Law and religion clash in France

[Published in International Herald Tribune, June 2, 2008]

PARIS: Forty years after the sexual revolution in France, the country is confronted with a question it thought it would never have to ask again: Can a husband annul a marriage because his new wife is not a virgin?

The discovery last week that a court in the northern city of Lille had annulled the union of two Muslims because the husband said his wife was not the virgin she had claimed to be has set off a highly charged and highly politicized debate in a country where religion is not supposed to interfere with public life.

It has also sharpened the focus on much broader questions that all of Europe is grappling with: How much should European countries adapt their moral and legal codes to their growing Muslim communities, and how much should those communities be expected to conform to Western norms?

Fadela Amara, the minister in charge of France’s suburbs and herself of Muslim origin, called the ruling “a fatwa against the emancipation of women”; Valérie Létard, the women’s minister, said the decision represented a “regression of the status of women”; and scores of feminists and lawyers warned that it could create a precedent increasing the pressure on young Muslim women in Europe to be chaste or to undergo an increasingly popular surgery to reconstitute their hymens before getting married.

“It’s a victory for fundamentalists and a victory for those who look at Islam as an archaic religion that treats women badly,” said Dounia Bouzar, an anthropologist and the author of several books on Muslims in Europe. “I’m sure the judge wanted to be respectful to Islam. Instead, the decision was respectful to fundamentalists.”

On Monday, the office of Justice Minister Rachida Dati, who had initially defended the ruling, announced that it would be appealed. Dati, a daughter of North African immigrants, herself had a marriage annulled that had been arranged by her family.

The latest controversy started with the marriage of a French engineer and fresh convert to Islam to a French university student of North African origin on July 8, 2006. When the husband discovered during their wedding night that his bride was not a virgin, he abruptly canceled the festivities. The next day, he asked a lawyer to annul the marriage. The bride, who admitted that she had lied about her virginity but was initially opposed to the separation, eventually consented to his demand.

In its ruling, which was made on April 1 but only revealed in the French press Thursday, the court in Lille did not cite the religion of the couple. Instead, it based its verdict on the idea of a breach of the marital contract, concluding that the husband had married his wife after “she was presented to him as single and chaste.” The fact that the wife eventually agreed to the annulment showed that she herself considered her virginity “as an essential quality decisive for the consent of her husband,” the ruling said.

“Married life began with a lie, which is contrary to the reciprocal confidence between the married parties,” it said.

According to Article 180 of the French Civil Code, a marriage can be declared void on the basis of “an error about the person or the essential qualities of the person.” The law provides no clear definition of what constitutes an “essential quality.” Several precedents have made it into jurisprudence over the past two centuries - among them impotence, hiding a previous marriage or past prostitution - but it is the first time that a woman’s virginity is cited.

The husband’s lawyer, Xavier Labbée, said by telephone Monday that the annulment had “nothing to do with religion,” describing the ruling as technical.

But in France, which is strictly secular and where all religious garb is banned from public schools, the case has raised fears that religious considerations are indirectly creeping into the legal system. France is home to the largest Muslim community in Western Europe, with an estimated five million inhabitants of mainly North African origin.

Observers like Bouzar question whether a judge would have ruled the same way if the couple had been Roman Catholic or Jewish, even though, as she pointed out, “all three monotheist religions traditionally demand that both the bride and the groom are virgins before marriage.”

She also doubted that a Muslim woman could have obtained such a ruling because a man’s virginity is “impossible to prove.”

Indirectly, religious considerations have played a role in the past, said Caroline Fourest, a journalist and lecturer at the Institut d’Études Politiques in Paris who has written extensively on the issue. There have been cases of Catholic marriages annulled because one party found out after the wedding that the other was divorced and felt that this was incompatible with their beliefs.

Still, Fourest said, the latest ruling “sends a very, very bad signal to young Muslim girls who grew up in France and have the same sexual lives as other young French women but are trapped by their parents’ mentalities at the moment of their marriage.”

Fourest said the French civil code should be changed to better reflect modern-day reality. Today, she argues, divorce is no longer stigmatized and the disenchanted husband in the latest case should have sought a divorce instead.

Annulment should be reserved for very rare and specific cases, like forced marriages, she said. According to the latest statistics available, 745 marriages were annulled in 2004 in France.

“The law has not evolved as quickly as society,” she said. “We have to rethink the law.”

A growing number of young women in France, she said, are now seeking help from plastic surgeons for hymenoplasties, where the hymen is re-created from the already-torn tissue. There are no reliable statistics, but Fourest, who researched the subject for a television documentary, said the number of women undergoing the operation had risen to about 100 a year. The procedure is not covered by the tax-financed health system, and each operation can cost up to €2,700, or about $4,200, in Paris, Fourest said.

The pressures are not unique to France. In Germany, with a significant Turkish population, there are no statistics, but experts say hymenoplasties have become more popular. In Britain, where most Muslims are of Pakistani or Bangladeshi origin, only about a dozen women a year have the operation paid for by the National Health Service, but observers believe hundreds more pay for private surgery.

The French ruling is only the latest in a string of controversies about how Europe is handling the integration of its Muslim citizens.

It came two months after the archbishop of Canterbury, Rowan Williams, caused a stir in Britain when he suggested that the adoption of elements of Islamic Shariah law in Britain was “unavoidable” if social cohesion was to be fostered. Muslims, the archbishop said, should be able to choose to have marital disputes or financial matters dealt with in Shariah tribunals, which handle matters of Islamic law.

Observers like Bouzar strongly disagree.

“Let’s leave religion out of the courts altogether,” she said. “Muslims are either demonized or given too much room to be different. They should be treated like any other citizen.”