Women in Islamic Law: Difference between revisions

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Women are legally disadvantaged by Islamic law in several in several domains of life. Particularly, women are disadvantaged in matters of sexual, domestic, legal, financial, sartorial, and physical autonomy. According to Islamic legal theory, while not all of Islamic law necessarily has a perceptibly rational basis, legal restrictions on women may be due to their supposed intellectual deficiency, which was pronounced by Muhammad according to Sahih Bukhari.

Genital mutilation

In some Islamic countries women face the certainty of female circumcision, otherwise known as Female Genital Mutilation (FGM). Somali women's rights activist and ex-Muslim Ayaan Hirsi Ali notes that in her own homeland virtually every girl has her clitoris excised, sometimes when as young as five years old, and that the practice is always justified in the name of Islam.

Uncircumcised girls are told they will become prostitutes but that circumcised girls will be pure and will retain their honor and dignity. Ayaan Hirsi Ali describes her own genital mutilation in her book Infidel:

Among Muslims FGM is prevalent mainly in Egypt, Sudan, and Somalia, and in other African countries. Muslims who practice it invest genital mutilation with religious significance. One Islamic legal manual states that circumcision is required "for both men and women."

Reliance of the Traveler

This manual of Islamic law prescribes female circumcision, but with an interesting twist. In English versions, the law forbids removal of the female clitoris, while in the original Arabic no such restriction exists.

English translation:

Original Arabic:

To Sheikh Muhammad Sayyed Tantawi, the Grand Imam of Cairo's al-Azhar, the oldest and most prestigious university in the lands of Islam, female circumcision is "a laudable practice that does honor to women." Tantawi is no fringe figure: he is, in the words of a BBC report, "the highest spiritual authority for nearly a billion Sunni Muslims."

In endorsing female circumcision he uses this considerable spiritual authority to perpetuate a practice that gives women lifelong pain and blocks their access to sexual fulfillment. But perhaps in the eyes of Sheikh Tantawi the pain is worth the result: most authorities agree that female circumcision is designed to diminish a woman's sexual response, so that she will be less likely to commit adultery.

Marriage

Restrictions on choice

Prohibition on marrying non-Muslim men

Islamic jurisprudence only allowed a Muslim woman to marry a Muslim man, based on their interpretation of the Qur'an. This injunction has been the cause of great personal grief for inter-faith couples and even the spark of violence and honor killings. According to all schools of Sunni and Shi'a jurisprudence, a non-Muslim man must either convert in order to marry a Muslim women or the couple must be seperated.

This ruling, derived from a verse in the Qur'an and for which there was scholarly consensus^[2][3][4], is designed to ensure that a Muslim wife and her future offspring continue to follow the religion of Islam, lest a non-Muslim husband enforces his views on the family.

Muslim men have fewer restrictions - they are permitted to marry Muslim women and people of the Book (Jewish and Christian women).

In recent times, some modernists have argued that the classical view does not necessarily follow from the Qur'anic verses and that Muslim women should be given more freedom, though in both the scholarly and lay communities this remains a decidedly fringe view vis-a-vis the traditional view.^[5]

Child marriage

Forcing a female to marry someone against her explicit wishes is forbidden in Islam. Nevertheless Shari'ah does not apply these protections to children. This failure to protect children has two aspects:

1. A father or guardian must ask the consent of his virgin daughter before offering her in marriage, based on a well known sahih hadith. However, according to that same hadith, if she remains silent when asked, offering no explicit acceptance, this counts as consent (Sahih Muslim 8:3303,Sahih Muslim 8:3305).

2. A girl is expected to make a life changing decision on marriage while still a child, with very limited experience and utterly dependent on her parents. Child marriages occur all over the world, but especially in Muslim countries that practice Shari'a. The UN regards child marriage as a human rights violation and aims to eradicate it by 2030. The girl is vulnerable to spousal abuse and childhood pregnancy which greatly jeopardizes her health and future.

Muhammad married Aisha at 6, had sex at 9 years of age

Ayatollah Khomeini, the Iranian Shia religious leader, married a ten-year-old girl when he was twenty-eight.Khomeini called marriage to a prepubescent girl "a divine blessing," and advised the faithful: "Do your best to ensure that your daughters do not see their first blood in your house."

Speaking about the waiting period for divorce, the Qur'an states:

Polygamy (four wives per husband)

Muhammad's Allowed Wife Limit in the Qur'an

Muhammad on Polygyny for his Son-in-Law Ali

Muhammad was a polygamist, and Islam allows a man to marry up to four wives at any one time:

It is also interesting to note that a Muslim male does not require the permission of his first wife before marrying a second. These articles looks at the various arguments that are often presented in defense this practice and the choices made by Muhammad.

Verse 4:3 is often partially quoted to explain demonstrate a Muslim man may marry up to four women. However, if he cannot deal justly with each of the wives then he is forbidden to marry that many; and can marry only one wife, to prevent treating women unfairly. It is usually then explained that the use of the word "Justice" or "Justly" (depending on which translation is being used) refers to the man's ability to treat each of his wives exactly the same in every regard: not just materially (ie. food, clothing, shelter, time, money, etc..) but also that he must be able to love them all exactly the same. He must be able to feel the same amount of affection and love for each of his wives. If he cannot do this, then, according to (this interpretation of) the Qur'an he cannot marry more than one wife. According to most scholars, however, Qur'an 4:3 has nothing to do with treating your wives equally, but is in fact about orphans and their Mahr. Injustice in this verse is generally understood as being in reference to the financial equality regarding the Mahr (for orphans) and financial viability of having that many wives, not equality between them.

Autonomy of virgins vs. non-virgins

Temporary Mut'ah marriages

Mut'ah is a temporary arrangement whereby a man and a woman enter into a contractual arrangement to marry each other for a specified period of time. The time can be as little as one hour or as long as several years, though most Mutah contracts are for hours or a few days. The man gives the woman something of value, and in exchange he is allowed to enter into sexual relations with her, legally, without committing fornication, since they are "married." At the end of the period specified in the contract, each party walks separate ways and neither is indebted to the other. Mut'ah can thus be seen as a religiously-endorsed form of prostitution. The practice actually dates back to Arabia's pre-Islamic days, and was recorded by the pagan Latin historian Ammianus Marcellinus writing in the 300's.

Mutah is practiced mainly by Shi'ites today, although at one time Muhammad permitted it for all Muslims. This is one of many areas of disagreement between Sunnis and Shi'ites: Sunnis believe Muhammad abrogated Mutah, while Shi'ites disagree and still practice Mut'ah as allowed by Muhammad.

According to Islamic literature, Mutah was first made unlawful by Mohammad on the day of the battle of Khaybar (a battle against a jewish tribe named Khaybar), after apparently being practiced since the conception of Islam. It was then made lawful again on the day of Conquest of Makkah for 3 days by Muhammad, when his companions complained to him their desire for women. From this point, it is disagreed upon between Sunnis and Shias on whether Mutah was made again unlawful by Muhammad or not. However, the practice of Mutah continued in the early Muslim Community by the companions until Umar (the second caliph) forbade it sometime between 13-23 AH. Some of Muhammad's companions however still held the belief that Mutah was never made again unlawful by Muhammad, the most notable of which is Ibn Abbas.^[6]

The following quotations regarding Mut'ah marriages are from a Shi'ite Muslim website.^[7]

Whenever man sets foot on the earth the need to travel always emerges. Sometimes traveling can involve man going thousands of miles away from home, sometimes for moths, even years. Do one's sexual desires just evaporate when an individual is traveling? Sexual desire isn't like some light switch that turns off when a man leaves his wife to set off on his travels, and turns back home when he gets back! Sexual desire is something that remains permanently with a human, when it accompanies him at all times then how can he curtail such sexual feelings? When someone is traveling and accessing his wife is impossible, and he is incapable of summing her to join him, then what will a young red-blooded male do? Miles away from home, feeling sexually aroused his situation is not one wherein he can get permanently married, so what is he to do? He will feel the only way that he can relieve himself is by amalgamating himself into the society around him. Islam does not permit a person to sexually relieve himself through masturbation nor is he permitted to adopt the ways of the kufr and indulge himself in fornication, it offers him a legitimate mechanism with which to relieve himself and that is temporary marriage.

It is not just traveling, that might necessitate Mutah, there are many in society who just does not have the financial ability / standing to get permanent married, yet they still have sexual desires, again Mut'ah is there to ensure that they practice sex within the boundaries set by Allah (swt).

Islam is a religion that is suited for all nations and ages. Mut'ah is a good example of that. It is only the Deen of Islam that caters for sexual desire by permitting a legitimate method of control. For others societies the only mechanism that they see as the solution to relieving sexual feelings is through the practice of fornication. In the western world adultery and fornication are common and openly performed. Mut'ah is a way of protecting a person from committing these serious sins and vices.

Imam al-Baydawi, in his famous book, The Interpretation of the Baydawi, says, "The purpose of the contractual marriage is the mere pleasure of intercourse with a woman, and her own enjoyment in what she has given" (p. 108).

Mahr

Islamic scriptures describe the mahr, or primarily financial gift made by a groom to his bride upon a nikah (intercourse) contract, as 'the recompense for your having had the right to intercourse with her'.

The purpose of the mahr is to serve as a payment from a man to a woman for the future sexual relations (nikah) he will have with her. This is further illustrated by the requirement for a mahr in temporary "marriages", the statements of Muhammad, and the fact that a mahr cannot be taken back (except under extenuating circumstances) because the man has availed himself of the service for which it was payment. The Qur'an supports and confirms, rather explicitly, the explanation provided in these sahih hadiths.

Nikah

The Arabic word for "marriage" is "zawaj". In Islamic law, marriage is considered under the concept of nikah, a legal and financial contract between a male and a female Muslim. Nikah literally means "sexual intercourse".

Domestic obedience and punishment

Obedience

Saudi feminist Wajeha Al-Huwaider describes the lives of many Arab women as similar to a prisoner. As she puts it, "the Arab woman is a prisoner in her own home, has committed no crime, was not captured in battle, does not belong to any terrorist group."

In the book The Ideal Muslimah, Dr. Muhammad Ali Al-Hashimi notes:

Sexual submission

Rape of Wives, Captives, and Slave Women in Islam

The Qur'an and hadith and, subsequently, Islamic law, all allow men to rape their female slaves, wives (Quran 2:223), and women captured in war. The rape of other then one's slaves is, however, prohibited. Still, several hadiths describe the rape of captive women by Muhammad's companions and his failure to condemn such actions when made known to him. Qur'an chapter 4 verse 24 discusses lawful and forbidden women for Muslim men.

What we see in the beginning of this verse as “forbidden” refers to sexual intercourse. The Qur'an dictates, women already married are forbidden for Muslims except those whom their right hands possess (sex slaves). It is obvious from this verse, a Muslim can have sexual relations with his slave-woman.

Coitus Interruptus

Al-'Azl, (العزل) also known as coitus interruptus, is the practice of having sexual intercourse with a woman but withdrawing the penis before ejaculation. This was an important topic for Muhammad and his companions as evidenced by the abundance of Hadith material on the subject. According to Muhammad, when raping a captive, it's better if you do not pull out the penis at the end.

Disciplinary punishment

Wife-beating

Muslim apologists will assert that the term "and beat them" speaks only metaphorically. Others insist it means only a simple strike, as with hitting them with a feather or toothpick. Yusuf Ali adds the word 'lightly,' which never appears in the Arabic. Yet, a simple observation of the text shows any of the above to be erroneous.

The text presents a series of progressive disciplinary measures if a man suspects disobedience from his wife:

1. Admonish her. Give her a verbal warning regarding her behavior.
2. sleep in separate beds from her. This humiliates the woman, for in Islam a woman's worth is measured, in part, by her ability to reproduce offspring, particularly male offspring. Sleeping in a separate bed from the wife dishonors her by limiting her ability to reproduce a male child.
3. Beat them. This is the third, most significant step of the progressive discipline process and is expected to be the one that produces the desired result if the first two failed.

Suggestions such as of hitting the woman "lightly" with a toothpick as the most severe disciplinary measure don't seem to follow logically from the steps laid out in the text and lack textual and traditional attestation.

In the most authoritative biography of Muhammad, written by ibn Ishaq, we find the following words of the prophet of Islam:

Ibn Kathir records a hadith that states:

Ibn Kathir further elaborates what constitutes ill conduct:

Scholar Abdul-latif Mushtahiri:

Domestic Violence Against Women in Islam

Wife-beating in the Muslim world comes from the teachings of Islamic religious texts such as the Quran and the Hadiths. It has been an accepted part of Islam since its inception. Muhammad himself made attempts to limit the degree of violence, yet nevertheless declared "A man should not be asked why he beats his wife."^[13] and according to Aisha, "I have not seen any woman suffering as much as the believing women. Look! Her skin is greener than her clothes!"^[14] Domestic violence has been used as a tool to maintain control and dominance over Muslim women, this has created an intensely patriarchal society where men rule women and women must submit to men. This article explores how wife-beating is authorized by the Qur'an and Hadiths along with commentary from Muslim scholars, statistics on wife beating in the Muslim world and common apologetic arguments made by Muslims and responses to them. In-Depth Analysis of an Apologetic Claim

This article looks at the mysterious translation of the verb darb (meaning "hit" "beat" or "strike") that has been presented on a few sites which claim to have "modern" translations of the Qur'an and are directed at non-Arabic speakers who lack adequate command of the language. It has been claimed that the following verse (4:34) does not mean "to beat them," but rather to "separate from them" or to "strike them out."

Beat them and leave/separate/abandon them are different phrases in Arabic. The arabic word idribohunna derived from the root word Darab does not have any other meaning than Beat when it comes to mean "Yadreb Ahadan" = Hit someone. Idriboohunna (أضربوهن) means beat them (for female plural). Adriboo Anhunna (اضربوا عنهن) is the one that means abandon or leave them. According to the Arabic lexicon^[16]:

Quran 4:34 says Idriboohunna أضربوهن, not Adribu Anhunna اضربوا عنهن. These two phrases have different meanings. All the verses that contain darb against a human are understood to mean "beat" or "strike" that human, by their context, and this is agreed upon by even the sources making these strange claims. Why they then consider verse 4:34 to be a special case and translate "darb" to mean "separate from them" remains a mystery.

Muhammad's instruction and practice

Divine wrath

Rights

Divorce

The marriage of women who convert to Islam or whose husbands leave Islam is annulled

Based on another Qur'anic verse and numerous hadiths, Islamic jurisprudence has often decreed the break-up of existing marriages when a wife converts to Islam but the husband does not to do so. This ruling, for which there is also classical scholarly consensus^[2][17], is based on the following verse:

The classical scholars also ruled that if on the other hand a husband converts to Islam, the marriage remains intact so long as his wife is a Christian or Jew. If a Muslim husband or wife leaves Islam, the marriage to his or her Muslim spouse is immediately annulled, though some held that the marriage is unaffected if only the wife leaves the religion, while others said that she becomes the husband's slave.^[2]

Grounds for a Man to Divorce His Wife

Ibn Kathir, the one of the most respected of Qur'an commentators:

Divorce process for women

A wife can ask her husband to divorce her, and if he releases her from the marriage she makes a payment to him of the mahr (dowery) she had received or other agreed payment. This is known as khula'. If he refuses, she can try to get a divorce by judicial decree when there are grounds for which his consent is not required (such as inability or failure to fulfil his marital obligations, desertion, insanity, cruelty).

Ibn Kathir quotes Sahih Muslim:

Muhallil Marriage

A woman can remarry her first husband only if she marries another man and consummates the marriage with him, then proceeds to divorce that man:

Concubinage

Adultery (with slaves) is Permitted in Islam

Main Articles: Zina, and The Punishment for Zina

Zina (Arabic: الزنا‎ ) is the Arabic word for "unlawful sexual relations." It is used to refer to both adultery and fornication.

The Islamic definition of adultery differs from the modern/secular definition as well as the Biblical definition. The meaning also differs in relation to gender. Adultery is a serious offense in Islam and earns the death penalty. However, according to the most widely accepted definitions of the term, Islam in fact allows adultery, so long as it is with one's slave women.

Moreover, not only may a Muslim man have sex with a married woman who is his slave, but he may also sell or give her as a slave to another man for him to have sex with .

Men Can Have Sex with (Rape) Female Slaves

Sahih Muslim Chapter 29: IT IS PERMISSIBLE TO HAVE SEXUAL INTERCOURSE WITH A CAPTIVE WOMAN AFTER SHE IS PURIFIED (OF MENSES OR DELIVERY) IN CASE SHE HAS A HUSBAND, HER MARRIAGE IS ABROGATED AFTER SHE BECOMES CAPTIVE

"What the right hand possesses" is a common euphemism in Arabic for a slave or slaves. Ibn Timiyya says in volume 32, p.7 the following:

In the same volume (page 89), Ibn Timiyya says boastfully:

Women Cannot Have Sex with Male Slaves and POWs

In a tafsir explaining surah 23 verses 1-7 of the Qur'an, Abul A'la Maududi explains that women are not allowed to have sex with male slaves and captives.

Ban on Forcing Slave Girls into Prostitution

The slave women are 'forgiven' for what they were forced to do by the slave owner, but no punishment is prescribed for this action.

Attire

Hijab

According to the ahadith and sira, Umar bin Al-Khattab, a companion of Muhammad, wished that Muhammad would reveal verses from Allah requiring women to wear the hijab. When Muhammad did not oblige, Umar followed Muhammad's wives out at night and in the dark when they went to go to the toilet and made his presence known, later informing the prophet that he had spied his wives relieving themselves in the dark, and that had his wives been cloaked in a garment such as the hijab, he would not have been able to identify the women as being the prophet's wives. Having heard of this, Muhammad received the revelation that Umar had requested, and the verses of the hijab were sent down from Allah.

Women's Responsibility to Cover

Modesty valued more than life

In the Muslim holy city of Mecca in March 2002, fifteen teenage girls perished in a fire at their school when the Saudi religious police, the muttawa'in, wouldn't let them out of the building, because in the female-only school environment, they had shed the all-concealing outer garments that Saudi women must wear in the presence of men. They had not put these garments back on before trying to flee from the fire. The muttawa'in preferred that they die rather than transgress Islamic law, and actually battled police and firemen who were trying to open the school's doors and to save the girls. ^[21]

Value of testimony

Women's testimony equal to half of man's

Females found responsible and punished for rape

In March 2007, a 19-year-old Saudi woman received a sentence of 90 lashes. Her crime? A man threatened to tell her father that they were having an affair unless she met him alone. When she did, she was kidnapped and repeatedly raped, after which her brother beat her because the rapes brought shame to the family. Rather than giving her justice, a Saudi court sentenced her to be lashed ninety times because she had met a man alone who was not related to her. Fuziyah Al Ouni, a feminist activist, said she was outraged by the case. 'By sentencing her to 90 lashes they are sending a message that she is guilty.'^[22]

"In 2004, a sixteen-year old girl, Atefeh Rajabi, was hanged in a public square in Iran. Her crime? Rajabi was charged with adultery -- which probably means she was raped. Her rapist was not executed. Rajabi told the mullah-judge, Haji Rezaii, the he ought to punish men who rape, not their victims." The judge both sentenced and personally hanged Rajabi because, in addition to her crime, he said that she had "a sharp tongue."^[23]

On November 1, 2008 a 13-year-old girl in Somalia was stoned to death after being raped by three men. She was unable to produce the required four witnesses to the rape and was therefore accused of adultery as required by Shari'a law. It was reported that the girl begged for mercy before being buried waist high in the ground and pummeled to death by a mob of 1,000.^[24][25]

Islamic law restricts the validity of a woman's testimony, particularly in cases involving sexual immorality. And Islamic legal theorists have limited it even farther, in the words of one Muslim legal manual, to "cases involving property, or transactions dealing with property, such as sales." In other judicial areas only men can testify. It is virtually impossible, therefore, to prove rape in lands that follow these Sharia provisions. If the required male witnesses can't be found to exonerate her (four men who testify to seeing the actual crime, according to the Qur'an), the victim's charge of rape can become an admission of adultery. That accounts for the grim fact that as many as seventy-five percent of the women in prison in Pakistan are, in fact, behind bars for the crime of having been raped.^[26]

Inheritance

Segregation

Sex Segregation in Islam

Islam generally prohibits free-mixing between men and women. It is argued that direct references for this prohibition can not be found in either the Qur'an or the Sunnah of the Prophet; but this can not mean that such conduct is permissible in Islam. As a complete way of life, Islam has not failed to address the matter. Various scholars of Islam have formulated their opinions on this matter and acknowledged the practice of free-mixing as a crime punishable under Shari'ah laws. All of the Jurists have sourced their views from the Qur’an and the Sunnah of the prophet, using these as the basis of their argument. Under Islamic law, it is not permissible for women to freely mix or socialize with non-Mahram men who are not her husband (Mahram i.e. those whom marriage is prohibited in Islam, include fathers, uncles, brothers and close blood relatives) under any circumstances. Islamic scholars are unanimous on this matter.

Women must never be alone in the presence of another man who is not a relative

A women who walks or goes out unaccompanied or in the company of a man who is neither their husband nor a close relative is at risk of arrest on suspicion of prostitution or other "moral offences" in certain majority-Muslim countries.

In February 2008, an American businesswoman of Jordanian descent was arrested in Saudi Arabia after being found by the religious police sitting in the family area of a Starbucks with a male business associate. They had been working together at their nearby office when power was lost, and they decided to go to Starbucks to use the wireless internet. She was released from jail a day later, bruised and crying after being detained and beaten for being in the presence of another man not a relative.^[27]

Adult Suckling

In Islamic societies gender segregation is a common practice to avoid any form of adultery. Thus men and women are not advised to stay in the same room if they are alone, and any adult woman is required to wear a veil in public. Only if men and women are closely related (Mahram) or married is there no need for gender segregation and hijab. However, it is obvious that the strict application of Islamic law may cause some trouble and difficulties to daily life, particularly concerning business. Some scholars today and historically have suggested a way around this:.

Dr. Atiyya, the head of the Hadith Department in Al-Azhar University, repeatedly declared that the sources he quoted belonged to the Islamic holy texts with the highest possible authority. According to him, no fewer than 90,000 contemporary scholars confirmed that the hadith referred to is authentic.

See also

• Qur'an, Hadith and Scholars:Women

References