3 Australian law regarding violence against women

    3.1 Attitudes to Violence in Australia

It is now accepted that family violence is one of the most widespread and underreported crimes in Australia’ since people are more likely to be hit, physically injured or killed in their own homes by another family member than anywhere else or by anyone else.’ Family violence includes assault, threats of assault, damage to or threat of damage to property, harassment, molestation or behaving in an offensive manner. It can be psychological as well as physical in nature;’ it is any form of abuse that occurs within family relationships or within a domestic setting. In 1983 Victorian police received 50,000 calls relating to family violence. Although 85% of respondents considered family violence to be a serious issue, 20% considered the use of force to be legitimate in certain circumstances.’ This is an indication of the extent of our society’s acceptance of this kind of behaviour. It was also found that the legitimate use of violence to achieve a specific end is a principle firmly entrenched in Australian culture.’

Traditionally law was reluctant to intervene in the area of family violence because it occurred in the ‘private sphere’ and therefore was considered to be beyond the realm of the law.’ It is only recently that the law has sought to intervene in family relationships and adopted a more assertive role.’ Domestic violence was first addressed in Victoria when the Labor Government established the Domestic Violence Committee in 198 1. Subsequently a number of different committees were established to conduct research into the matter, with a report released in July 1985 called “Criminal Assault in the Home: Social and Legal Responses to Domestic Violence”. The Crimes (Family Violence) Act 1987 was a direct result of this report.’

Australian family law has also opted for gender neutral language; however, some commentators see this gender neutrality as an effort to disguise the gendered nature of violence and the role that it plays in women’s subordination. As Behrens points out .”…it would have been a significant step forward to see some explicit statement in the legislation about the gendered nature of violence in the home.”‘

On the other hand, Islamic Law from the beginning 1400 years ago has used very gender specific language and explicit statements condemning violence against women by their

In Victoria, the law offers two main forms of protection for women who are victims of violence:

• an application for a restraining order (injunction) pursuant to s. 114 of the Family Law Act 1975 (Commonwealth); and/or
• an application for an intervention order under the Crimes (Family Violence) Act 1987 (Vic).

There is the third option of reporting the matter to police as much of family violence is criminal in nature and therefore should be prosecuted by the police. However, the offence must be proved in court beyond a reasonable doubt, which may be difficult to establish if there are no witnesses or corroborating evidence. Criminal proceedings do not necessarily provide a future protection for the victim, but it is punitive to offender for his past action, if proven guilty.

FAMILY LAW ACT 1975 (COMMONWEALTH)

Injunctions under s114 of the Family Law Act are civil proceedings and are made for personal protection while providing the police with a power of arrest without a warrant. However, power of arrest only applies to injunctive orders made for personal protection purposes. The current understanding of the Act seems to be that orders restricting entry onto premises or place of work are not for personal protection purposes. The police must be satisfied that a current injunction does exist. However, the injunctions are not listed on a central computer system and if it is registered at the complainant’s local police station, it is filed away in the collator’s office and generally is not accessible to the police attending the call. In most cases the police will be relying on sighting the wife’s copy and if she does not have this with her they will be unable to act.” The onus is placed on the applicant, mainly the wife, to apply for an injunction. Where a breach does occur, the onus is on the woman to prove beyond reasonable doubt that such breach has occurred. And even if this is established the Family Court seems to be of the opinion that its punitive powers should be used sparingly and only in exceptional circumstances.” Furthermore, it is argued that police are generally reluctant to intervene in family violence because these situations continue to be misconceived as belonging outside the sphere of the criminal law.”‘

CRIMES (FAMILY VIOLENCE) ACT 1987 (VIC)

An intervention order can be applied for by a member of the police force, the victim or a third party with the written consent of the victim. Where a wife is subjected to harassment, molestation, offensive behaviour, threats, assault, or threats to damage to property and that behaviour is likely to recur, a Magistrates’ Court can grant an intervention order which places various restrictions on the defendant’s behaviour.” Such an intervention order is effective once it is personally served on the defendant or effective immediately if the defendant is in court. A breach of any part of the order is a criminal offence and provides members of the police with authority to arrest the person without a warrant.

 There are many views about how effectively these laws work to protect women against violence from their husbands or family members. It is argued that the separate treatment of “family” violence (from criminal behaviour or assault) leads to favouring of civil rather than criminal remedies and therefore downgrades family violence.” Tobin concludes that despite the advancements in the protection of women subjected to family violence, the law continues to serve as an institution which legitimises the violence inflicted upon women.”‘

4 Sources of Islamic Law (Shari’ah)

Like other legal systems, Islamic Law has sources from which it derives its rules and regulations. The primary source of Islamic Law is the Holy Qur’an, considered by Muslims to be the word of God; the secondary source is the Sunnah, which is based upon Hadith. Hadith are the collections of sayings and practices of Prophet Muhammed. The tertiary source is 1jma which is the consensus of the opinion of the learned scholars.” The fourth source is Qiyas which is the analogical deductions that provide understanding derived from the Qur’an and Sunnah, covering the myriads of problems that arise in the course of human life.”

The Qur’an, in its original Arabic form, is considered to be error‑free. The translations of the Qur’an are not considered as authentic because there are often problems in the accuracy of translation of any language. Translations are also influenced by the translators understanding of the Qur’an. Therefore, translations can be refuted and are considered fallible. 1jma and Qiyas are secondary sources of the law and are also considered to be fallible and refutable. In this research, I will be pointing out a fallacy of the majority of scholars, as identified by some recent scholars, in relation to the interpretation of a verse in the Qur’an, namely Chapter 4, Verse 34. This has lead to the misconception amongst both Muslims and non‑Muslims that the Qur’an allows men to beat their wives.

5 Islamic Law Regarding Violence Against Women

    5.1 Equality Among Sexes

There is a common perception that Islam regards women to be second‑class citizens. However, contrary to the misconception, according to Islam, men and women are of equal importance but they are not the same. Treating them the same would mean that one is disadvantaged because their individual needs are not taken into account. The Qur’an declares the equality of sexes in a number of verses. It declares men and women were created as pairs” pointing to the complimentary nature of the relationship and not a competitive nature. It is explicitly pointed out that men and women are partners, pointing to the nature of their friendship and equality.” The Qur’an also declares that women are completely equal with men in the sight of God in terms of their rights and responsibilities.”

While we often hear and read about women’s duties and women’s rights in Islam there is very little literature available on men’s duties towards women. One may readily find literature on men’s rights which women should observe. This is not due to the lack of verses in the Qur’an or Hadith about men’s duties and their code of conduct towards women. It is due to the cultural and traditional perspectives which have influenced the Muslim jurists/scholars and the issues they have chosen to emphasise. This is not to discredit their valuable work, but one must acknowledge that there are biases and gaps of information which need to be completed.

The misconception that Islamic Law allows men to be violent towards their wives is a view that is predominant amongst the cultural Muslims. When one examines the overall code of conduct for men, prescribed in the Qur’an and Sunnah, it is clear that Islamic Law does not in any way condone violence against women by husbands or by anyone. On the contrary, it strongly condemns such behaviour.

    5.2 Brief Outline of the Prescribed Code of Conduct for Men

The only sources I will be using are the two primary sources of Islamic Law, Qur’an and Sunnah. It is not necessary to use any other source of information, as the two primary sources are sufficiently clear on the issue,

VERSES FROM THE QUR’AN

The Qur’an clearly indicates that marriage is about sharing between the two halves of humanity, and that its objectives besides perpetuating human life, are emotional wellbeing and spiritual harmony. It is based on love and mercy. 12 Men are explicitly ordered to live with their wives in kindness and to ignore anything they may dislike about their wives. They are given equal roles and responsibilities, in serving the Creator, God. In cases of marital problems equality is emphasised, by recommending the appointment of an arbiter from his family and another arbiter from her family, to arbitrate and reconcile the matter.

God, in the Qur’an has commanded men to treat their wives with great kindness even when they are going through divorce.” Men are ordered to pay maintenance to the women they divorce.” They are forbidden to misuse their right to (talaq) divorce a woman out of court and they are ordered to either keep the relationship going in a good manner or to divorce her in kindness, and not be cruel to her.” Husbands cannot abandon their wives nor keep them in suspense.” Men are also forbidden to take back any property, income, inheritance or gifts they have given to their wives nor to take them by duress, fraud or force.”

HADITH (SAYINGS OF THE PROPHET MUHAMMED)

• Through hadith, men have been explicitly prohibited to hit their wives.
• Those men who hit their wives, they are not from us.”
• How do you hit your women and then sleep with them thereafter?” 
• Fear God regarding women, for you have taken them in marriage with the trust of
• God.” [therefore treat them with respect accordingly for you are accountable to God]

The Messenger of Islam, Muhammed, has declared that men who are best in faith were those who treated their wives best.” He declared that women were the twin halves of men.” Men are also encouraged to treat their daughters in kindness and are ordered not to insult them and not to choose their sons over their daughters. God declares that heaven will be the reward of such good treatment. Being a mother is given triple the reward and children are urged to love and respect her.”

A husband is also obliged to financially provide for his wife and family. He is held in high regard for it.” Islam has also recognised the importance of a wife’s sexual rights.

The Controversy: Does Islam allow violence against women?

The essential question is whether Islam allows violence against women at all? It is critical to note that most of Islamic jurists have been males. Naturally, they would have been influenced by the culture and values of their time. Unfortunately, due to only few women being involved in the forming of legal opinion there have been very negative consequences for women. In the early Islamic history there were women jurists and legal scholars who produced great legal opinion, one of the most famous being the Honorable Aisha, wife of the Prophet Muhammed. She was one of the most authentic legal jurists during her time, after the death of the Prophet.

One verse of the Qur’an which seems to have been traditionally interpreted less favourably to women and more in favour of men has been the following verse:

Men are the protectors of women, because God has given the one more than the other (strength), and because they spend their property [to maintain them]. So righteous women are the devoutly obedient, guarding in secret that which God has guarded. As for thosefrom whom youfear disloyalty, admonish them and banish them to beds apart, and beat them (lightly, without injury). Then if they obey you, seek not a way against them. For God is High and Sublime.”

This verse is probably amongst one of the most controversially translated one on this topic. The translation of the verse faces controversy in three areas:

1. Whether men are superior to women?

2. What the Arabic word “nushuz” exactly means? (Translated in the above paragraph as “disloyalty”).

3. What the word Arabic “fadribu” means within the context of this verse? (Translated in the above paragraph as “beat them”).

6.1 Are men superior to women?

Amongst Muslims, it is commonly taught that men are a degree above women. A number of jurists have interpreted this to mean that men are more capable because of the customary role exercised by men in society. This gives him a certain degree of experience and foresight therefore he is the natural head of the family.

However manyjurists have explained that this part of the verse is only expressing that men have a greater degree of responsibility to the family in terms of financially maintaining the family. The verse indicates that each gender has their strengths. 43 By Islamic Law, the man has the obligatory duty to financially provide for this wife and family, regardless of how wealthy his wife may be. The woman on the other hand is not obliged to spend any money of her own for family expenses, Whatever she eams is hers to keep. She can spend it as she pleases. Her own needs such as residence, clothing and food are the responsibility of her husband. Islamic Law also obliges the husband to provide his wife with a servant14, though this is hardly practiced among Muslims in Western countries today because it is hardly affordable to an average income earner. Yet, the practice is quite common in some Asian and Middle Eastern countries.

6.2 Meaning of “Nushuz”

“Nushuz” has been generally interpreted to mean disloyalty. The majority of jurists seem to agree that it means disloyalty and unfaithful/flirtatious behaviour which could lead to an unlawful relationship outside of the marriage.”

The interpretation and translation of this word has been a major source of controversy because traditionally this is ground which it is alleged that the husband could hit his wife. Until recently the word ‘fadribu’, as explained in the next section, was not questioned. The emphasis was on this conditional term, ‘nushuz’, which some jurists have unfortunately interpreted vaguely. There are also manyjurists have interpreted the word very restrictively, in favour of women.

There is also a verse which deals with the ‘Nushuz’ of men against their wives in which case the Qur’an once again recommends reconciliation although the women ha’slihe right to divorce, in such circumstances.”

6.3 Meaning of “Fadribu”

It is this word which has become most controversial in the recent times with the changing attitudes of our society. Numerous authors traditionally have interpreted this word to mean ‘beat’ while others, like Ozturk, explain that it means to divorce or separate.” It is explained that the word has ten meanings in Arabic which are used in the Qur’an.” For some reason many male jurists have taken the meaning ‘beat’ rather than any of the other ten meanings. This could have been due to the norms in the societies, where it may have been acceptable to beat a woman to “straighten her up” as a last resort for the sake of saving the family. However, all legal opinion agree that the warning is a step by step procedure, If advising the wife solves the problem there is no need to proceed to the next stage of leaving her alone in bed. It needs to be implemented in stages and not a concurrent procedure where all are ordered at any one time. They are possible actions and not orders.

However, it is much more in line with the rest of the Qur’anic injunctions and the practice of the Prophet, who never laid a hand to on any of his wives, to interpret the verse to mean divorce or separate, as argued by Ozturk. In other words the verse, first encourages resolving the problem in a peaceful manner. If advising and sleeping apart does not succeed in saving the relationship then it allows for a period of separation. And then, if still needed, it allows divorce between the partners. This approach is also logical because the next verse in the Qur’an talks about the divorce procedures that should take place. Arbitration is recommended before finalising any divorce.”

A relatively different and a more acceptable translation of the same verse is:

Men are the protectors and guardians of women because God has made some men above the other. And men spend a lot from their property. So righteous women are respectful; As God protects them, they protect whatever requires privacy. If you fear their (women) unfaithfulness or their disloyalty first give them advice; then leave them alone in bed and finally take them out of the house, or send them elsewhere, or divorce them, However if they are respectful do not seek a way against them. For God is High and Sublime.”

This translation is also in line with verse 128 of the same chapter, which talks about the husbands ‘nushuz’ towards his wife. His ‘nushuz’ is often translated to mean ill‑treatment of her or an action of disloyalty. Here the recommendation to the woman is to come to a peaceful resolution with her husband. If she wishes, she is allowed to ask for a divorce on the basis of his nushuz towards her. Hence, interpreting the word “fadribu” in verse 34 to mean divorce or separate is also in line with verse 128 and the many Qur’anic verses which declare equality amongst men and women and also the code of conduct prescribed for men.

However, even if we were to assume the worst case scenario, that the word does mean beat in the context, though very doubtful, one must note that even the harshest of interpretations have placed the following restrictions on the so called beating:

It should be observed that this sanction in the case of marriage is a last resort. The Blessed Prophet never hit any of his wives at all. In fact, he warned the Muslim community that it is a donkey who beats his wife. If a man has to administer physical correction to his wife, his strokes should be symbolic, as they must leave no bruises or other marks. A wife with a complaint against her husband’s treatment may apply to a court to deal with the problem.”

The aim is not to hurt her but rather to warn her that the problem is quite serious. All authors who have interpreted the verse to mean ‘beat’ have described the so called beating instrument to be no more than something like a pen and have pointed out that he cannot hit her in areas likely to cause pain. This is aimed as a restriction on the practice.

Even taking the harshest of Islamic interpretations, men do not have the right to beat their wives. In cases where the woman is unfaithful to her husband, the worst case scenario is that he may warn her in at least three stages.

1. First he must talk to her in a polite manner and advise her; and only if that does not work

2. He may sleep in a separate bed to her (but not with another woman). This must be done in a manner so the rest of the household does not become aware that he has abandoned his marital bed, so as not to embarrass her; and only if this step does not work, only then

3. He (not must) warn her physically with something like a pen. He cannot hurt her or bruise her. It is meant to be a symbolic gesture to show the seriousness of the problem.

Of course, then there are the next two steps which are discussed in the next verse of the chapter:

4. Arbitration/Mediation with representatives of the wife and the husband.

5. Divorce

All scholars agree that the Qur’an certainly does not allow the third step to be administered in a continuous manner. Hence, there is no room left for any violence to happen or to go on for any period of time. If nushuz continues, then fourth and fifth options are open to the couple.

Although, there is a difference, there is also a remarkable similarity between this restriction and the historic power granted by the common law to a man to beat his wife, so long as he did it with a stick no thicker than his thumb. This power is considered to be the origin of the phrase ,rule of the thumb’ .5′ This permission is also cited in the case of Re Cochrane:”

The husband hath by law power and dominion over his wife and may keep her force within the bounds of duty, and may beat her but not in a violent or cruel manner.