Tax, don't ban: a comparative look at harmful but legitimate Islamic family practices actionable under tort law.

• Author: Shmueli, Benjamin
• Position: Continuation of IV. Tort Law as a Desirable and Complementary but Independent Soft Solution A. The Situation through VI. Conclusion, with footnotes, p. 1014-1039

1. The Situation

   Extending the example above, although talaq is a legitimate practice under religious family law, it seriously harms Fatma's rights and breaches her autonomy. Fatma cannot return to her married life. She decides to resort to tort law to change the oppressive result of religious family law. She brings a civil action for a practice that is legitimate under religious family laws, arguing that the practice harms her, as the vulnerable spouse. She asks the court to award her damages for the emotional non-monetary and economic monetary harm caused by being unilaterally repudiated, including shame and the loss of chances to remarry in the highly conservative society where she lives. (105)

   Fatma knows that even if she obtains a large financial compensation, this does not change her status and she will not revert to being married. But the compensation can help her get on her feet. From her point of view, this is a separate process from any possible action in family law, where she will receive a mahr in the sum of $5,000, or succeed in forcing a division of property according to Western family law. The tort action provides compensation for the severe harm she suffered as a result of the unilateral divorce per se; family law does not provide such compensation.

   In filing the claim Fatma also knows that a civil judgment for ordering damages of this type may deter other husbands from taking such action. She is thinking mainly of Salma, her friend, who is in a similar situation, because her husband, Mustafa, is threatening to divorce her unilaterally and marry a younger woman. Can a tort action of this sort be filed in every country? And what is the relation between the tort action and mahr on one hand, and the tort action and the division of property according to secular family law on the other? These questions are answered below.

2. The Possible Use of Tort Law

   1. Countries governed by Sharia alone

      In countries that are governed strictly by Sharia, and where talaq is permitted, talaq is unlikely to be considered a tort. Tort action for talaq would therefore be impossible in these countries.

   2. Countries governed by Sharia in personal status only

      A tort action for talaq is relevant in Israel because of the special situation in this country where only marriage and divorce are adjudicated according to the religious family law. (106) Theoretically, the same is true with regard to India and Lebanon. Talaq is permitted according to Israeli family law, but it is nevertheless considered a tort and an offense. Although there is no corresponding tort of talaq, the action is possible by means of general torts.

      There are two ways of bringing a tort action for damages from talaq in Israel. Indeed, the recognized tort actions are based on a mix of tort and criminal laws. Article 181 of the Penalty Law of 1977 (107) holds that a husband who repudiates his wife without her consent and without the intervention of an authorized court is subject to five years of imprisonment. (108) Israeli tort legislation acknowledges a tort of breach of statutory duty, which is a legislated obligation, in a way that resembles the American tort of negligence per se. (109) In certain cases, Israeli law allows damaged parties to bring a tort action based on infringement of criminal sections using the general tort of breach of statutory duty, described in section 63 of the Tort Ordinance. (110) Civil actions for talaq based on these grounds have been acknowledged by the Israeli Supreme Court. (111) The other alternative is to use the tort of negligence. (112) Note that in Israel there is no clear distinction between intentional and unintentional torts, and therefore the tort of negligence is also relevant in intentional acts. (113)

      The harms may be both monetary and non-monetary (nonpecuniary). The divorced woman often finds herself with no source of sustenance, because in some countries alimony is not granted after divorce (this is the situation in the case of classic Muslim law (114)), only child support. (115) In conservative societies it may also be difficult for her to remarry. (116) Therefore, she can apply for mostly non-monetary damages such as shame and suffering and emotional distress for being divorced against her will. (117)

      Tort law provides the harmed woman with a secondary remedy of damages, (118) but cannot grant the primary remedy of status: damages cannot make her married again. Even if her husband wishes to remarry her, perhaps in exchange for renouncing the claim and cancelling the damages, this is not practical because Sharia requires that she first marry another man and that he then divorce her before she can remarry her first husband. (119)

      However, in filing a tort claim the woman has the burden of proving the husband's fault (in this case, breach of statutory obligation or violation of the duty of care in the case of the tort of negligence). By contrast, in the case of compensation based on an agreement such as mahr, there is no need to prove fault. (Note that Western family law also seeks to avoid the question of fault-based liability and prefers to grant a no-fault divorce.) Thus, the burden in a tort action is greater than in an action based on family law, at least as far as having to prove fault is concerned. This means that if the mahr is sufficiently large, or if it is not recognized and the property is divided according to Western family law to the satisfaction of the woman, it may not be worthwhile for her to take tort action against her husband and have to prove the harm caused by talaq, especially if the tort compensation is not expected to be high. The choice, however, must be the woman's, and the tort mechanism should be available to her.

      It appears that a tort action would also be relevant in India, even though a solution seems to exist there in compensation based on criminal law. Section 125 of the Indian Uniform Criminal Procedure Code forbids a man "of adequate means" to permit various close relatives, including an ex-wife, to remain in a state of "destitution and vagrancy." (120) Martha Nussbaum explains that many women divorced under Muslim law in India have been able to win grants of maintenance under this Criminal Code Section, and that recognition of ex-wives as relations under this section was introduced explicitly for the purpose of compensating repudiated women. (121) But this section seems unable to solve all the cases of compensation needed for repudiated women, and there is a need for a tort action, such as the one acknowledged in principle in Israeli law.

      Regarding tort actions for talaq in Israel, Abou Ramadan criticizes the "integration between the criminal order and the interpretations of the High Court of Justice regarding the tortious aspects of divorce [in that they] have emptied the institution of divorce of its content." (122) One can assume that Abou Ramadan would criticize the Indian law as well, on the same grounds; however, the issue should be considered differently. Implementing the tort solution may separate the right to divorce into the two dimensions: status in religious family law and damages in torts (in the Israeli case) or under criminal law (in the Indian case). In this way, the laws do not collide, and the tort mechanism provides a solution that, although not optimal from the point of view of human rights, offers the best option available. This solution does not abolish the institution of talaq, which remains a valid practice according to the law of these countries, but it carries a price tag.

   3. Countries governed by secular law and not Sharia: A case of legal pluralism

      Tort action for talaq is probably impossible in Muslim countries that are not governed by Shari'a and would be dismissed because talaq was carried out in court. There should be room for a complementary tort action, however, at least when the damages paid from the mahr do not cover the actual harm. A defense may be raised against such action, based on the fact that the court approved the procedure and it is therefore final and cannot be considered a tort.

      It is reasonable to assume that, in Western countries that recognize talaq and mahr, the situation will be similar. As we have seen, in many American civil courts, compensation is not available following talaq if the mahr contains no compensation for the repudiated woman; at most, compensation is limited to the sum of the mahr. Not acknowledging a tort action for damages due to the harm resulting from talaq confronts individualism and contradicts the rights of the repudiated woman. (123) As noted, given the differences between mahr and the Western prenuptial agreement, it is difficult to argue that the woman in practice agreed, in the regular consensual sense, to be left without adequate compensation in the case of talaq, especially if she has lived long enough in a country espousing Western values.

      Because it is not always possible to achieve adequate (rather than symbolic) compensation in cases of talaq in American civil courts (owing to the collision of religious and secular laws and constitutional problems), (124) the need to provide a different mechanism, namely a civil-tort action, is becoming an urgent one. In the current situation, many repudiated women cannot be awarded damages, although the repudiation caused them enormous emotional distress and they are incapable of achieving any economic security.

      Why are women outside of Israel not using the mechanism of civil tort claim? Is it conservatism and a fear of approaching the court because of pressure within the community? Such pressure is liable to cause women to abstain even from demanding the mahr. (125) At the same time, many women do not hesitate to turn to the court to demand the division of property according to liberal family law. It is possible, therefore, that there is not sufficient awareness of the tort option, and that the background of the women's attorneys, in family...