In the nineteenth century, the central moral challenge was slavery. In the twentieth century, it was the battle against totalitarianism. We believe that in this century the paramount moral challenge will be the struggle for gender equality around the world.’ (Nicholas D Kristof) . This quotation is at the heart of attempts to decipher whether Islamic family law and gender equality are compatible concepts as gender equality is a modern, international ideal that has transpired as a consequence of the development of human rights and feminist dialogue and discussion. The media attention and international political pressure has led to a furore regarding Islamic family law as its theory and application is not congruent with universal perceptions of justice. Islamic family law presupposes that authority in the household is the intrinsic privilege of the man and the notions of gender equality are only very loosely intertwined with justice, as evidenced by the concepts of ‘wilaya’ and ‘qiwama’, which put gender equality at the back of any theological importance and court application. This paper will explore the idea of Wilaya as a backdrop of the perceived rights of the man and explain the gender discrepancies in terms of the concept of consent in marriage using a case involving the Lahore High Court in Pakistan where the personality and status of a Muslim woman is explored and scrutinised in terms of its inextricable link with the theme of gender equality. I will explore the debate over marriage contracts and I will also examine the underlying rules on divorce that are inharmonious with contemporary perceptions of equality at best, and at worst, misogynistic. The order that I have chosen is significant as it represents the theory behind the rules on Islamic law first, followed by a discussion of the evident gender inequality in its application and allows me to establish that the theoretical set up of Islamic family law is not entirely incompatible with gender equality but because of internalised cultural notions, selective use of Hadith and linguistic selectivity its practical application means that, unless it is reformed, Islamic family law and gender equality are incompatible concepts.
The concept of Wilaya is the basis for the patriarchal society that Islamic family law advocates and in this sense it is the basis for my argument that the theoretical setup of Islamic family law leaves jurists and Islamic theologians with a predisposition to the tendency of subjugating women. This means that unless a revolutionary, modern interpretation of the sources is achieved, Islamic family law and gender equality are incompatible. ‘Wilaya’ is the concept that characterizes the relationship between family members in terms of protection and authority with the ‘wali’ being the male, Muslim guardian who has been religiously and legally sanctioned with this authority . It is important to consider that a male has legal independence when he reaches puberty and this discrepancy is justified using the Quranic verse (4: 34) which states that ‘Men are protectors and maintainers in relation to women according to what God has favoured some over others and according to what they spend from their wealth. Righteous women are obedient guarding the unseen according to what God has guarded. Those women whose disobedience you fear, admonish them, and abandon them in bed, and strike them. If they obey you do not pursue a strategy against them’ . These verses have provided the justification for the suppression of women as they imply that women are inherently weaker than men, both physically and mentally and epitomises the notion that is endemic amongst traditional Islamic thinkers that a woman’s skills are only suited to the household and are dependant subjects. It gives rise to the hegemonic idea that women are incomplete, dependant and incapable and as a consequence the texts implicitly state that the activities of women should be curtailed. This is further evidenced when you consider that the other states that a person must be in to be under a state of ‘wilaya’ is if they are legally insane or in the case of minors this state ends at puberty. This is significant as it implies that women have a mental capacity that is akin to a minor or a person that is not sane. This shows that the initial interpretations of Islamic family law do not go hand in hand with gender equality as they evidently dehumanise women and only consider them to be excelling in their roles if they are subservient. This can be seen in the Caliphate of Umar who limited the freedom of movement of women including the wives of the prophet peace be upon him. This reflects the natural patriarchal order of the society that they lived in the sense that there was a deep distrust of women who they believed were the primary source of fitnah. They also cited physiological differences such as the size of the heart and skull and psychological differences such as the perceived comparable lack of intellect and wisdom and the emotional nature of women. This illustrates that even the earliest Islamic jurists who were at one point direct companions of the prophet (pbuh) believed that the Quran promoted the irrationality and lack of mental and physical strength of women as a reason for the requirement for guarding women and in turn, guarding the community interests. This means that the early interpretations of the Quran and Hadith on Islamic family law are incompatible with today’s generally accepted notions of gender equality. The interpretation that is found in the Hanafi school differs from the rest in that it makes it essential that a woman who is a virgin may enter herself into a marriage without a wali and this goes counter to the patriarchal system that allows women to be victimised and shows that if there is a reformation of Islamic family law that takes into consideration the transformation of human rights and gender rights there may be a scope for an amalgamation of Islamic family law and gender equality.
Reformation of Islamic family law is vital for it to successfully liaise with the ideals of gender equality simply because most of the prominent interpretations of it are a combination of internalised cultural notions and a misrepresentation of what the Quran and the prophet (pbuh) wanted to implement in the sense that it is often considered immoral and unislamic for a female to have unequivocal control over who and when she marries. This can be seen in Pakistan where the case of Saima Waheed has allowed us to explore the value of reformation and reinterpretation and leads me to believe that until this reformation occurs wholeheartedly it is impossible to think of Islamic family law and gender equality as peacefully co-existing. Ms Waheed married her brother’s tutor without the consent or knowledge of her parents and the verdict was that Ms Waheed was in fact married even though there was no involvement of a wali or guardian. The dissenting judge Ihsaan-ul Haque Choudry argued that the verdict that she was married was corrupt as a woman had no right to contract a marriage independent of any male guardian. He argued that the legal stipulations had been corrupted by the British colonial rulers and that Islamic morals were being compromised by the minority Hanafi view where there is no legal requirement for a woman to have a wali. He believed that if this inconsistent Hanafi view is legalised it would create a dangerous precedent that would lead to a society that if free from moral and social justice. Judge Malik Muhammad Qayyum relied on the federal act and concluded that Ms Waheed was allowed to marry without consent and that it is important to uphold the society and its sanctity. Judge Khalil-UR Rehman concentrated on the rights of women based on Quranic prerequisites and that it was necessary for women to have this freedom if Islam it to be accepted by a believer in its entirety . This is significant as it seems to contradict the interpretations of Islam where women have entirely unequal social performances and shows that a reformation is needed because these interpretations are based on pre-Islamic notions where women were downcast and it was wholly unrealistic to talk of equality. This shows that although the religion does seem to promote gender equality the legal specific verses on Islamic family law, or at least their interpretations, are incompatible with gender equality as a concept. It is imperative to consider some of the reforms that have been made as they expose this incompatibility by illustrating the incongruity of Islamic family law with these notions of equality. In 1961, improvements were made where the wife had the option of divorce if she didn’t approve of her husband’s wish to take a second wife which in itself is contradictory as a woman has no authority whatsoever to even attempt to take a second husband. This shows that although attempts at reformation have occurred, the interpretation of Islamic family law is fixated on the cultural notion that women are incapable of self-determination, as evidenced by the treatment of the marriage of a woman to the sale of property.
Just as the Islamic family law regulations inexorably leads to some women being forced into a marriage that they may not approve of or have ultimate power over, the stipulations on divorce allow men to have further power over women by not only giving the man almost indisputable power to terminate the marriage but also by allowing the man to exercise his discretion as to whether the woman may part from this contract or not. This is because Islamic law affords the husband the privilege of terminating the marriage without reason and without any endeavour towards reconciliation simply by repeating the word ‘talaq’ three times. This is in direct contrast to the procedure for divorce for the wife who is only allowed to exercise her discretion and seek a divorce if the husband affords her that right, by returning her dowry, by judicial enforcement or in the case of the contravening of the conditions of the marriage contract. An example of the application of these stipulations is in Egypt where up until the year 2000 a woman could not get a divorce without exigent circumstances that included imprisonment of the husband for 3 years or more, desertion and if the woman could prove that she was being harmed. The remedy for this stated that a woman could obtain a divorce without the discretion of the husband if it was approved by the relevant court authorities as long as she paid back her dowry in full . This shows in no uncertain terms that, when it comes to divorce, both the concept of Islamic family law and the application of Islamic family law are incompatible with gender equality as even a reformation of the application of it in Egypt culminated in the wife being bound by shackles that are at directly juxtaposed to the unilateral right of divorce that the husband is given. It has been argued that the defence for this is that it is sinful for a man to terminate the marriage contract for no justifiable reason and as it says in the Quran ‘of all permitted things, divorce is the most reprehensible’ . It must be emphasised that there is no worldly punishment for such an abhorrent act of immorality but rather is it left to the conscience of the man and is a matter for the day of judgement whereas the many female victims of this injustice have suffered for many years and in many parts of the world. The most excusable application of the rules of Talaq is in Tunisia where the talaq must be uttered in a court of law in order to be validated and it says everything about the incompatibly of Islamic family law and gender equality that the most reformed version of the rules on divorce only change the setting, not the unreasonable fundamentals that are yearning for reform.
Despite the restrictions and lack of consent that is evident in Islamic marriage and divorce laws, the wife is still obliged to fulfil the determinations of her marriage contract and the legal manifestation of this are evident in Egypt where the concept of ‘Bayt-al-ta’a’ is in place where the key theme is obedience and subservience on the wife’s part. Melissa Sions calls it a jurisprudential innovation’ and it is so because there is nothing in the Quran or any other significant Islamic source where it is stipulated that a woman’s movement may be restricted for no palpable motive except to promote conformity. This concept can be translated to ‘the house of obedience’ and it commits the wife to the confines of the home as part of the contract where the man provides the wife with financial security. As with any other marriage contract prerequisite, if the wife refuses to do so she forfeits her maintenance and may leave herself vulnerable to an undertaking of court proceeding against her. This is unambiguous evidence of the inadequacy of the interpretation of Islamic family law and in turn, the application of Islamic family law and the concept of gender equality cannot be seen as harmonious or compatible concepts as there is the possibly that the husband will legally put his wife in a state of affairs that is more suited to a convicted criminal. Although there is no scope in theoretical Islamic family law for forcing someone to stay in the home, there is this underlying theme of obedience and more specifically, the notion that the woman must make herself sexually available to her husband. It is almost impossible to say that a concept that, explicitly or otherwise, states that sexual availability is a duty upon the wife and a contractual right of the husband, is compatible with universally accepted ideals of gender equality and justice and this is further exemplified if you consider the application of it in Iran where the contract of marriage involves a punishment for a wife who makes herself sexually unavailable to her husband and gives the impression that a man has complete control over his wife body, in terms of where it is and when it is to be used for his pleasure. Article 1105 of the Iranian civil code implicitly tells the people that the demand of the husband must be met as he is the head of the family and in article 1108 it states the punishment for disobedience to the husband as forfeiting her maintenance and it has been argued that this article provides legal basis for the physical abuse of the wife . This shows that Islamic family law and gender inequality are far from harmonious because the sexual rights of the women are nonexistent whereas the sexual rights of the husband are legally enforceable.
In conclusion, although it may seem inconceivable that a religion that demands justice for the world and a concept that demands justice based on gender are incompatible, this is the case with Islamic family law where the pre-Islamic cultural notions have suppressed the ability of the jurists to interpret the Quranic text and hadith in a way that is complementary to the standards of justice and equality that is considered a right in most countries today. This is set against the backdrop of the notion of wilaya which endorses the patriarchal set up that was ubiquitous at the time of the prophet (saw). The issues of consent in marriage and divorce are illustrations of the lack of harmony between Islamic family law and gender equality both in theory and in terms of its application. It is noteworthy that Islamic family law was thought of as revolutionary at the time in the sense that society was exclusively dominated by males to the point that it was considered a mark of shame for your wife to wear a female child. It would have been impossible to convince societies who are so intransigent in their misogynistic beliefs that it was customary to bury a female newborn alive, that men and women should be equal in terms of family law and matter of inheritance. For this reason I am an advocate of an entire reconstruction, reinterpretation and reformation of Islamic family law in order to establish a system that allows women to live as part of a free egalitarian society and do not believe that Islamic family law as it is today is congruent with notions of gender equality.