PrintAugust 16, 2008
The Sham of Women's Rights Under the Shari'a
The United Kingdom is on taking a first step toward a parallel legal system for Muslims, and garnering applause for it.
Both the Guardian and the Telegraph have recently lauded a new Muslim marriage contract drawn up by a group of British Muslim organizations as a breakthrough in Muslim women's rights in the UK. Urmee Khan of the Telegraph announced with unabashed aplomb: "Hailed as the biggest change in Sharia law in Britain for 100 years, a married Muslim couple will now have equal rights." And the Guardian's Samia Rahman claimed that "A new Islamic marriage contract sets aside cultural practices, giving women the rights they are due under sharia law".
But if this new marriage contract was required to give Muslim women equal rights, how can these rights have already been enshrined in the shari'a? There are two important claims to distinguish here: that the shari'a gives women equal rights in marriage and divorce matters, and that this new contract is consistent with the shari'a in giving women these rights. But how valid are these bold assertions?
For Khan, equal rights include a requirement that the man drops his right to polygamy, since in Islamic law a man can have up to four wives. But, strictly speaking, the Muslim man is not dropping his right under Islamic law to have four wives. He is just acknowledging that under British law polygamy is not allowed. The marriage contract states:
The husband is not to enter into formal or informal nikah (Muslim marriage) contract in the UK or abroad with another woman, as it is unlawful under the laws of England and Wales as well as the Scottish legal system (emphasis added).
So this is not changing Islamic law, the shari'a. The shari'a cannot be changed so easily, since it is conceived by pious Muslims as the law of Allah, infallible and immutable. The man's right to four wives is, after all, based upon the Qur'an.
Khan also states that the contract "makes delegation of the right of divorce to the wife (talaq-i-tafweeed) automatic". Rahman concurs, claiming "it ensures that the right to divorce (talaq-i-tafweed), is automatically delegated to the wife, something that is practised [sic] in most Muslim countries". The very notion of a delegation to the woman of a right to divorce belies the reality that the right of divorce under the shari'a is a right enjoyed by men only. But more importantly, the contract does not say delegation is automatic.
The marriage contract identifies as a "special condition":
The husband delegates his power of divorce (talaq al-tafwid) to his wife.
But it also says:
Talaq-e-tafwid is [sic] delegated right to divorce given by [sic] husband to his wife. If and when the wife exercises this delegated right she does not lose her Mahr amount [i.e. her payment for marriage] (emphasis added).
Thus women are not automatically guaranteed the right to divorce. Men have not automatically given women this right. The husband chooses whether or not to, and there is nothing binding on him in the contract to do so. The marriage contract in effect gives the man the option to allow the woman to initiate the divorce proceedings, as consistent with the ‘Umdat al-Salik, a manual of shari'a law authorized by the highest learning authority in Islam, al-Azhar University in Cairo.
In this hefty tome the man has automatic rights to divorce without requiring the woman's consent. He can just utter the words "I divorce you" -- or even just allude to it -- and the deed is done. But there is no provision for the woman to initiate divorce. A wife needs the agreement of her husband, and needs to pay him a release fee, called a khul'.
The ‘Umdat al-Salik, as a manual of Islamic law, is based upon the Qur'an, believed to be the literal word of Allah directly revealed to Muhammad, and the Sunna, the words and deeds of Muhammad as recorded by pious biographers and transmitters. The Qur'an and the Sunna are both considered indispensable for the codification of the shari'a. This is recognized by the Islamic Shari'a Council, one of the leading advocacy organizations for the new Muslim marriage contract, which says
"All Sharia matters are referred back to the Qur'an and Sunnah which are the overriding authority on any individual or any faction's opinion".
Also lauded in the Muslim marriage contract is the entitlement of the wife to be repaid the value of the mahr[i] (the payment a man must make to marry her) if she is divorced at the instigation of the husband. But according to the ‘Umdat al-Salik, as authorized by the highest legal authority in Islam, The husband has no legal obligation to pay his wife the entire value of the mahr if he initiates the divorce. He is only required to maintain her until her idda (a waiting period of three menstrual cycles to ensure she is not pregnant) is over.
In fact, the ‘Umdat al-Salik states that "If the couple is separated ... because of an act on the husband's part ... then she receives only half of the marriage payment"[ii] (emphasis added). This might be taken to mean that the marriage contract is an improvement on the shari'a (of half the value of the mahr), though it is more accurate to say that this marriage contract is not really shari'a "compliant" at all, since the shar'ia does not compromise on the rights of men and women.
Some Muslim women are compelled under cultural and family pressures to go through the process of a non-legally-binding Muslim marriage in the UK. For these women, the right to receive the mahr in the case that the husband wishes for a divorce may be a welcome development. But this lacks a basis in the shari'a and is likely to be picked up by the male-dominated shari'a "councils" who arbitrate on Muslim divorces. The lack of a basis within Islamic law is likely to be used to justify the continued unequal treatment of women by "judges" in shari'a councils, which in any case have no obligation under British law to follow the guidelines of the marriage contract or the rulings of the Islamic Shari'a Council.
This was in effect acknowledged by one of the authors of the contract, Dr Ghayasuddin Siddiqui, who told the Telegraph that the contract "is a challenge to various sharia councils who don't believe in gender equality". Shari'a councils don't believe in gender equality since sexism is inherent to Islamic law, and its sources, the Qur'an and Sunna[iii].
Siddiqui, also Director of the Muslim Institute, said "the world has changed and Islamic law has to be renegotiated" but he would know, of all people, that Islamic law cannot be "renegotiated" since within Islamic legal doctrine only Allah can dictate the law of the land and Allah's final message as a complete and perfect body of work to guide all mankind was given to Mohammad and subsequently coded into the shari'a. According to Islamic doctrine, Allah does not renegotiate. Consistent with centuries of scholarly consensus, the legal tenets of the shari'a have now become more or less fixed.
It is important to know this in order to combat the false information being published in the mainstream media about how progressive Islam is for women. It is not. Grounded in the Qura'n itself and supported by the Sunna, women have half the inheritance rights as men[iv], have half the value of testimony[v], are not allowed to leave the house unattended[vi] and are to fulfill a man's sexual needs on demand[vii].
It is particularly noteworthy that there is nothing in the marriage contract contravening the woman's role to sexually gratify the man. Even the good things in the contract, like the mutual respect for each others' property, are nothing "revolutionary" unless we acknowledge the problem within Islamic culture based upon the shari'a and make explicit reference to it in trying to combat practices which follow the inherent misogyny it contains within its immutable tenets.
Claiming that the shari'a is actually good for women is both false and dangerous. A better strategy than allowing pockets of shari'a to grow within the UK's legal system would be to make better effort in mainstreaming Muslim "culture" -- for example the required giving of the marriage payment (the mahr) to the bride-to-be -- within British law, not vice versa. It would also need to provide better outreach, counseling, social and legal support for Muslim women. The arm of British law needs to reach out to the Muslim population, not retract itself and allow misogynistic laws masquerading as "culture" run riot unimpeded.
Khan and Rahman's ignorance or dishonesty is dangerous for Muslim women since it is they that will be the first to suffer if shari'a really becomes a legal substitute for civil law in the UK in resolving marriage and marriage-related issues, such as divorce, custody, and inheritance. The existence of this marriage contract is a first step for shari'a to get its ugly foothold within the UK. If this contract becomes recognized into British law, and shari'a councils are bestowed with legal powers in enforcing it, an idea that Archbishop Rowan Williams and Lord Chief Justice Lord Phillips would probably embrace warmly, the next step will be for Muslims to push for a reform of these nominally "Islamic laws" towards a more accurate reflection of the shari'a once it is already embedded within our legal system.
This would constitute a slippery slope to parallel legal systems and an inevitable clash of legal and political cultures. Indeed, as David J. Rusin has written this will only serve to "embolden radicals and marginalize moderates". It will also lead to further ghettoization of Muslim communities and intensify a growing detachment of British Muslims from the country's common law-based culture and political processes.
What is needed is not the introduction of the shari'a, even a watered down version, into British law, but, if anything, a strengthening of British law to protect women regardless of their religion, and reinvigorated advocacy for the values which underpin it.
A first step would be for the British Government to understand what the shar'ia is through an unapologetic, undelegated and rigorous study into its doctrinal sources and tenets. Its informal implementation in the UK below the radar of the British legal system and the impact on Muslim women also needs to be assessed if we are to get a glimpse of what formal adoption of the shari'a would look like, and to ensure that their interests as women are sufficiently met by British law.
[i] The mahr, what the Islamic Shari'a Council misleadingly calls "dowry", is defined in the ‘Umdat al-Salik as the "money or property a husband must pay a woman to marry her [i.e. his wife-to-be]" (m8.0, p.533).
Men are in charge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women).
This has been taken seriously by Muslim scholars throughout the centuries. Al-Tabari, the great Muslim historian, explains:
By this God (may He be highly praised) means that men are in charge of their women in chastising and restraining them regarding their obligations for God and themselves.... Ibn Abbas narrated that he said, [Men] are commanders and [the woman] has to obey him in all that God commands her to obey him. Obedience to man is being good to his family.
(Muhammad Ibn Jarir al-Tabari, Jami` al-bayan `an ta'wil al-Qur'an, ed. Mahmud Muhammad Shakir (Cairo, 1968), 5:57-8.)
Allah (thus) directs you as regards your Children's (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half ... These are settled portions ordained by Allah [i.e. unchangeable]; and Allah is All-knowing, Al-wise. (emphasis added).
This is supported by numerous Islamic scholars. From the renowned Islamic historian al-Tabari (d. 923 CE):
Ibn Abbas [Islamic scholar and jurist, d.796] narrated: "Both possessions and will belonged to the parents and the next of kin. God abrogated of this what He wished, and gave the male a double portion of the female. (emphasis added)
...get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her.
And from the most venerated hadith collection, that of Bukhari, the reason why two female witnesses are required in the stead of one man:
Volume 3, Book 48, Number 826:
Narrated Abu Said Al-Khudri: The Prophet said, "Isn't the witness of a woman equal to half of that of a man?" The women said, "Yes." He said, "This is because of the deficiency of a woman's mind."
Permitting One's Wife to Leave the Housem10.3 (A [commentary by Sheikh Abd al-Wakil Durubi]: A husband may permit his wife to leave the house for a lesson in Sacred law, for invocation of Allah (dhikr), to see her female friends, or to go to any place in town. A woman may not leave the city without her husband or a member of her unmarriageable kin (def: m6.2) accompanying her, unless the journey is obligatory, like the hajj. It is unlawful for her to travel otherwise, and unlawful for her husband to allow her to.) ...m10.4 The husband may forbid his wife to leave the home. (O: because of the hadith related by Bayhaqi that the Prophet (Allah bless him and give him peace) said,"It is not permissible for a woman who believes in Allah and the Last Day to allow someone into her husband's house if he is opposed, or to go out if he is averse").But if one of her relatives dies, it is preferable to let her leave to visit them.
[vii] If the man's right to sex seems like an exaggeration, check the al-Azhar-authorised ‘Umdat al-Salik:
The Wife's Marital Obligationsm5.1 It is obligatory for a woman to let her husband have sex with her immediately when:(a) he asks her;(b) at home (O [commentary from Sheikh ‘Umar Barakat, d. 1890 CE]:meaning the place in which he is currently staying, even if being lent to him or rented);(c) and she can physically endure it.(d) (O: Another condition that should be added is that her marriage payment (mahr, def m.8) has been received or deferred to a term not yet expired....The Husband's Rights
m5.4 A husband possesses full right to enjoy his wife's person ... in what does not physically harm her. He is [also] entitled to take her with him when he travels.
This is based on the Qur'an, verse 2:223, which, for Muslim jurists and scholars, means that women's bodies are to be used by their husbands as their husbands seem fit:
Your wives are as a tilth [field] unto you; so approach your tilth when or how ye will; but do some good act for your souls beforehand; and fear Allah. And know that ye are to meet Him (in the Hereafter), and give (these) good tidings to those who believe. (emphasis added)
