Assalamu Alaikum

I believe most of you enjoyed reading the first part of SHARIA LAW AND WOMEN’S RIGHT especially the women. From the messages I’m receiving in my inbox, it seems most you learnt a lot and I’m Glad for that- while others were discouraged by the length of the Article but can read a whole magazine about Kim Kardashian and still want more… Well, I hope you read this final part. If you can’t, then the least you can do is to share so friends and family benefit from the knowledge.

Saleh writes; Continuation of Sharia law and women’s right…part 1

Among the countries applying Islamic Law, different procedural obligations are imposed. In Iraq for example, the permission of a judge has to be sought prior to taking a second wife. In Jordan, the only restriction to polygamy would be for a woman to include a condition in the marriage contract. A Muslim woman has the right to lay down certain conditions in the Taqliq or prenuptial agreement before signing the marriage certificate, in order to safeguard her welfare and rights. Examples of these conditions vary. Under Jordanian law, a prospective wife can restrict her husband from having another wife, and in case the husband fails to meet the condition, the woman is granted divorce. And like any other contract, a marriage contract can only be concluded through the two essentials or pillars (Ar’kan) of offer and acceptance by the two principals or their proxies. And concerning the marriage contract, jurists agree that it should have immediate effect, and shall not be suspended or deferred to the future. In addition, the woman has the possibility to add conditions to the marriage contract.

To summarize, the issue of polygamy is not as clear- cut as it may seem. From a practical standpoint, Qur’ānic verses if deeply pondered over, do not support the concept of polygamy.

In dealing with the issue of divorce, it is worth stating that there is an erroneous belief, that the right to divorce vests in the husband, but it may be “transferred” to the wife in certain instances. In response to this argument, Qur’ān Chapter 2:228 stipulates that

{And women shall have rights similar to the rights against them, according to what is equitable}.

In application, Goolam mentions Khul’ and Ibn Rusd’s philosophy of it. Khul’ is provided for the woman, in opposition to the right of divorce vested in the man. Thus if trouble arises from the side of the woman, the man is given the power to divorce her, and when injury is received from the man’s side, the woman is given the right to obtain Khul’.

Nonetheless, in the application of Khul’, women lose their financial and property rights. And the only possibility of them getting a divorce on equal grounds with men is for them to seek judicial interference. It is also important to add, that Khul’ is not the only means by which a woman can dissolve the marriage contract. As Mashhour noted, there are other ways of doing it; delegated Talaq orTalaq Tafwid means, a wife has the right to divorce if only the husband has delegated this right to her. This right enables her to end the marriage contract at her will. The other forms of divorce, that a woman can initiate are the divorce by judicial interference or divorce when the husband violates a condition stipulated in the marriage contract.

It is possible to argue, from a practical perspective that the rights of women to divorce always encounter some social and administrative obstacles. For example, in the case of the judicial interference, the bureaucratic system might harm her. And husbands rarely delegate the right to divorce to their wives due to cultural stereotypes.

Nevertheless, the point highlighted above is that, from a legal perspective, Islamic Law does not prevent women from exercising the right of divorce. Violations however, stems from the patriarchal system and the stringent social and cultural practices that are yet to be overcome.

Another delicate issue in relation to the rights of women in Islamic Law is property ownership and inheritance. Inheritance matters are specific under Islamic Law; and Qur’ān Chapter 4:11 stipulates, that

{concerning (the inheritance of) your children, God enjoins (this) upon you: The male shall have the equal of two females share; but if there are more than two females, they shall have two-thirds of what (their parents) leave behind; and if there is only one, she shall have one-half thereof}.

We need to offer an extensive analysis on inheritance laws under Shari’a. I mean the importance of taking the Maqasid or the intent of the law into consideration in understanding the above verse”. The ultimate intent of the law is to promote and protect the Maslaha or the well-being of humanity. The author argued that this verse has been abused by the Islamic Society to prove men’s superiority. Yet there seems to be a strong case for the proposition that the underlying rational, the ‘illa, of a two to one ration in estate distribution when male agnates and specialized female agnates inherit together, is that the males have the great financial responsibilities towards she specialized female agnates with whom they inherit, and towards the family in general.

May be we have to moot a germane question to the effect, that with the present social changes reforming the family and the role of women in the society, how would the law change to meet the needs of the two sexes. Before interpreting the Qur’anic verses which can be very controversial, one should use the mechanisms within Islamic Law that can ensure some level of fairness. Examples are the inter vivo gift or Hiba, which gives a great freedom in the transfer of property between kin or use a general Islamic principle (which consists in validating) that property owners may freely dispose of their property inter vivo. In other words, with the consent of a brother, his sister can inherit as much as he does.

In short, inheritance laws, although specific in the Qur’ān are flexible in adapting to the demands of a modern society. It would only require states to recognize the other mechanisms found within Islamic Jurisprudence to treat men and women equally in matters of property and succession.

In a nutshell, it is clear from these analyses, that the Islamic Law has actually defended the rights and liberties of women, and has put them on equal level with men in all spheres of life. The problem has been the infusion of culture and custom in making legal issues, so much so that, all those cultural practices have become part and parcel of Islamic jurisprudence. There is therefore the need for us to embark on virulent campaign that will lead to constructive reforms.

Another major cause of these affront violation of women’s right is the numerous purported sayings of the Prophet (Hadith) that were fabricated immediately after His death purposely to revert to the Male-Dominated-Society (MDC) that the Prophet came to preach against. For the negative treatment meted out to women in the pre-Islamic Arabia was iniquitous and a little bit short of divine inspiration. This was one of the reasons why the period was described by the Qur’ān as an “era of ignorance” (al-‘Asr al-Jāhiliyya).

But habit, they say dies hard. So no sooner had the Prophet passed away than many Arabs made a U-turn towards their nefarious acts against women. Coincidentally, this was the exact time the first Caliph, Abubakar as-Siddiq (d. 13/634) was vociferously calling on Muslims to hold on to the Qur’ān and Sunna.

Whiles he was championing this course, the “traditionalists” were busily and ingeniously spreading faked “hadith” either to paint a gloomy picture on the religion, or most probably to hanker for the social strata of women before Islam. The result of this synergy is the importation and infusion of “contrabands” into Islam. Unfortunately, most of these “hadiths”” have found its way into the two SAHIHAIN which have been ““canonized” in many Islamic societies.

For lack of space, I intend to mention only two of these fabricated “hadiths” that have (and continue) to be used to enslave women and infringe on their rights with impunity. And there is hardly any marriage ceremony in Ghana that these two fabricated “hadiths” are not quoted and pawned off. Both “hadiths” were narrated by Abu Huraira. And this is not in any way to despise him, or cast doubt on all his narrations.

According to him, Allah’s Apostle (PBUH) said: If a man approaches his wife in bed (i.e. for sexual purposes) and she refuses to give in to him, the Angels will keep cursing her for as long as the man is upset with her (Sahih al-Bukhari, Vol. 4, Book 54, P.460). In the other narration, the Prophet (PBUH) was quoted as saying, by Him (i.e. God) in whose hands is my life: When a man calls his wife to his bed and she declines, the one in heaven (i.e. God) is displeased with her until he (i.e. the husband) is pleased with her (Sahih al-Muslim, Book 8, P.367).

As I said earlier, these two related “hadiths” and similar others are commonly and daily used in Islamic communities in Ghana. It is this growing megalomaniac and imperious behavior of man that needs to be checked and fulminated at. Our Prophet Muhammad could never have issued these statements. What a bizarre! Oh my God!

What is special about the male sexual libido that the whole heaven could be destabilized if it is not satisfied? Why should God and His angels remain sad all night because one man is on heat and the wife is not responding to him? Why are God and His angels not behaving like this when the woman needs her husband in bed and the man turns her down? Or it is no truer that

{indeed God loves those who are fair (in their dealings)}. Qur’ān 5:42.

And are these Islamic scholars ignorant of the natural disposition of a woman whose body and mind cannot respond to romantic language as long as she feels “offended” by the husband?

These “hadiths” are indeed contrabands that can never be the words of Prophet Muhammad who is known to have been a women’s right “activist”. And in His activism, the Prophet was quoted to have postulated, that “seeking knowledge is compulsory to the Muslim man and woman”. Also when he was asked by a man about which of his parents he should care more for, the Prophet answered; “your mother, your mother, your mother, and your father on the fourth occasion”. Of course this was not to belittle fathers and their domestic and social status, rather the intension was/is to reaffirm the venerated position of women.

On another instance when someone asked Him about the location of heaven, the Prophet is noted to have suggested to him “to search for it beneath his mother’s feet”.

In Arabic language, like many other languages, a masculine object in the midst of thousands of feminine objects makes the sentence masculine. But the Prophet is noted to have been going against this rubric of “language bias”, all in His strenuous effort to ensure the welfare of women.

And peace be upon Jesus who remarked, that one distinguished character of all the Prophets of God is the special attention they accorded women.

 

Saleh Muhammad Salis

Graduate Student