June 5, 2008
There’s a story which seems to have hopped over from the French blogosphere now making the rounds. In the AP’s words:
The bride said she was a virgin. When her new husband discovered that was a lie, he went to court to annul the marriage — and a French judge agreed.
The ruling ending the Muslim couple’s union has stunned France and raised concerns the country’s much-cherished secular values are losing ground to religious traditions from its fast-growing immigrant communities.
The annulment was offered on the grounds that one of the parties (the woman) had lied about their essential qualities before entering the union. The French – or some segment of them – are in their usual uproar over the North African assault on the French way of life. The conservative American blogosphere is torn – as often – over whether this is caving in to sharia or sensible application of the law as it is. See: Sullivan summarily, Volokh verbosely, Instapundit, the French Politics blog, and – tangential but interesting – a discussion of Jewish law, the marrying of virgins, and the role of the judge.
The unasked question though – and maybe someone who reads French can explain it to me. – is why was the man after an annulment rather than a divorce? There is a feature analogous to annulment in Islamic law – i.e. the marriage is declared invalid – but it is not used quite in the way annulment is by modern Catholics.
More specifically, the fiqh books – and I’m only speaking from the Hanafi point of view here, so maybe someone could correct me if it’s different for the Malikis – actually discuss* this issue, and the conclusion is that in the case of a condition such as “she must be a virgin,” which turns out after the marriage to have not been met, the marriage is valid, and the condition is void. Thus, the couple would be required to divorce. There is a difference in the handling of the dower for a marriage ended before consummation, but it is still a divorce.**
In Islam, marriage and divorce are effected by the statements of the participants, certified by witnesses, and cleared of ambiguity by judges. Modern scholars see the process of obtaining a divorce in a non-Muslim country’s courts as fulfilling the religious requirement. By specifically seeking an annulment, though, it would seem that the husband is avoiding actually divorcing her. Thus, in the sight of God, they would still be married. (In the same way as the Catholic church views couples who divorce without annulment, if I understand correctly.) A religious divorce could then be effected by his giving a verbal or written one, which it is possible he did at some point.***
So my question is: what is it about the French legal environment which made annulment desirable to this man? And how can anyone justifiably call this a case of sharia-appeasement if there is no shar`i case for annulment?
*eg. Bahar-e Shari`at, 2:632, citing `Alamgiri
** It is very possible that this was found out before consummation. Commentators on all of the above posts seem to think it must have been lack of blood or something which tipped the husband off, but it’s entirely possible that the bride broke the news herself on the wedding night.
*** It is also very possible that these are secular Muslims who care nothing about the opinions of Islamic law. If you think that such people wouldn’t care about virginity and the like, I have a long reading list for you. In most of the Muslim world it is the religious sections of society – and a few leftists – campaigning against honor killings, what with murder being a worse sin than premarital sex and all.