contained the provisions of: marriage, divorce, capacity, guardianship, gift, will, endowment, and inheritance. Prior to the issuance of this law, work in the personal status courts depended on the most probable opinions from the Hanafi School of jurisprudence in the beginning and then the Maliki School. In addition to the pamphlets and publications issued by the senior judge until 1983 those which were issued by the Supreme Court - Personal Status Department after that year. However, the courts did not strictly adhere to a particular school of jurisprudence. The courts concerned with the consideration of personal status matters were called Sharia courts, and the first regular Sharia Court was established in 1902 according to a regulation called the Sharia Courts Regulation. As for the Personal Status Law for Muslims of 1991, it relied on the Hanafi school in most of its texts, but it did not fully adhere to it, even though it had mentioned a text in Article 5 on the necessity to work with the correct view of the Hanafi school in that there is no provision in this law.

Step 1. Interviewing the victim and collecting primary data

The marriage between a Muslim woman and non-Muslim man is prohibited under the classic Islamic Jurisprudence and it is also an unacceptable matter among Muslim communities, especially among extremist groups. Therefore, the lawyer must exercise caution and give priority to the safety of the spouse, their family, and also to himself.

When the lawyer meets the husband and wife, s/he has to ask them about their full name, religion, job, address, the date of marriage, whether the marriage was concluded in the Church or another place, the marriage document, the case number, how their case was reported and reported it. Then the lawyer has to give the victims enough time to talk about the facts of the case and their thoughts, because it is very important to understand what do the victims think about it. Also, it is important to know if the spouses were threaten by an extremist persons before, because the lawyer has to assess the risk inside the court and by the end of the case if the victims were declared innocent by the court.

Step 2. Legal analysis

The two pillars of the marriage contract under the Personal Status Law for Muslims in Sudan 1991 are: the two spouses, and acceptance, as stipulated in Article 12 of the law; Article 13/a of the same law stipulated that a woman should not be forbidden, temporarily or permanently, to the man, while Article 3/d stipulated that the husband be of the same capability as the wife. according to the text of Article 15 and the articles that following it the forbidden in absolute terms are those who are forbidden by lineage , such as origins and branches and forbidden by intermarriage like the stepmother or the wife’s ascendants and descendants; or forbidden by breastfeeding If breastfeeding occurs during the first two years with five feedings that satisfy the breastfed person and the forbidden by the curse.

 

What we would like to focus on in article 19 is Paragraph E of the Article, which forbids marriage to a woman who does not believe in ibrahimic religion, which show a clear discrimination against many Sudanese women, such as women who are atheists or those who believe in peigon or old African religions, despite the recognition of the constitutional document and the laws concerning those who believe in “noble believes” and those who have no religion. On the other hand, Article 21 stipulates that the values lie in religion and morals. Although no specific religion is mentioned, the intended religion here is Islam only, in spite to the fact that the law is specific to Muslims, Article 114/1 concerning the religion of the child in custody, stipulates that if the custodian is not a believer of the religion of the Muslim father of the child in custody, his/her   custody is forfeited by the completion of the child in the fifth year of age or when there is a suspicion of exploiting the custody, to bring up the child in other than the religion of his father.

As for Muslim women, it is never permissible for them to marry a non-Muslim man. According to article 12 which states the pillars of marriage: The couple and the acceptance and each of these pillars has its conditions. One of the first pillars' conditions is the husband's efficiency; this 'efficiency' is defined in article 21 as religion and morality, and we do not need to prove that the religion mentioned means Islam. Article 60 says such marriage is null as one of its pillars or the pillars' condition is missing.
Rather, marriage of a Muslim woman to a non-Muslim man is considered a criminal act according to the provisions of Article 45 of the Penal Code of 19912, as the third clause stipulates that the marriage is unanimously considered null and void.

Consequently, it is clear that the Personal Status Law does not stand at the same distance from all religions, but rather distinguishes citizens on the basis of religion, placing the Islamic religion in the first place and then Christian and Jewish religions, and in the third place other religions and other decent beliefs and non-religious people .

 To clarify the legal implications of religiously prohibited marriage in the Personal Status Law, I will present two examples of Sudanese court applications. The first example is the jurisdiction of the Judiciary Court in 1968 in the case of Ustaz Mahmoud Mohammed Taha, and the second is the jurisdiction of Hajj Youssef’s Criminal Court in the case of Maryam Maryam Yahya Ibrahim and Daniel WaniBisenso in 2014. In the first case, two professors from Omdurman Islamic University submitted a request to the Sharia Supreme Court of Appeal against the President of the Republican Party, Ustaz Mahmoud Mohamed Taha in which they requested, among other demands, to announce the apostasy of Mahmoud Mohamed Taha from Islam and divorce his Muslim wife from him. The court accepted their petition, and then the court heard the statements of the two plaintiffs and four witnesses in the absence of the defendant, and after that, it issued a judgment in absentia on 18/11/1968 in which it ruled to the two plaintiffs in deference of the defendant, Mr. Mahmoud Mohamed Taha, the president of the Republican Party, that he was an apostate from Islam. The rest of the requests contained in the petition were disregarded because they are matters that are related to and arise from the judgment. In the second case, the Criminal Court of Hajj Yusif decided that the marriage of Mr. Daniel WaniBisenso and Mrs. Maryam Yahya was invalid and then convicted Mrs. Maryam Yahya under article 146 of the Criminal Code of 1991 (adultery) and sentenced her to 100 lashes. On the other hand, the Criminal Court acquitted Mr. Daniel for the same crime for lack of moral element of the crime, which is known in the criminal law as criminal intent, on the grounds that he did not know, at the time of committing the crime of adultery with his wife, that she was a Muslim and not Christian.  After Maryam's acquittal, a judge of the Court of Appeal pointed out the necessity of filing a marriage annulment case before the competent Personal Status Court. The request to divorce Mr. Taha from his wife presented by the two professors at Omdurman Islamic University, and the declaration of the invalidity of the marriage of Mrs. Maryam and Mr. Daniel, are two vivid examples of the spread of Salafi fundamentalism in Sudan and its infiltration into the courts of justice. Fundamentalist groups place barricades in the way of the fusion of members of society through the institution of marriage because of religion, as they do not allow the marriage of Muslim women to non-Muslims.  In their view, they rely on jurisprudence opinions in an environment very different from our present, and in total disregard of the developments of reality such as identity, citizenship, constitutional rights and the equality required by these principles, regardless of religion or other grounds of discrimination. This is further exacerbated by the fact that the state, through its judicial apparatus and law enforcement authorities, is influenced by these fundamentalist groups in preventing their citizens from intermingling with each other, and kindling the fires of divisions and disputes among them through privileging one religion or race over another in a country which is blessed by unparalleled religious, ethnic and cultural diversity.

The core problem is that the state does not stand at an equal pace from citizens, but rather prevents their fusion into a single mold that could be a common denominator for future identity. This Salafi jurisprudence, which separates spouses by the ruler, emerged in a historical period which is more than a thousand years old, when the world was divided into two camps: the camp of war and the camp of peace. Thus, this jurisprudence cannot be read in isolation from the objective context in which it was produced (factors of time and place, culture, economic, and sociopolitical situations). But quoting it and planting it in a different environment, without regard to the objective circumstances, has led to and will lead to a serious imbalance in sensitive issues such as identity and citizenship. An enlightened reading of the texts of religion is therefore necessary to suit the objective circumstances of our contemporary life.  The Personal Status Law, as it stands, is a stumbling block to the development of the society. In other words, the choice of the husband or wife must be the concern of both parties, and religion in this case may be a factor of choice for the person; it is his/her right to refrain from marrying another person if the religion he embraces prevents him from this engagement, but it is not true that the state should be a party to this choice, lest it distinguish between its citizens. State interference to separate spouses for religious reasons locks the door to the freedom of assuming identity and good management of religious and ethnic diversity in one community. 

Step 3. Intervening as representative of the spouses

There is no doubt that discrimination based on religion is a flagrant violation of religious and personal freedoms and the right to form a family with the full consent of the two parties. Also, all these rights are stipulated in the constitutional document and international covenants ratified by Sudan.

According to Advocacy Act 1983, the licensed lawyer is considered a public attorney and has the right to represent clients without any need to show a power of attorney or any other document to the court.

In these types of cases, a lawyer can take one of two ways:

First, he must submit a petition to protect a constitutional right before the Constitutional Court and ask it to issue an immediate order to suspend the proceedings of the case before the First-Degree Court until the conclusion of the constitutional case. And to clarify in the constitutional petition the constitutional rights that were lost according to the facts of the specific case. At the end of the petition, the Constitutional Court is required to write off the cases against the spouses and declare the unconstitutionality of the texts on which the cases were based.

Second, the lawyer continues to oppose the annulment of marriage or the criminal case, if there is an accusation of the crime of adultery (zina), it is important to submit a request to the criminal court to transfer the case to the Sharia court, in order to determine the validity or nullity of the marriage and then return the papers to the criminal court to issue its ruling, because the criminal court is not competent to consider the validity of the marriage contract - even though it used to play this role unlawful. In the event that the Sharia court decides to nullify the marriage, the decision can be opposed to all courts of various degrees, ending with the Supreme Court’s review circuit, and then the lawyer can submit a constitutional appeal petition before the Constitutional Court after exhausting all degrees of grievance provided by law. In the event that the criminal court rejects the referral request, we also advise that the decision be appealed, as indicated above.

The second option in our estimation is the surest if we take it into account that the Constitutional Court often takes the failure to exhaust available grievance methods as a reason to write off the case and close the door to challenging the constitutionality of laws based on Islamic sharia law.

When the lawyer appears on behalf of the spouses before the court of first instance, s/he shall use all legal and technical skills to refute the criminal case of adultery or the annulment of marriage before family court, and s/he shall submit all necessary documents that support the case, and more specifically, the following documents:

Marriage documents issued by the Church or issued outside Sudan if the marriage contract was signed outside Sudan,

Any decision which supports intermarriage regardless of the spouses’ religion made by regional or international committee,

Any books or articles written by Muslim scholars who support intermarriage regardless of the spouses’ religion.

When the lawyer submits the document mentioned in (2) and (3) s/he is advised to ask the court to take judicial notice of these documents according to sub-article 14 (4) of the Evidence Act 1994.

Step 4. Taking measures to ensure safety of the victim and witnesses

In cases of intermarriage, especially between a Muslim woman and non-Muslim man, the spouses may face many threats of killing or torture whether by the security forces agent of the theocratic state or by extremists and these threats also apply to their witnesses who almost support this type of marriage. So, the lawyers have to report these threats to the police, and they should take the issue seriously and track the perpetrators with the police whether they are individuals or security members in order to protect the victims and witnesses.

Step 5. Appealing decisions affecting the interests of the victim

If the Court of first instant, whether criminal court of family court, issued a decision which affects the interests of spouses, the lawyer has to appeal this decision to Court of Appeal within 15 day from the date of decision according to article (184) of the Criminal Procedures Act 1991 and/ or (177) of the Civil Procedures Act of 1984. If the Court of Appeal supports the decision of the Court of first instance, its decision should be appealed to the Supreme Court. And if the same happens at the Supreme Court, then the appeal should be submitted the Review Circuit at the Supreme Court.

Finally, after the exhaustion of these stages of litigation, the lawyer shall submit a constitutional action before the Constitutional Court claiming the Court to declare unconstitutionality of articles (13) and (21) of the Personal Status Law for Muslims Act of 1991 and to declare the marriage celebration true.