There I was, with my first Muslim client, confronting a predicament where the American legal tools at my disposal did not promise the best result for my client. Pouring over Zainab’s case in those first few days, I felt dejected. In recent decades, most states have passed legislation that makes divorce a “no fault” issue. This means simply that if either a husband or wife asks a court for a divorce, it is automatically granted without anyone having to prove conditions such as adultery or abandonment, as was the case in decades past.
Divorce in America is no longer punitive and courts want to stay away from deciding whether the husband or the wife is responsible for the breakdown of the marriage, an issue considered legally irrelevant to their future lives. All of this makes sense in a post-feminist society where women can marry and divorce at will and are unlikely to be stigmatized by the breakdown of a marriage. In a world of blended families and frequent divorces, few judges imagine a marriage as short as a year to have significantly impeded the life of either the husband or the wife. Spousal support, or the idea that the husband should have to pay his wife till she gets back on her feet, is largely unimaginable. While I could get her case re-opened by demonstrating the fraudulent circumstances behind the divorce decree, there were few options to get her much-needed monetary support beyond the basics of survival that were available at the shelter.
And so I faced the task of explaining an American legal reality of freedom and consent to a woman who had been married under circumstances that could not have been more different. Zainab expected spousal support and her argument for it was simple: she had given up everything to be married and feared the pain of an ineradicable stigma if sent back to Jordan. Again and again, she would ask me about her rights under the Islamic marriage contract, and repeatedly I would tell her that an Indiana court would not enforce a marriage contract based on Sharia law. Then she would exclaim, aghast, that if she could not get any rights or restitution under Islamic law, what indeed were her options under American law? My response, that all she would receive from an American court was a legally recognized divorce, no property, no spousal support, and no amount awarded for repudiating the marriage contract, was impossible for Zainab to digest. “How can this be?” she would ask. “This is America. Women are supposed to have rights here. How can a judge tell me that I deserve nothing after having been abused and abandoned?”
And so there I was, with my first Muslim client, confronting a predicament where the American legal tools at my disposal did not promise the best result for my client, a Jordanian Muslim woman. In my legal training, as well as my academic work, my focus had been almost entirely on the task of introducing women just like Zainab to the idea that the American legal system allowed them a level of equality and self-realization that was not yet available in Muslim countries. What indeed was fair in this case? The acknowledgement that Zainab had been wronged and deserved restitution, or treating her like any other American woman seeking a divorce? Should Said be treated like any other American husband whose marriage hadn’t worked and who wanted to be with another woman? Should Zainab’s unique situation as a Muslim woman whose chances of remarriage were severely affected by her divorce be considered in the case or ignored? More importantly, should Said have to pay to support a woman he had only been married to for a little over a year?
As a lawyer, I had been trained to find the fair and just result for my client, one that would make her whole and give her the best chance at rebuilding her life. And ironically, it was Zainab’s Islamic marriage contract that provided the best hope in this regard. Unlike the perfunctory and poorly drafted marriage contracts often used in my native Pakistan, Zainab’s contract had been drafted by an attorney, duly signed and witnessed, and had certified translations in English. Its clear stipulations mandated not only that Said did not have the right to contract any polygamous marriages, but that Zainab had the right to divorce him, something otherwise difficult for many Muslim women to do. The contract also imposed additional duties in the event of divorce upon Said. Not only did he have to provide spousal support for two years, but pay a pre-fixed amount, ten thousand dollars in this case, to Zainab if he chose to divorce her. The terms of the contract were indeed hopeful if they could be enforced. But in a climate where just the term Sharia evoked images of the Taliban and of amputations, I struggled to find a way to introduce the contract without allowing for a flood of negativity about Islam and Sharia that might destroy Zainab’s chances of success.
Further research provided more hope than I had expected. After a discussion with some colleagues, I found that the contract, because it had been so carefully worded, fulfilled all the requirements of an enforceable contract under U.S. law. There was no reason that I could not ask for it to be honored as a pre-nuptial agreement. It was this argument, then, that I ended up presenting in Zainab’s case. A few days after we had submitted to the court, we got word that the judge had signed the order and approved the proposed settlement, never questioning the premises of the agreement. The final order of the court asked for support to be paid for two years and the ten-thousand-dollar amount to be paid in installments to Zainab during the same time. Clutching the court’s order that summer afternoon, Zainab was happier than I had ever seen her. Her Muslim faith and American future, it seemed, had come together. Within a month, Zainab had moved out of the shelter and into an apartment and was beginning to take the first tentative steps toward a new life in the United States.
Zainab and Aunt Amina’s stories are separated by culture, time, and the vastly different worlds in which their choices and futures were determined. Together they illustrate the complexity of Muslim women’s interactions with Islamic law. In the patriarchal culture of Pakistan, Aunt Amina remaining a rejected wife was better than being a discarded one. Zainab struggled with the same issues decades later, and yet it was not Western culture or conventions that came to her rescue but the very marital contract that had been so unable to save Aunt Amina. Her story exposed to me the superficiality of the logic that, in America and under American law, justice is a guarantee for women, and that under Islamic law women would perennially be oppressed.
Zainab’s case does not and cannot change the fact that in the vast majority of Muslim countries, Islamic law, interpreted for centuries by men, is being used as a tool to enslave women and enable the sort of tragedies that defined Aunt Amina’s life. But it does present the argument that if things are to change, the recipe lies not in eliminating faith from the legal sphere but rather redefining it in a way that empowers women using the very tools that were used to enslave them.
Cases like Zainab’s, even when they occur in faraway America, represent for Muslim women strategic ways to take back the instruments of law that have been appropriated by male jurists and interpreters for centuries. Arguably, it is in places like Canada and the United States, which believe reform can only go in the direction of providing more rights to women, that this act of crucial taking back is possible. This, then, is the project of Islamic feminism, one defined in small, piecemeal victories that represent a taking back of a realm instead of surrendering it. Zainab was empowered by the outcome of the case not merely because she had received a monetary settlement crucial to her survival, but also because she had, in an elemental way, been able to use her faith to define her empowerment, a prospect denied to too many Muslim women, for too long.
Rafia Zakaria is the first Muslm woman to serve as a Director for Amnesty International USA. She is a lawyer and Ph.D. candidate in Political Science at Indiana University. This article was previously published at Guernica Magazine.