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March 20, 2008

UK: Muslim Marriage "By Phone"

On Wednesday March 19, the Court of Appeal ruled that a marriage which had been made over a telephone was invalid, even though it was "Islamically" valid. The news is carried by the Financial Times, Times, Metro, BBC and the Telegraph.

The ruling was made by three appeal judges, Mr Justice Wall, Mr Justice Thorpe and Lady Justice Hallett. What makes this case special is that the "groom" in this telephone marriage was mentally handicapped. He had never met his "bride", a woman known only as "NK" who lived, and still resides, in Bangladesh.

The case was brought to the Court of Appeal by Westminster Social and Community Services Dept, which has acted as the provider of care for the 26-year old man since he was aged only four years old. Known only as "IC", the "groom" is said to have mental faculties no higher than a three-year old. The "groom" has parents who came originally from Bangladesh, but they have lived for years in Britain.

Under Islamic law and also under Bangladeshi law, the marriage between IC and NK is valid, even though neither party has met the other.

IC has home help on five mornings a week, and five days a week he attends a day center, and also is given respite care (where Westminster Social and Community Services Dept takes him into care to allow his family some relief from the duties of caring).

The panel of three judges ruled that IC had no capacity to engage in marriage or to give his consent to marriage. He was said to be suggestible and vulnerable.

The marriage took place in September 2006, but Lord Justice Thorpe said that the union was "potentially highly injurious". He said: "The role of marriage in the life of one so handicapped is inconceivable in our society, and as a matter of law marriage is precluded."

He stated that "Were IC's parents to permit or encourage sexual intercourse between IC and NK, NK would be guilty of the crime of rape under the Sexual Offences Act. Their [his parents'] engineering of the telephonic marriage is potentially if not actually abusive of IC. It is the duty of the court to protect IC from that potential abuse."

In the parents' defense, Lord Justice Wall argued that in Bangladesh, such a union would have ensured some security for an individual like IC when his family was no longer able to provide care. The parents had argued that they wanted his "marriage" to be recognized under UK law, but this was not permitted, even though it had validity in Bangladesh and under Sharia.

In Bangladesh, the marriage was officially viewed to have taken place on Bangladeshi soil, but as the family had intended to bring the "bride" to Britain, British law had to take precedence.

The panel of judges did not allow the parents the right of appeal to the House of Lords, and a court order ensures that IC and NK will never be allowed to meet.

A full High Court hearing on IC's case will be held in August 2008.

In this case, it seems that though naive about British law, the parents meant well for their son. It has not been disclosed if NK was aware of the extent of the disabilities of her "husband". The parents of IC had arranged this union, and as such they should have made NK know of his situation.

Forced Marriages

At the start of February, the Centre for Social Cohesion produced a 169-page report on problems with marriages in Britain's cultural minorities. Muslim culture was examined, but it was not the only one where marriages existed which discriminated against women. The report was entitled "Crimes of the Community: Honour-based violence in the UK", and was written by James Brandon and Salam Hafez.

This report described how a 15-year old girl from Pakistan was urged to engage in a telephone marriage with a man living in Sheffield. She had been shown a photograph of a handsome young man. She arrived in the UK in April 2007 to meet her "husband". He was unemployed and aged about 40, far older than he had seemed in the photo she had been shown. Disturbingly, the girl found out that her "husband" had the mental age of a child of five. The man's family also tried to get the "bride" to engage in prostitution. Additionally they tried to get the girl raped. She is now in a refuge.

There is a real problem with "arranged marriages" within the Muslim community. There is no clear definition of where an "arranged marriage" becomes a "forced marriage". And forced marriages, when they are resisted, can lead to "honour violence" or to the situation of honor killing, as appears to have happened to Shafilea Ahmed in 2003. On January 12 this year, a coroner ruled that Shafilea, who was aged 17 when she died, was murdered. An estimated 109 honor killings are thought to have taken place in Britain over the past decade.

Forced marriage affects at least 200 young Muslim girls a year who are taken abroad - mainly to Pakistan - to be made to marry a boy against their will. These are the ones known to seek help from Britain's Foreign Office.

The UK government had planned to outlaw forced marriage since 2004, but the Muslim Council of Britain had been behind pressure on the government to drop these plans. On June 6, 2006, the Home Office announced that it had decided to abandon plans to introduce new legislation to outlaw such unions. It said that it would use existing laws to tackle the problem.

That decision has proved to be futile, and once again, it seems there are UK plans to outlaw forced marriage.

In Pakistan, where most forced marriages of British Muslim girls take place, there is ambiguity in the law. Many victims of forced marriage are aged under 16, which would make the marriage illegal under UK law. In Pakistan, the age of consent is 16 for a girl and 18 for a boy, but girls can still be married at age 14.

Many such marriages involve first cousins, a practice which has led to an increase of genetic illnesses caused by recessive genes in inbreeding. When this issue was raised by Phil Woolas in February this year, Prime Minister Gordon Brown's spokesman said: "This is a scientific debate. It is really for scientific experts to comment on."

There is scientific evidence. A 2007 article from Neurology Asia entitled "Arranged Marriage, Consanguinity and Epilepsy" by M. M. Mehndiratta, B. Paul and P. Mehndiratta discusses this issue in depth. In 2005 a report commissioned by Labour MP Ann Cryer found that couples of Pakistani origin accounted for 30% of all recessive gene- created birth disorders, even though births from Pakistani-origin couples were only 3.4% of the national total.

At the start of March, the British Children's Minister Kevin Brennan said that in Bradford in Yorkshire, 33 girls who should have been in school had "disappeared". He suggested that they had been sent off for forced marriages abroad. Keith Vaz, a former minister and a Muslim, added that there were missing girls in 14 other areas of Britain.

A report published on March 10 this year which highlighted similar cases in Luton, suggests that previous figures on forced marriages are gross underestimates. Margaret Moran said: "If you multiply the statistics up and down the country, we're talking about 3-4,000 cases per year rather than 300."

Arranged marriages are supported by Dr Muhammad Abdul Bari of the Muslim Council of Britain. Such marriages are not officially Islamic, and generally reflect customs of rural areas of Pakistan and Bangladesh.

Such marriages used to be common in Britain, but they became obsolete because they were generally regarded as cruel and abuse of the rights of the young, particularly young women. This is what Robert Burns wrote on the subject:

How Cruel Are The Parents

How cruel are the parents
Who riches only prize,
And to the wealthy booby
Poor Woman sacrifice!
Meanwhile, the hapless Daughter
Has but a choice of strife;
To shun a tyrant Father's hate-
Become a wretched Wife.

The ravening hawk pursuing,
The trembling dove thus flies,
To shun impelling ruin,
Awhile her pinions tries;
Till, of escape despairing,
No shelter or retreat,
She trusts the ruthless Falconer,
And drops beneath his feet.

Robert Burns, 1795

Posted by Giraldus Cambrensis at March 20, 2008 10:31 PM

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Posted by: Spipou at March 22, 2008 5:52 PM

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