Women in Islamic Law: Difference between revisions

Women are legally disadvantaged by Islamic law 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.

The writings of Professor Kecia Ali are renowned regarding the historical and modern Islamic approaches to women. Before her, Women and Gender in Islam by Leila Ahmed was also regarded as a seminal book on the subject. Ali's book Sexual Ethics and Islam is particularly wide-ranging.^[1] She argues that the Quran is androcentric in terms of almost always addressing men and privileging male sexual agency.^[2] Ali also notes in her book the "very real dissonance between the cultural assumptions undergirding the classical edifices of jurisprudence and exegesis and the modern notions influencing Muslim intellectuals and ordinary people everwhere".^[3] Throughout the book she critiques feminist and modernist interpretations while noting where they may have merit, as well as apologetics that misquote, mistranslate, or side step difficult issues. She also criticises some aggressively patriarchal and indeed misogynist interpretations. While warning against blind optimism on the prospects for transformation, she suggests the importance of rejecting medieval interpretations and not taking the Quran and hadiths as a repository of regulations to be applied at all times and places.^[4]

Genital mutilation

Female genital mutilation (FGM) is obligatory in the Shafi'i madhab^[5] and encouraged by the remaining three madhabs, namely the Hanafi, Hanbali, and Maliki. Salafi scholars also encourage the practice. In universally conceiving of FGM as being either an obligatory or favorable practice, the schools of Islamic law agree that prohibiting FGM altogether would not be acceptable, as this would be tantamount to contravening God's laws and preferences. Views on the specific type of FGM required or permitted vary within and between the madhhabs. Some prominent modern Islamic scholars have dissented from the favorable consensus of the Islamic tradition and ruled it to be unlawful.

The Islamic legal tradition, while differing on its implementation, embraced FGM wholeheartedly, and, in the hadith literature, Muhammad is recorded as tacitly approving of the practice (Sahih Muslim 3:684), prescribing circumcision in general without specifying the requirements thereof per gender (Sahih Bukhari 7:72:777), and commenting generically on its implementation (Sunan Abu Dawud 41:5251). Nowhere is Muhammad recorded prohibiting the practice.

In 2012, the Muslim Brotherhood worked to decriminalize FGM. According to Mariz Tadros (a reporter),"the Muslim Brotherhood have offered to circumcise women for a nominal fee as part of their community services, a move that threatens to reverse decades of local struggle against the harmful practice [...] Many of the Brothers (and Salafis) argue that while it is not mandatory, it is nevertheless mukarama (preferable, pleasing in the eyes of God)."^[7]

Marriage

Restrictions on choice

Prohibition on marrying non-Muslim men

Islamic law prohibits Muslim women from marrying disbelievers. If a Muslim woman converts to Islam, her marriage to a non-Muslim husband is nullified. If a Muslim woman's husband apostatizes, their marriage is also nullified.

This ruling, derived from verses in the Qur'an, has enjoyed legally-binding scholarly consensus (ijma)^[8][9][10],

In a verse about the treaty of Hudaybiyyah (before the conquest of Mecca), believing women and disbelieving men were declared unlawful for each other.

After the conquest of Mecca, Muslim men, by contrast, were given fewer restrictions and were permitted to marry Muslim women and people of the Book (this includes Jewish and Christian women).

In recent times, some Islamic 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 fringe view vis-a-vis the traditional view.^[11]

Child marriage

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 the same hadith, if she remains silent when asked, offering no explicit acceptance, this counts as consent (Sahih Muslim 8:3303, Sahih Muslim 8:3305). As a result, while women have the decision as adults to decide whom they marry, young girls may be married off before they are physically (or, much less, mentally) capable of providing anything in the way of consent. The Quran, in providing guidelines on the procedure for divorce, states what must be done in the case of wife who has not yet reached puberty. Child marriage was practiced by Muhammad himself, who married Aisha at the age of six and copulated with her at the age of nine, while he was in his fifties.

Ayatollah Khomeini, the Iranian Shi'ite 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."

Today, child marriages occur all over the world, but the practice is especially common in Muslim-majority countries, particularly in those 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.

Polygamy (four wives per husband)

Islamic law permits men to marry up to four wives (alongside an unlimited number of concubines), while women are restricted to a single husband and are prohibited from any other form of sexual activity. Modern Islamic scholars differ on whether or not a bride may stipulate as a condition of her marriage that her husband remain monogamous. Some argue that this is permissible while others maintain that such a restriction cannot be justified as it impedes on rights that God has given men (where accepted, this practice is implemented through what is known as a talaq al-tafwid, or 'delegated divorce'). Quran 4:3, which permits Muslim men to take up to four wives, also demands that they do 'justice' to their wives. According to most Muslim scholars, this does not prohibit any sort of romantic favoritism, and serves only to make sure that those who take on multiple wives have the minimum necessary financial wherewithal to do so. Muhammad himself (who was exempt from the four-wife limit per the Quran,^[12] married nearly a dozen wives (having eleven at once), and kept concubines) openly pronounced and practiced his preference for Aisha, who was his favorite and youngest wife.

Muhammad also restricted his son-in-law Ali (who was also his first cousin) from engaging in polygamy and demanded that he remain monogamous with his daughter Fatima.

Autonomy of virgins vs. non-virgins

A hadith recorded in the Muwatta of Imam Malik, one of the earliest written collections of hadiths, states that women who have already been married are entitled to greater autonomy in who they marry than virgins (who have never been married). The various schools of Islamic law have interpreted this and hadiths to a similar effect in various ways and have given women who have married at least once greater rights with respect to their marital lives than those who have not.

Mahr

Islamic scriptures describe the mahr, or primarily financial gift made by a groom to his bride upon the marital nikah (sexual 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 mut'ah marriages, other similar statements of Muhammad, and the logic inherent in the Quranic verses which stipulate that mahr cannot be taken back in divorce (except under extenuating circumstances) once a man has had intercourse with his wife.

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".

Temporary Mut'ah marriages

Mut'ah, in Islamic law, 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. As within all Islamic marriages, the woman is not allowed to refuse her husband's sexual advances or commands. At the end of the period specified in the contract, each party walks separate ways and neither is indebted to the other. The practice dates back to Arabia's pre-Islamic days, and was recorded as far back as by the Latin historian Ammianus Marcellinus in the 300's. Historians have identified the institution of Mutah as being comparable in practice to modern day prostitution.

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.

The Sunni Shafi'i scholar al-Baydawi said of Mutah, "The purpose of the contractual marriage is the mere pleasure of intercourse with a woman, and her own enjoyment in what she has given."^[13]

The practice of Mutah is mentioned in several authentic hadiths.

The following quotation regarding Mut'ah marriage is taken from a Shi'ite website.^[14]

Domestic lives

Obedience

Under Islamic law, women are obligated to obey their husbands in their domestic, social, professional, sexual and, to a limited extent, religious lives.

In his book The Ideal Muslimah, Dr. Muhammad Ali al-Hashimi writes:

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."

Punishment

Wife-beating

Quran 4:34 instructs Muslims men to, among other things, beat their wives if they fear disobedience from them. Muslim scholars agree on the permissibility of the practice but disagree on the conditions for and nature of the beating permitted. Some modernist Islamic scholars argue that the term "and beat them" speaks only metaphorically. Some other scholars, including historically, have argued that it means only a simple strike, as with hitting them with a feather or toothpick. The Islamic tradition and scriptures militate against this rereading, which, as a result, has failed to achieve widespread purchase amongst Muslim scholars. Muhammad made attempts to limit the degree of violence, saying, "None of you should flog his wife as he flogs a slave and then have sexual intercourse with her in the last part of the day"^[15], but also declared "A man should not be asked why he beats his wife."^[16] Hadiths report that Muhammad hit Aisha,^[17] who is herself reported to have said, "I have not seen any woman suffering as much as the believing women. Look! Her skin is greener than her clothes!"^[18]

One of the earliest and arguably most important biographies on Muhammad's life, that of Ibn Ishaq, records the following:

Ibn Kathir, the author of one of the most relied-upon exegetical works on the Quran, elaborates what constitutes ill conduct:

The Scholar Abdul-latif Mushtahiri states:

Divine wrath

Women who fail to obey their husbands, particularly when it comes to their husband's sexual desires, face the wrath of God and the angels.

Rights

Women are also accorded a number of rights under the nikah contract. Men are obligated to provide for their wives financially and not to be too harsh to them, although the meaning of this latter requirement is set by the marital and gender norms of 7th century Arabia, where wife-beating was commonplace and acceptable.

Women whose husbands fail to fulfill the right to maintenance may be eligible for requesting divorce, though this differs between schools of jurisprudence:

Control over movement and taking additional wives

Under Islam, a husband has a right to take up to four wives and has significant control over his wives. Under the Hanbali (but not Hanafi) school, women may stipulate conditions in the marriage contract to grant greater freedom of movement or to object to her husband taking additional wives, with a right to divorce if these are broken. In many cases such stipulations will not have been agreed ahead of the marriage, though some modern reforms of family law have sought to improve the situation. Otherwise the husband's rights are automatic.

Divorce

Requirements for divorce

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 (item or sum of financial worth) she had received or some other agreed payment. This is known as Khul'. 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 fulfill his marital obligations, desertion, insanity, or cruelty).

Ibn Kathir, quoting Sahih Muslim, writes:

The requirements for men to divorce their wives differ significantly and are far less restrictive than those imposed on the wife. Men can divorce their wives on the basis of simple dissatisfaction and can even recall their divorce thereafter a limited number of times.

Triple-talaq

If a man divorces his wife three times, his wife can remarry him only if she first marries another man, consummates the marriage with the other man, and then divorces that man. A man may issue multiple divorces at the same time, in what is known as a double- or, more often, triple-talaq (talaq meaning 'divorce' in Arabic, this can entail as little as saying the word 'divorce' two or three times). While this practice is discouraged and even illegal in Islamic law, it has been considered binding by the majority of Islamic scholars.

The ruling in Islamic law that deems multiple simultaneous divorces to be binding has proven controversial across the world and has been outlawed in countries including India, Pakistan, Bangladesh, and Sri Lanka. Controversy around the law has emerged largely where men have issued triple-talaqs to absolve themselves of the financial responsibility for and maintenance of their elderly or otherwise dependent wives. The ruling has also proven controversial where couples have tried to remarry after a husband declares a triple-talaq in a fit of anger, with or without realizing the fact that the declaration is considered legally binding and irrevocable (leaving the wife in the position of having to marry and sleep with another man in order to restore her original marriage).

The marriages of female converts and those with apostate husbands are nullified

There is a consensus among classical Islamic scholars that if a woman converts to Islam and her husband fails to, their marriage is nullified.^[21][8] This ruling is derived, in part, from Quran 60:10. 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.^[8]

Concubinage

Permissibility of female sexual slavery

In nearly every instance where the Quran commands (men) to be chaste, it repeats that they need not be chaste with their wives and 'those whom their right hand possesses', which is universally acknowledged by historians and Islamic scholars as an Arabic euphemism which refers to one's slaves.

An entire chapter in Sahih Muslim (chapter 29) is dedicated to the topic and is entitled: 'It is permissible to have sexual intercourse with a captive [i.e. slave] woman after she is purified (of menses or delivery). In case she has a husband, her marriage is abrogated after she becomes captive.'

Ibn Taymiyyah writes:

Permissibility of raping captives and slaves

Rape, a crime known in Islamic law as zina bil-ikrah or zina bil-jabr (literally "fornication by force"), is generally defined by Muslim jurists as forced intercourse by a man with a woman who is not his wife or slave and without her consent. As with enslaved females, according to Islamic law, married women are required to oblige their husbands' sexual advances - raping one's wife is permissible.^[22] The concept of "rape" is thus deemed to be equally non-existent in the contexts of both marriage and slavery.

A small number of hadiths are cited to support the Islamic punishments for rape. These narrations relate to the rape of free women and of female slaves who are not owned by the perpetrator. However, the Qur'an, on numerous occasions, permits Muslim men to have sexual relations with their own female slaves (famously referred to as "what your right hand possesses"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, there are hadith narrations in which female captives were raped prior to being ransomed back to their tribe.

Prohibition on male sexual slavery

In his exegesis of the Qur'an, Abul A'la Maududi explains how and why the Islamic tradition holds that women are not allowed to have sex with male slaves and captives.

Attire

Hijab

Islamic scriptures set out dress requirements for Muslim women and for Muhammad's wives. Umar bin Al-Khattab, a companion of Muhammad, wished that Muhammad would reveal verses from Allah requiring his wives to cover themselves when in public. 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, 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 verse of hijab was sent down from Allah stating that Muhammad's wives may be spoken to by visitors to their home only behind a screen.

Other verses set out requirements for believing women in general to wear an outer garment called the jilbab and a cloth or khimar, covering the bosom. Islamic scholars differ in their interpretation of the verses prescribing female attire. All four madhabs agree by consensus that women must cover their entire body, excluding their hands and face, except for Hanafis, who also permit women to reveal their feet. These clothing requirements only apply in the presence of unrelated men (in addition to some male relations) and during prayers. Hanafis and some other scholars also require women to observe these requirements in the presence of non-Muslim women, fearing that these non-Muslim women may describe a Muslim woman's physical features to other men.

Value of testimony

Half value of testimony in general

Islamic scriptures dictate that, in a court setting, a woman's testimony is worth half a man's. The reasoning given in Sahih Bukhari is the deficiency of the female intellect. Islamic jurists have variously endorsed some exceptions to this rule-of-thumb, however. In legal cases relating to matters of female anatomy or specialty, a woman's testimony may be equal to a man's. On the other hand, Islamic jurists have also dictated that there are certain domains of law where a woman's testimony cannot be counted for anything at all. The diminution of female testimony in Islamic law has proven especially problematic where it has disabled women from testifying that they were raped. In some reported cases that were described as rape by the women involved and where there existed evidence of those women having had some sort of sexual encounter, the women have, at times, been prosecuted for adultery (with stoning to death) or fornication (with 100 lashes).

Segregation

Sex Segregation in Islam

In Islamic law, unrelated women and men are not allowed to be alone together, have any sort of physical contact, engage in frivolous conversation, look at one another for any reason other than momentarily for the purpose of identification, or pray such that a woman is located in front of or adjacent to any man (women must stand behind men in prayer). Muhammad's wives are instructed in the Quran to remain at home as much as possible and in hadiths Muhammad permitted women to live and travel on significant journeys only under the supervision of a male guardian or relative. Islamic law, as a result, virtually excludes the possibility of male-female friendships. Islamic scholars have traditionally taken these specific limitations on women's presence and participation in the public sphere and have implemented them through more comprehensive policies of sex segregation. While some modern Islamic scholars have argued against broader restrictions, such as gender-segregated classrooms or other society-wide gender segregation measures, on the basis of other hadiths and because these broader restrictions are not explicitly mentioned in Islamic scriptures, the majority have embraced what they perceive as common-sense modern-day extensions of the specific rulings and attitudes found throughout Islamic scripture.

Adult suckling permits co-mingling

Adult suckling (Arabic: رَضَاعَةُ الْكَبِيرِ), or the act of breastfeeding a male adult, is an abrogated practice mentioned in several relied-upon collections of hadiths. According to five hadiths in Sahih Muslim, Muhammad at one time plainly instructed the daughter (or wife -- sources are unclear) of a companion named Suhail to suckle a "grown-up" freedman named Salim so that Salim would become the daughter's mahram, or a relation whom the daughter could no longer marry, and thus render Salim's cohabitation with the family appropriate and legal. The practice, sanctioned by a number of traditional jurists, is popularly rejected by Islamic scholars today, but was the subject of a controversial fatwa from a scholar at Azhar in 2007. A minority of Islamic scholars continue to endorse the practice.

Inheritance

Generally, Islam grants women half the share of inheritance available to men if they inherit from the same father. This forms part of a wider Quranic and cultural context in which men were expected to provide for women and to pay a dower for marriage. However, it is easy to imagine scenarios even in the 7th century where the beneficiaries are at different stages of their lives or marital circumstances such that no rationale would justify the allocation fixed in the Quran.

See also

• Qur'an, Hadith and Scholars:Women

References