Women's Rights in Islamic Marriage
1. Introduction
Despite the predominant idea in the Western countries that Muslim women do not, or hardly, have basic human rights, in practice, but especially on theological basis, Muslim women actually do have more rights than their Western counterparts. To address all aspects of women's rights in Islam requires more space than a single essay; therefore I discuss only a part of the range of rights.
More intensely than many other societies, Muslim communities tend to divide the world into private (women's) and public (men's) spheres (Hassan), the public-private dichotomy, "which was never part of the Qur'anic world view but entirely cultural" argues Abou-Bakr (1999). This does not mean that one should adhere to the idea of cultural relativism to justify infringements on human rights in the 'Islamic culture' (Mayer, 1995: 8-9), but that there are general human rights that can be devised, being it universal 'man-made' rights as Mayer argues, or Divine rights1.
Nevertheless, the private sphere is very important in a Muslim woman's life, plus the assertion it being 'cultural' (read: societal, therefore changeable) as opposed to some pre-determined, God-given and/or natural order of things, I take a closer look its primary building block: marriage. After discussing the background in pre-Islamic times, I will outline the process of establishing the contract, polygamy and divorce (chapter 2), and how this can, or even does, influence conflict and peace in the larger community (chapter 3).
2. Marriage
First and foremost, there is no one single interpretation or implementation of 'the' Islamic marriage, although there is Shari'a law used in Islamic countries to a greater or lesser extend. To be able to put the various rules and regulations concerning marriage in context, knowledge of societies in the pre-Islam period, known as Jahiliya (a state of barbarism and ignorance), is useful because the Divine words and explanatory hadiths written during and after the life of Mohammed was an attempt to improve the then prevalent situation. You are led to believe that before the revelations, chaos existed, with widespread female infanticide and women having no status at all and not taken care of:
"Reflecting the culture of the seventh- and eight-century Arab world, the saying voice the cumulative biases, against women, of the Jewish, Christian, Hellenistic and pre-islamic Bedouin Arab traditions" (Hassan)2
And:
"Women ... were in subjugation either to their kinsmen or their husbands. They were considered a chattel to be possessed, to be bought, to be sold or to be inherited ... women were considered a liability to their own tribes ... Such a deplorable situation illustrated that the rights and the liberties of women in those ancient societies were not only trampled upon, but were entirely denied to them." (Jawad, 1998:1-4)
However, Mernissi (1994:67) points out that this is only part of the whole story, claiming it to be selective memory to suit the decisions made in Islam with regards to the gender dynamics. After all, the Prophet's first wife Khadija was a rich businesswoman. Stern (in Mernissi, 1994:72)3 points out the matri-local character of pre-Islamitic marriages, and Mernissi herself notes the story of the Whores of Hadramaut (1994:76-79)4.
Notwithstanding the different ideas of the pre-Islamic period, the overall result was that during the Mohammed's life the rights of women improved, but gradually faded away after his death. The pre-Islamic patriarchal ideologies, combined with the lack of education and ignorance returned (as the rapid expansion of Islam didn't leave the new converts enough time to obtain sufficient Islamic education) (Shorish-Shamley).
2.1 Marriage contract
Although I've read through many positive notions of what an Islamic marriage is supposed to be about ("catalyst for the development of their souls" (Jawad, 1998:31), "foster tranquility, love and compassion" (Anon 3, 1999)), practice can be quite different. First, rules and regulations as laid down in Islam in order to achieve a relatively stable and durable marriage bond. According to Jawad (1998:32-40) they are the following:
The couple have to be of proper marriageable age and there should be no discrepancy between their ages;
There should be a degree of compatibility between the two partners in terms of social status, educational standards and physical attraction;
The dowry (mahr) of the bride should be of a reasonable level;
The mutual consent of the couple is crucial for the stability and durability of the marriage, force or blackmail would automatically render the contract invalid;
The prospective partners have to be pious and of good moral conduct;
The marriage contract should be free of any hidden agenda such as casual or temporary unions
Overall, marriage in Islam requires a contract between equal partners, but the bride has the exclusive right to stipulate her own conditions in the contract. Conditions may include aspects of marriage (like monogamy) and divorce terms (e.g. if she wants to have the right to dissolve the contract). The husband has to meet his legal responsibility to provide full maintenance of the wife; in turn, the wife should ensure that the duties as wife and mother are performed to the best of her abilities. Second, the not-so-positive reality. Surah 2 Verse 228 of the Qur'an states a rather disputable sentence:
"And woman shall have rights similar to rights them, according to what is equitable. But men have a degree of advantage over them." (emphasis added)
Surah 4:34 continues:
"Men have authority over women because Allah has made the one superior to the other."
Some see it as a degree in intelligence, other view it as a degree in superiority. However, many Muslim scholars argue that the degree is related to maintenance of the family: a man is legally obligated for this responsibility. Therefore, this "degree above them" has an economic base and has nothing to do with intelligence or superiority of men over women. (Shorish-Shamley). A moderate interpretation of the verse 4:34 is, that the man should be seen as the chair-person (Jawad, 1998:37) or leader (El-Haggan, 1998) instead of absolute superiority on all matters. Many girls are married off when they are still minors, which gives special importance to the right to move freely and to emigrate from oppressive conditions (Hassan). On the other hand, Muslim Family Law Ordinance in Pakistan has banned child marriage and set a minimum age for the marriage of boys to 18 years and girls 14 (Ahmed), which is, arguably, still the age of a child. Other noted problems are forced marriages and the husband prohibiting the wife free movement in the public sphere, even when a woman wants to go to the mosque, thereby
"The husband, in fact, is regarded as his wife's gateway to heaven or hell and the arbiter of her final destiny." (Hassan)
2.2 Polygamy
Strictly in dictionary terms, polygamy means a marriage with more than one spouse, where the term polygyny refers to a husband with more than one wife and polyandry to a wife with more than one husband. That in everyday terms polygamy is used to refer to a situation that is actually described by polygyny tells us more about our (English-speaking Western) culture than what polygyny in Islam is about5 . What does the Qur'an say about polygyny? A few verses are widely cited to prove legitimacy of tolerating (thus not advocating) polygyny:
"...marry women of your choice, two, or three, or four; but if ye fear that ye shall not be able to deal justly (with them), then only one." (4:3)6 .
This verse came about after the war of Uhud, where many Muslim men died, thereby leaving behind widows and orphans. In a situation where there is no such thing as a developed welfare state redistributing tax money to mothers on social security and orphanage allowances, it allowed men to marry more than one woman, thereby providing her and her offspring a stable and secure environment where they wouldn't have to endure the (economic) hardship of surviving alone. Naik continues to justify this for 21st century: because the average life span of females is more than males, the world female population is larger than of males and therefore
"the only two options before a woman who cannot find a husband is to marry a married man or to become public property. Islam prefers giving women the honourable position by permitting the first option and disallowing the second."
In addition, Mababaya argues the plural marriages of the Prophet as the main guideline, but Jawad (1998:47-48) mentions only three exceptional circumstances where polygyny is permitted according to the Qur'an: the desire of a man to have children of his own (if the wife is unable to bear him children), if his wife is critically ill and therefore she is be unable to perform her duties as a wife and the social necessity as outlined in the previous alinea.
On the contrary, verses explaining The Creation mentions one man and one woman created out of one cell, not Adam and a team of women at his service (Patootie). The most cited counter-argument, though, is Surah Nisa verse 129 (4:129):
"Ye are never able to be fair and just as between women...."
indicating polygyny is an exception and not the rule. Though a more rigorous explanation, noting the moral and religious limitation on polygyny, is:
"... treating ones wives justly is a sine qua non for the practice of polygamy and since ... a man will not be able to attain justice no matter how hard he tries, polygamy in the end is unlawful or forbidden" (Jawad, 1998:45)
But it is argued that treating wives 'justly' is incorporated into given rules, where the husband must spend his nights with one of his wives not by preference, but on a rotational basis, allowing the women 'equal access' to the husband (Mernissi, 1994:137-138), lowering the possibility of emotional attachment and fostering the degrading idea of exchangeability of the wives.
Given the different interpretations of the verses and variations in societal structures in Islamic countries, the ruling with regards to allowing polygyny is diverse. Turkey (on paper a secular state) and Tunisia have banned polygyny altogether under Muslim Family Law, Pakistani men need to have permission from the Arbitration Council before engaging in a second marriage (Ahmed), Syria and Iraq require authorization of the Judge and in Egypt the wife has to give permission first (Jawad, 1998:46). The actual procedure by the Arbitration Council or the Judge and how permission by the woman is granted is another matter.
2.3 Divorce
In contrast with Christianity, Islam does acknowledge the dissolution of marriage: although marriage is considered a life-long commitment, a situation may arise where marriage cease to fulfill its purpose. In such a situation when all else fails, dissolution (in English the word divorce is more commonly used) may be initiated by either side or both the husband and wife (Jawad, 1998:73).
Before the marriage is dissolved, God encourages the husband and wife to appoint two arbitrators from each side as the first step to aid in reconciliation trying to prevent the process of divorce (Anon 3, 1999). Reasons for setting this process in motion can be their 'incompatibility', an impotent husband, one or both spouses suffer form a serious disease, or when the husband is put into prison for a long time. Then, dissolution can be initiated by the husband (talaq) or wife (khula, if the husband is not at fault). The man can do this verbally (see Verse 2:229, cited in Jawad, 1998:78) or in writing. Once done, there is a three-month waiting period () in whic'iddath there are no sexual relations between the two. This helps prevent hasty decisions made in anger and enables both parties to reconsider as well as determine if the wife is pregnant. If the wife is pregnant, the waiting period is lengthened until she delivers. At any point during this time, the husband and wife are free to resume their relationship, thereby stopping the divorce process. (Anon 3, 1999). If the divorce statement is called upon for a third time, the dissolution is irreversible (Jawad, 1999:78), but the woman is allowed to keep her dowry (Anon 3). However, a woman seeking divorce via khula, may lose financial support and will lose her dowry. Besides that, khula is hardly used these days and Jawad suggests that many women may not even be aware of this possibility (1999:79). Last, when both parties agree to separate through mutual consent, no exchange or payment is made by either side7.
Back to reality. Despite women having the right under 'true' Qur'anic interpretation to dissolve marriage, men seem to have absolute power on the dissolution, mainly backed up by referring to Verse 2:228 and using 4:34 in the same breath (see �2.1), which can be interpreted in different ways. Most women are hardly allowed to exercise their right to divorce because of the tremendous social and mental pressures to which they are subjected (Hassan; Jawad, 1998:82). Further, to discourage women to initiate or agree with the above-mentioned idea of a no-fault divorce, they are normally denied custody of their children (Hassan). Moreover, one needs to take into account that the majority of Muslim women have had minimal, or no, education and no job, together with minimal social security (compared to European states) resulting in relatively more economic hardship.
3. Marriage in Islam: conflict or peace?
Mernissi (1994:126-131) discusses marriage as a conflict: conflict as part of being human, of sexuality and segregation between men and women, but most of all the inequalities between husband and wife in marriage. Article 36 of the Moroccan Code lists rights a husband has towards his wife, but he has no moral duties to fulfill. She adds Imam Ghazali's opinion that marriage for a woman equals slavery. The patriarchal system, sub-optimal establishment of the marriage contract, arguable degrading situation of polygyny and the practical restrictions for women on divorce is a reality, but the Qur'an views the marriage of a man and a woman as sharing of the two halves of society:
"Among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts): Verily in that are Signs for those who reflect" (30:21)
The objectives of marriage, aside from human reproduction, are love, mercy, mutual respect, justice, emotional well-being and spiritual harmony (Shorish-Shamley). Notwithstanding mentioned societal reality, the Qur'anic decrees
"No one but God can limit human freedom" (Surah 42:Ash-Shura:21)
"Judgment is Allah's alone" (Surah 12:Yusuf:40)
are interpreted in this context as:
"Without justice -- between men and women, as between classes and between nations -- there can be no peace in the world." (Hassan)
The roles of both the husband and wife (/wives) are equally essential for the successful working of family life, as it is considered the fundamental and primary root of human civilization (Ali). As the Qur'an considers the home as a microcosm of the umma, it is not possible to talk about peace in Qur'anic terms without the elimination of the inequities, inequalities, and injustices that pervade the personal and collective lives of human beings.
"If human beings can learn to order their homes justly so that the human rights of all within its jurisdiction - children, women, and men - are safeguarded, then they can also order their society and the world at large, justly." (Hassan)
There is a long way to go.
4. Conclusions
Purely looking at the Qur'anic verses, the potential is there for Muslims to achieve peace and harmony within marriage between man and woman, based on mutual respect, equality, love and understanding. The truth is, real-life in Islamic countries is far from the Qur'anic ideal, as is the case with most ideologies. Muslim women are often oppressed and denied their Divine Rights, even treated as an object instead of a full human being8. Although there are variations in the implementation of Islamic Family Law between Islamic countries and in recent times they are given more rights, it probably will take several generations more to shake off the negative aspects of the (remnants of the pre-Islamic) patriarchal society with regards to establishing marriage, the contract itself, polygyny and the exercise of the women's rights of marriage dissolution. When Muslim women, and men, are educated about the 'true' interpretations and meanings of the Verses in the Qur'an, Islamic marriage may indeed be the important building block towards a just and peaceful society Islamic theologians claim it to be.
Source:
www.meteck.org
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