A woman's place: a confrontation with Bedouin custom in the sharia court.

• Author: Shaham, Ron

The potential for conflict between Bedouin custom and Islamic law (shari a) is illuminated by the study of a decision of the shari a court in al- Arish. A Bedouin woman from the al-Rumaylat tribe prosecuted her husband in 1906 and demanded the annulment of their marriage on the grounds that her brother had given her in marriage when she was already an adult without her approval, as required by the shari a.(1) The main interest in this document lies in the fact that a Bedouin woman, who according to custom lacks legal standing, presented her case in court by herself, i.e., without being represented by an agnatic relative. Moreover, her claim represents a complaint against the supremacy of customary law and the agnatic guardian's authority, both of which still prevail in Bedouin society.

Orthodox Islam has been only superficially adopted by the nomadic Bedouin. Their process of Islamization is an ongoing process, and customary law, as embodied in the tribal arbitrator (hakam), is still binding for them. The sedentarization process of the Bedouins has brought them closer to normative Islam. This religious change is intensified by the Bedouins' proximity to urban centers where religious, economic and administrative functions are carried out. The development of state institutions and the spread of education and modern means of communication have also contributed to strengthening the Bedouins' relation to Islamic institutions and to the ulama, experts in interpretation of the shari a. But above all what brings the Bedouin closer to normative Islam are the exigencies of a modern state, especially licensing, in which the shari a courts are involved. Moreover, the authority of the shari i judge (qadi) derives from statutory legislation and state sanction, both denied to arbitrators. Thus, whenever they cannot realize certain civil and matrimonial rights through the arbitration system, the Bedouins have had to apply to the shari a courts, which have authority to enforce their judgments.(2)

The shari a court in al- Arish was probably founded in 1898 in the framework of the reorganization of the Egyptian administration under British influence. The parties to this lawsuit were Bedouins from the al-Rumaylat tribe who wandered between al- Arish and Rafah. Shuqayr noted that the Bedouins of Sinai recognized Islam as their religion but most of them did not know either the pillars of Islam or the patterns of prayer. He encountered only a few who actually prayed regularly. These were Bedouins who had contact with the town, but even they were not strict about prayer times. The only Islamic signs recognizable in the Bedouins were the celebration of the sacrificial festival (id aladha), the use of the prophet's name in oaths, and the blessing of the prophet in prayers. As a rule, the Bedouins were illiterate, and it was rare to find any Bedouin wandering in the al- Arish area who had studied in the school located there.(3) The proximity of the al-Rumaylat to an urban administrative, economic and religious center may partially explain their recourse to that court.

A verbatim translation of the first part of the document is as follows:

In the public session held in the shari a court of al- Arish on Wednesday, 6th of Ramadan 1324 [H.], corresponding to 24th of October 1906, 11 a.m., presided over by Ahmad Muhammad Darwish, the qadi of the court, and in the presence of Abd al-Majid Wahbi, the head court clerk (katib awwal), acting as the registrar. of the session, the following judgment was given in suit no. 60, registered in the suit registration book of 1906, which is presented by Aziza bint Hassan b. Fadl against Atiyya Salami, the farmer ibn Salami ibn Abd Allah, both from Arab al-Rumaylat and residing in Rafah, in the outskirts of al- Arish, concerning her claim to annul the marriage (faskh al-nikah) between her and him because of the irregularity of the contract [the marriage contract] (li-fasad al-aqd).(4)

PROTOCOL OF THE S131T (WAQAI AL-DAWA)

And after the shar i identification (ta rif . . . alma rifa al-shar iyya)(5) of the parties this present plaintiff put in a shar i valid claim against this present defendant, in which she demanded a decision be handed down in her favor against him for the dissolution [of the marriage] (tafriq)(6) between her and him, and that he would absolutely not oppose her and would not be her husband, since her marriage to him had been [concluded] without asking her permission and she was at the time of the marriage an adult (baligha) [and] sane (aqila).(7) The defendant answered that he had married her according to the practice of Allah and the practice of his messenger (sunnat Allah wa-sunnat rasulihi), and that the one who had given her in marriage to him [was] her brother Sulayman, for a bride price (mahr) about which he agreed with him, at the rate of ten Bantu,(8) which he paid him in the session of the [marriage] contract's conclusion (fi majlis al- aqd), and that the form (sigha) of the contract which was concluded was that her brother had put his hand in his (wada a yadahu fi yadihi) and said: "Have you accepted (qabilta) 'Aziza [?]." And he [the defendant bridegroom] said to him: "I have accepted her." And her brother said: "Have you accepted her according to the practice of Allah and the practice of his messenger [?]." And Atiyya the husband said to him: "I have accepted her." And her brother handed him a piece of camel's hair (qit at wabar) and told him: "Take, this is her qasala," and [the bridegroom] took it from him and accepted it. And [the defendant continued replying that] this form [the contract's form] is the customary practice of the Bedouins (al- urban) and that her brother consulted her before concluding the contract and she was satisfied with it and with the bride price; nevertheless she did not authorize (wakalat) anyone to conclude the contract.(9) [The defendant went on replying] that he had consummated the marriage (dakhala biha) in his tent and had had shar i valid privacy with her (ikhtala biha khalwa sahiha shar iyya),(10) [and that] afterwards she fled from his home while...