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Women in Islamic Law: Difference between revisions
Merged sections and more accurate regarding divorce
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====Polygamy (four wives per husband)==== | ====Polygamy (four wives per husband)==== | ||
{{Main|Polygamy in Islam|Dealing Justly with Wives and Orphans (Qur'an 4:3)}}Islamic law permits men to marry up to four wives (alongside an unlimited number of concubines | {{Main|Polygamy in Islam|Dealing Justly with Wives and Orphans (Qur'an 4:3)}}Islamic law permits men to marry up to four wives (alongside an unlimited number of concubines). {{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,<ref>{{Quran|33|50}}</ref> 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.{{Quote|{{Quran|4|3}}|And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess; this is more proper, that you may not deviate from the right course.}}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.{{Quote|{{Bukhari|||5230|darussalam}}| Narrated Al-Miswar bin Makhrama: | ||
I heard Allah's Apostle who was on the pulpit, saying, "Banu Hisham bin Al-Mughira have requested me to allow them to marry their daughter to Ali bin Abu Talib, but I don't give permission, '''and will not give permission unless 'Ali bin Abi Talib divorces my daughter in order to marry their daughter, because Fatima is a part of my body, and I hate what she hates to see, and what hurts her, hurts me."'''}} | I heard Allah's Apostle who was on the pulpit, saying, "Banu Hisham bin Al-Mughira have requested me to allow them to marry their daughter to Ali bin Abu Talib, but I don't give permission, '''and will not give permission unless 'Ali bin Abi Talib divorces my daughter in order to marry their daughter, because Fatima is a part of my body, and I hate what she hates to see, and what hurts her, hurts me."'''}} | ||
Under the Hanbali school alone, women may stipulate conditions in the marriage contract to have the marriage dissolved if her husband takes an additional wife.<ref>John L. Eposito, "Women in Muslim Family Law", Second edition, 2001, p. 22</ref> Such a stipulation is unenforcable according to the Hanafi, Shafi'i, and Maliki schools on the basis that it cannot overide his Quranic rights.<ref>Kecia Ali, ''Marriage and Slavery in early Islam'', Harvard University Pross, 2010, p. 74 and ftn. 31 on p. 220</ref> All schools agree though that he may delegate to his wife his powerful, Quranic ''talaq'' (divorce) rights at any time. This is called ''talaq al-tafwid'', and can be conditional such as in the event that he takes another wife (the Shafi'i and Hanbali schools allow him to later revoke this delegation).<ref>Muhammad Ifzal Mehmood (2019) ''[https://www.researchgate.net/publication/338688656_A_Study_of_Talaq_Al-Tafwid_in_Islamic_Law_and_Contemporary_Legislations_Should_Malaysia_Follow_Suit A Study of Talaq Al-Tafwid in Islamic Law and Contemporary Legislations: Should Malaysia Follow Suit?]'', Bahria University</ref> In most cases such a stipulation or delegation will not have been agreed ahead of the marriage, though an increasing number of countries in the Muslim world have made reforms to family law to limit polygamy or provide other legal routes for the first wife to seek divorce. Otherwise the husband's rights are automatic. | |||
{{Quote|John L. Eposito, "Women in Muslim Family Law", 2001, p. 22|One important right granted by the Hanbali (but not Hanafi) law school that gives women a certain amount of independence and status in marriage is her right to insert conditions that are favourable to her directly into the marriage contract. The wife's ability to make conditions, provided that they are not contrary to the object of marriage, can resolve many inequities in areas such as polygamy and divorce. For example, clauses may be added that eliminate the husband's right to take a second wife or that grant the wife greater freedom of movement. These conditions limit the husband's somewhat automatic and extensive legal control over his wife. Because these conditions can be enforced by granting the wife her husband's power of divorce if they are violated, they bestow more equal rights of divorce on the wife.}} | |||
====Autonomy of virgins vs. non-virgins==== | ====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.{{Quote|{{Muwatta|28|2|4}}|Malik related to me from Abdullah ibn al-Fadl from Nafi ibn Jubayr ibn Mutim from Abdullah ibn Abbas that the Messenger of Allah, may Allah bless him and grant him peace, said, "A woman who has been previously married is more entitled to her person than her guardian, and a virgin must be asked for her consent for herself, and her consent is her silence "}} | 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.{{Quote|{{Muwatta|28|2|4}}|Malik related to me from Abdullah ibn al-Fadl from Nafi ibn Jubayr ibn Mutim from Abdullah ibn Abbas that the Messenger of Allah, may Allah bless him and grant him peace, said, "A woman who has been previously married is more entitled to her person than her guardian, and a virgin must be asked for her consent for herself, and her consent is her silence "}} | ||
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{{Quote|John L. Eposito, "Women in Muslim Family Law", 2001, p. 26|In classical Hanafi law, the wife is put at a further disadvantage economically by the fact that neither inability nor refusal to maintain is considered sufficient grounds for dissolution of a marriage. This is contrary to the principles of both the Malaki and Shafii schools. The hardships resulting from the traditional Hanafi position are numerous.}} | {{Quote|John L. Eposito, "Women in Muslim Family Law", 2001, p. 26|In classical Hanafi law, the wife is put at a further disadvantage economically by the fact that neither inability nor refusal to maintain is considered sufficient grounds for dissolution of a marriage. This is contrary to the principles of both the Malaki and Shafii schools. The hardships resulting from the traditional Hanafi position are numerous.}} | ||
==Divorce== | ==Divorce== | ||
===Requirements for 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 | Whereas a husband has the Quranic right to divorce his wife by pronouncing ''talaq'', the situation is more difficult for a wife. 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 dissolution (faskh) of the marriage 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).{{Quote|{{Quran-range|2|228|229}}|Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah Hath created in their wombs…. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them if any do transgress the limits ordained by Allah, such persons wrong (Themselves as well as others).}} | ||
{{Quote|{{Quran|4|128}}|If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though men's souls are swayed by greed.}} | {{Quote|{{Quran|4|128}}|If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though men's souls are swayed by greed.}} | ||