Edward Garnier

Conservative Party | Harborough

Mrs Masuma Jariwalla

Westminster Hall Adjournment Debate 11-11.30am

10 June 2009

First, may I thank the Speaker for granting me this 30 minute debate in Westminster Hall to discuss the case of my constituent, Mrs. Masuma Jariwalla.

Mrs Jariwalla first came to see me at my advice surgery in May 2003. She is a Shia Muslim who was born and married into the strict Dawoodi Bohra sect. She divorced her husband under English civil law in 1995. They have two sons who are now both over 18.

My constituent told me that her ex-husband will not, as a strict religious Shia, accept that divorce as binding on him and will only consider that himself divorced if he divorces her under Shia law. She has a new partner, a Sunni Muslim, but he can neither marry her nor his parents accept her into the family unless her ex-husband releases her by accepting the English civil divorce or divorces her under Shia law. It seemed to me then, and nothing has been achieved to change my mind since 2003, that I could not help her so long as her ex-husband refuses a Shia divorce and she, as a religious woman, wishes to remain bound by Shia laws which she clearly respects, or unless the Government changes the law.

Following our first meeting I corresponded with a number of ministers on her behalf to see if the Government would be able to help, perhaps by amending the Matrimonial Causes Act 1973 either directly, or indirectly by amending the Divorce (Religious Marriages) Act 2002, or by passing some new legislation to deal with this impasse. I appreciate that any Government and Parliament, whilst sensitive even to a small number of difficult cases, have to be careful to consider the wider implications of any statutory changes to the religious customs and laws of a religion, of any denomination, with which it has no proper business to interfere.

In June 2003 Lord Filkin, the Parliamentary Under Secretary at the Department for Constitutional Affairs, replied to a letter I had written in May to the Rt Hon Lady for Doncaster Central (Rosie Winterton), then the junior minister at the Lord Chancellor’s Department. Lord Filkin accepted that my constituent was locked into a state of affairs similar to some Jewish "chained" wives who are prevented from remarrying because of their husband’s refusal to grant a religious divorce or "get". If the husband does not apply to the Beth Din for a get and deliver it to his wife, she cannot remarry under Jewish law. The Divorce (Religious Marriages) Act which came into force in 2003 provided some assistance in that it enabled the English divorce court to require the dissolution of the religious marriage before granting a civil divorce. What this means is that a husband who refuses to deliver a get to his wife will not be able to obtain a civil divorce and lawfully remarry until he does. That provision is fine so far as it goes but it does not assist my constituent.

Mrs Jariwalla’s plight may be numerically unusual but then I do not believe that the size of the Orthodox religious Jewish population is very large and the number of divorces in that community must, for a host of religious and social reasons internal to that community, be correspondingly small as well. But the problem was sufficient to cause the Government to recognise that some measure of reform was required to allow for social harmony and compliance with our obligations under the Human Rights Act 1998 and the European Convention on Human Rights.

Lord Filkin accepted that my constituent and other Muslim women faced a similar problem to that faced by the Jewish women, whose rights and interests were enhanced by the 2002 Act, because their husbands refused to grant them the talaq. Mrs Jariwalla, as a British citizen, was and remains divorced under the law of England but trapped by Sharia law in a marriage to which she has no real or emotional attachment.

Of course there are any number of differences between Islam and Judaism but I suggest that as the Muslim population of the United Kingdom grows year by year, and as a greater proportion of that population are and will be British- as opposed to foreign-born, and as the cultural, religious and geographical links that bound first, and even second generation Muslim families are attenuated by the exposure of the younger, indigenous generations to the social mores and cultural systems prevalent in the majority population of British citizens, the tensions between English civil and Muslim religious law will increase and need to be alleviated. Of course there will always be, as there are within the Christian faith, groups and individuals for whom the religious teachings and tenets of their own faith take precedence over secular civil law, no matter how problematic that can sometimes be. But there will be a cohort of Muslim women brought up within one world from which they do not want entirely to be separated who, in order to live happy and fulfilling lives in modern Britain, need to be able to exist in harmony within both a religious and a secular context.

Since 2003, as well as contacting the two ministers to whom I have already referred, I have also contacted Lady Ashton of Upholland, the Rt Hon Lady for Camberwell and Peckham (Harriett Harman) as Ministers within the DCA, who, like Lord Filkin, said they could do nothing unless it became clear that there was consensus within the Muslim community and that the reason why Muslims could not be included within the 2002 Act was that their communities were not able to offer efficient remedies to deal with the problem and, anyway, women like my constituent could always approach the Sharia Council to ask for the marriage to be dissolved. Furthermore the Government had received no representations from the Muslim community as they had from the Jewish community.

As the minister will know, and I am grateful for his/her attendance today, the two great sects in Islam are the Sunni and the Shia Muslims with Sunnis predominating by some measure. The Muslim Council of Great Britain is the umbrella body covering the many Muslim councils and sub-councils to be found in this country. These councils can resolve marriage disputes such as my constituent’s by issuing a fatwa but, as I understand the matter, Dawoodi Bohra wives, like the pre-2002 Act Jewish wives can never remarry unless their husbands consent to a religious divorce. In the autumn of 2008 I wrote to the Janaab Amilsaheb of the Anjuman-e-Saifee in Leicester and to Dr Idris Zainuddin in Northolt, the relevant Dawoodi Bohra religious leaders, to ask them to intercede in this case. Apart from a polite holding reply from Leicester promising a considered response from Northolt, and despite reminders, I have heard no more from either of them.

I wrote to the Rt Hon Member for Camberwell once again in January this year in her capacity as Minister for Woman and Equality and in February the Hon Lady for Lewisham East (Bridget Prentice) replied from the MoJ. She told me nothing new. With Mrs Jariwalla’s consent I now bring this matter to the House in the hope that any publicity generated by this debate will act as a spur to action both within the Muslim community and the Government.

It is far too late for the 2002 Act to include my constituent’s case since she long ago was granted a decree absolute under English law. There is nothing to be gained in preventing her ex-husband from getting a civil divorce to stop him lawfully remarrying because he already has a divorce and can, if he chooses, remarry.

Where one party has the power to grant or withhold a religious divorce, this power can be abused and used as a bargaining tool to pressure the other party to agree to less favourable terms for residence and contact with children, and for financial provision. That is not now relevant in this 14 year old case but surely neither the Government nor Parliament can countenance a continuing conflict between her ex-husband’s refusal to grant a religious divorce and Mrs Jariwalla’s rights to family life under Article 8 of the ECHR, her rights to freedom of conscience and religion under Article 9, her right to marry under Article 12, her right to equality between spouses under Article 4 of the 7th Protocol to the Convention, her right not to suffer discrimination in the exercise of her Convention rights under Article 14 of the Convention, and her right to an effective remedy to protect her rights under Article 13. There are similar provisions to be found in the UN Universal Declaration of Human Rights which the United Kingdom voted for as long ago as 1948, and in other more recent treaties to which we are a party. Of course we respect the separation between religion and politics which rightly inhibits governments from interfering in the practice of religion unless the behaviour of one or more parties is in breach of the local civil or criminal law.

But that is what we have here: the current power held over this woman by her ex-husband is an abuse of her rights as a citizen under the law and the Government has a duty to put it right. They can no longer wait for consensus within the Muslim community or for them to approach the Government. As a matter of public policy, of fairness, of humanity and of justice, I urge the Government to apply such pressure and influence as they can to impress upon the Dawoodi Bohra authorities the need to allow Mrs Jariwalla, talaq or no talaq, to be freed from this long dead marriage.