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

Female genital mutilation (FGM) is obligatory in the Shafi'i madhab^[1] 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). No where 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)."^[3]

Marriage

Restrictions on choice

Prohibition on marrying non-Muslim men

Islamic law prohibits Muslim women from marrying non-Muslim men. 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 a verse in the Qur'an, has enjoyed legally-binding scholarly consensus (ijma)^[4][5][6],

Muslim men, by contrast, have fewer restrictions are 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.^[7]

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 most maintain that such a restriction cannot be justified as it impedes on rights that God has given men. Quran 4:3, which permits Muslim men to take up to four wives, also demands that they do 'justice' to them. According to most Muslim scholars, this is 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^[8], 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 woman 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.

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 having been practiced since the conception of Islam. It was then made lawful again on the day of Conquest of Makkah for 3 days by Muhammad, at which point his companions complained to him their desire for women. From here onwards, it is disagreed upon between Sunnis and Shias on whether Mutah was made again unlawful by Muhammad or not. Historical records show that 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. Even at this point, however, a number of Muhammad's prominent companions held the belief that Mutah was never made again unlawful by Muhammad, the most notable being Ibn Abbas.^[9]

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."^[10]

The practice of Mutah is mentioned in several authentic hadiths.

The following quotation regarding Mut'ah marriage is taken from a Shi'ite website.^[11]

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"^[12], but also declared "A man should not be asked why he beats his wife."^[13] Hadiths report that Muhammad hit Aisha^[14], 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!"^[15]

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 these rights are eligible for requesting divorce.

Divorce

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

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^[4][18], 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.^[4]

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 (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:

vs. Requirements for men:

Obligatory marriages

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

Permissibility of female sexual slavery

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:

Prohibition on male sexual slavery

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.

Permissibility of raping captives and slaves

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.

Prohibition on forcing slaves 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.

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. ^[22]

Value of testimony

Half value of testimony in general

Insufficient value of testimony of rape victim

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.'^[23]

"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."^[24]

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.^[25][26]

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.^[27]

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.

Prohibition on being alone with men

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.^[28]

Adult suckling permits co-mingling

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.

Inheritance

See also

• Qur'an, Hadith and Scholars:Women

References