Asghar Ali Engineer
(Islam and Modern Age, January 2007)
The Muslim women's issue has become quite important in the contemporary world for number of reasons. Women today are much more educated than ever before and this education is modern secular education, not only religious one. Also, many of them are working independently and many are even financial experts in their own rights. Thus they are no more dependent on parents or husbands or other male relatives. This dependence makes them more assertive of their rights.
Also, unlike in the past, media plays big role in reporting cases of gender discrimination or gender empowerment. Now besides print media there is also electronic media, which has much greater impact than print media. For example, when the Shahbano case for maintenance took place in mid-eighties, electronic media was not so much in vogue and case was reported only in newspapers and magazines. But recently when Gudia case or Imrana case of rape took place, it was widely covered by electronic media and there were discussions on various channels.
All this has increased awareness among Muslim women of their plight and so are putting pressure for change in laws pertaining to marriage, divorce, inheritance, rape and so on. There is one more factor, which plays important role. It is formation of women's NGOs. These NGOs are educating women for their rights and also organising them and fighting cases on their behalf. Muslim women are no exception to this rule.
Recently some women formed their own personal law board and are challenging decisions taken by All India Muslim personal Law Board, largely a man-dominated body of conservative 'Ulama who base all their opinions on the medieval texts evolved by mainly male-interpreters of the Qur'an and hadith. Women had little role to play in formulation of these Shari'ah laws.
The medieval text cannot be enforced mechanically today. It has to be thoroughly re-thought in modern context. Women's rights are very crucial today and the way women's rights are violated in Islamic society is attracting wide criticism in media and also in scholarly circles. Many modern Islamic scholars are minutely studying various Islamic texts in relation to women's rights including the Qur'an and are trying to re-interpret them.
A careful study of the Qur'anic text would show that entire discourse on women in Qur'an is right-based and about men duty-based. But in Shari'ah laws this was reversed, partly, if not wholly and wholly, in customs and traditions. In this paper we will throw detailed light on Qur'anic text both in relation to women and men and see how far it is true. In fact the main source of Islamic legislation should be Qur'an and those ahadith which are in conformity with the Qur'anic teachings and not any hadith. Any hadith which contradicts the Qur'an, should be rejected howsoever authentic its narrators might be. Unfortunately today hadith prevails over the Qur'an, even if it contradicts the Qur'an.
THE QUR'ANIC DISCOURSE ON WOMEN
All the verses about women in Qur'an are right based except two or two i.e. 4:34, 24:31 which appear to be prescription of conduct for them. But even these verses need to be carefully read and on carefully reading them, as we will see, they too are very carefully worded as not to go against women so as to make them subservient to men as often Shari'ah texts of various schools tend to portray them. These verses have been much abused by orthodox 'Ulama to portray women as 'subordinate sex'. However, a careful reading of these verses does not indicate, in any way, that women are subordinate sex. It should be noted that women became a subordinate sex in Muslim society in spite of the Qur'anic text.
The Qur'anic teachings are basically normative and transcendent and hence all prescriptions about women are right-based, transcending all constraints of time and space. However, when concrete laws were made during Umayyad rule, Muslims had already come in contact with Byzantine and Sassanid cultures, which were based on feudal values and the eminent jurists of Islam living during those times were influenced in their outlook by these feudal and patriarchal values.
Before we discuss this let us take a view of Quran's verses pertaining to women. I would like to refer to the verse 2:228, which is declaration of equality of sexes and intention of the Qur'an to project a right-based discourse for women. Needless to say in pre-Islamic Arabia too, with few exceptions, women were a subordinate sex and entire discourse was duty-based for women and right-based for men.
The Qur'an, which made human dignity (17:70), its fundamental approach, could not have accepted this situation. Men and women enjoyed equal dignity and since society accepted only male superiority, the Qur'an reversed its priority and made its discourse on women entirely right-based and about men duty-based. But unfortunately the society under feudal influences again reversed this and made substantial part of discourse on women in Shari'ah laws duty-based and that of men right-based.
Thus the Qur'an begins by declaration of equality of sexes and then goes on to prescribe rights for women. Women had no part in choosing her marital mate. Qur'an not only made marriage a contract (4:21) but allowed women to stipulate her own conditions and determine the mehr (dower) amount. She could demand as much as heap of gold (qintar), if she likes and in pre-Islamic society mehr belonged to father but Qur'an said it will belong to her and even her husband cannot take it away from her. If she wants she can give part or whole of it to her husband. Even Shari'ah had to concede that she could stipulate whatever conditions she like in her marriage contract and marriage will be valid only if those conditions are accepted by the husband to be.
One can of course say that polygamy goes against her right in marriage and she has to live with co-wives. The Qur'an created wives' rights even in polygamous marriage. Firstly, the verse on polygamy is recommendatory in view of the situation arose as a result of battle of Uhud in which large number of men were killed and number of widows and orphans were to be taken care of and men were allowed up to four wives from amongst these orphans and widows (see 4:3). But the verse on polygamy also is right based rather than duty-based for women and duty-based for men. Men are strictly warned to do equal justice else they better marry one (4:3) and further warned in 4:129 that they cannot do justice even if they so desire and that they should not leave first wife hanging in the air. The very tenor of these verses shows that they are right based for women and duty based for men. The Mu'tazila theologians insisted on reading both verses on polygamy 4:3 and 4:129 together and insisted Qur'an recommends monogamy emphasising rigorous justice for co-wives in case of polygamy which is humanly impossible. Thus this verse is also clearly right based for women.
Divorce in pre-Islamic society was exclusive privilege enjoyed by man. Women had no right to divorce her husband and divorce was quite arbitrary. The Qur'an corrected this one-sided practice and allowed women too, to liberate herself from her husband, if she felt she could not fulfil the hudud (limits) of Allah, see verse 2:229. This right of women to obtain khula' from her husband is absolute and this is further confirmed by the hadith according to which the Prophet (PBUH) allowed?Jamila kula' though her husband Qais bin Thabit loved her and gave her maintenance generously. But Jamila did not approve of her husband's looks and hence she approached the Prophet (PBUH) and he granted her khula'. (see Bukhari, Hadith 197-199, Vl. 7 Book 63)
Thus in Arab society where no right existed for women to divorce, she was granted one and made it absolute. However, in a feudal social milieu where she was confined to home and did not play an active role in public life, her right to khula' was subjected to husband's consent which is not Qur'anic requirement. Today, according to the Shari'ah law, she has to beg her husband for his consent for khula' and husband often harasses her by refusing to give consent or demanding heavy price in terms of money for the same.
Even where husband divorces her, she has certain rights. The Qur'an clearly safeguards her right when husband decides to divorce her. According to the Qur'an husband cannot take back meher amount, even if he has given her heap of gold. Secondly, she cannot be driven away from husband's house until she observes 'iddah (three month's period after pronouncement of divorce).
Also, after completion of period of 'iddah husband is required to either retain her in good fellowship or leave her with kindness (2:229). The same verse clearly says that you cannot take anything back from her whatever has been given to her. She has right to retain everything given her at the time of marriage.
Where husband intends to divorce his wife, he cannot do so arbitrarily, as it often happens in Muslim societies. The Qur'an requires process of arbitration before divorce in which wife has right to nominate one arbitrator along with husband who can nominate one from his people. (See 4:35). In this arbitration wife cannot go un-represented. And divorce has to be given in presence of two witnesses (65:2). Thus the Qur'an lays down proper procedure for divorce so that women do not become victim of arbitrariness. Unfortunately all this was lost in Shari'ah laws and man retains the right to divorce his wife as and when he likes. It is totally un-Qur'anic.
The Qur'an takes into account other possibilities of divorce i.e. divorce before her husband touches her and before he fixes her dower. In that case he has to pay her some compensation rich according to his capacity and poor according to his capacity (2:236) and if he divorces her before touching her but after fixing dower amount, she has right to half that amount (2:237). She cannot just be thrown out.
Even after divorce she has right to maintenance (2:241) and if one goes by the literal meaning of the verse, she will be entitled to maintenance until she remains a divorcee since Qur'an does not prescribe any time period. The Qur'an says in verse 2:241 that make provision for divorcees in kindness, it is duty of the husband. Once she remarries she will not be entitled to it and if she dies this right ceases.
And when her husband dies she cannot be removed from her husband's house at least for one year and it is his duty to make a will to that effect. But if she leaves of her own will, she can (2:240). She will also be entitled to inherit one eighth of her husband's property as per verses on will.
Thus it will be seen that entire discourse about marriage and divorce of women is right-based in Qur'an. Her rights in all these respects have been clearly spelled out without any ambiguity. Yet, in practice these rights are not available to her due to patriarchal social ethos. She enjoys these rights both as married and as divorcee. She is entitled to maintenance when married, even if she has her own income, more than her husband's. Husband is required to maintain her in any case.
Even in orthodox Shari'ah law maintenance has been well-defined. According to a fatwa given by 'Ulama during Aurangzeb Alamgir's time and copied under Fatawa' Alamgiri maintenance is defined as to include 1) food; 2) clothes; 3) house and 4) other requirements like maintaining her health and beauty.
Under food it is clearly led down that wife is not obliged to cook and husband has to arrange cooked food for wife. Similarly he has to give her stitched clothes and a separate house to live in and if not possible to arrange separate house, he has to arrange a separate room for her privacy with separate access so as not to be obliged to share it with other members of husband's family. He also has to arrange for medicines and other items of toiletry so that she can maintain her health and beauty.
If husband does not arrange for all these things and also does not pay her reasonable amount in cash for her maintenance, Shari'ah gives her right to remove an equivalent amount from her husband's pocket without being charged with theft. If this is also not possible and husband deprives her of maintenance for long, she can initiate divorce procedure.
The Qur'an gives her right to property, which she enjoys untrammelled (4:32). Her father or husband cannot force her to share with them unless she does it of her own will. She was also given right to inheritance as daughter, as wife and as mother though her share is half that of her brother, her husband and her father (4:11-12). The Qur'an created her right in inheritance where none existed before. The objection that she was given half may be justified in today's context but not in 7th century context. Also, her right to maintenance both as wife and as mother offsets to some extent her deprivation in share. Nevertheless she got right to inherit when it was unthinkable in any system of law. The Qur'an also gave father right to will before his death and he can will more to his daughters. (4:11-12)
The Qur'an gave her equal dignity as pointed out above and protected it by banning certain practices prevalent in pre-Islamic society. The step -sons could marry their fathers' wives. Qur'an strictly banned such practice (see 4:22) and also there was practice in pre-Islamic society of Arabs that elder son could marry after death of his father to possess his widows, marrying themselves if they pleased without settling dowry on them or marrying them to others or prohibiting them to marry altogether (Bukhari, 65:iv, 6). Qur'an banned all these practices see 4:19 and 4:22.
Also, to consolidate her dignity Qur'an made it clear that Allah has created both men and women from a single being (4:1) and thus refuted the earlier belief that Adam was created first and then Eve. Both were created for each other's company (9:71). The story of Adam and Eve has been narrated in Qur'an in a way that does not hold Eve responsible for inducing Adam to eat fruit of the banned tree but both are held responsible and Satan leads them astray together (2:35).
And all this dignity and rights were given her hundreds of years ago when there was absolutely no concept of women's rights, only of duties. No where Qur'an prescribes duties for her, but only rights. There are two verses, as pointed out above, which are quoted by the orthodox 'ulama to establish her secondary status as compared to man i.e. the verse 4:34.
This verse is much debated as to whether it establishes superiority of men over women. In fact the word qawwam (maintainer, manager of affairs or one who looks after etc.) is a functional term and does not ensure biological superiority in any sense of the word. Also, man is not maintainer for ever and in all societies. He was so in the Arab society of the time the Qur'an was being revealed. Today women also earn and hence they also become maintainers and managers (i.e.qawwam). there is no question of establishing men's superiority over women and this is further confirmed by following words that We have given more merit to some over some others, it does not say We have given more merit to men over women. The words used are very important to note. Still this verse is often quoted to prove male superiority.
The last portion of this verse, it is maintained by the 'Ulama, allows men to beat their women (fadribuhunna) which again is questionable. The word daraba has several meanings in Arabic language and even in medieval ages, Imam Raghib Asfahani, an eminent Qur'anic lexicographer, has pointed out that daraba 'ala means she camel going near he camel. In this verse it would mean if women is persuaded after her revolt, you go near her, and not that you beat her.
Women were active participants in all debates relating to their rights and when this verse was revealed and was being debated they went to the prophet and asked whether it implies they are inferior to men in any way. In response to their poser the verse 33;35 was revealed which s classical statement of equality of men and women. This verse is almost suppressed by the orthodox jurists in all their discourse on women's rights. This verse further proves that Qur'anic discourse n women is right-based and not duty-based. This verse should be given top priority in discussing gender question in the Qur'an.
Another important proof of gender equality in Qur'an is that all religious obligations are same both for men and women. Men and women both are required to pray five times, fast during the month of Ramadan, both should perform haj, if they have means to do so and both have to pay zakat based on ones income. Women have not been exempted from any of these duties.
Also, both women and men have to enforce what is good and contain what is evil and it is on this basis that Imam Abu Hanifa, Tabari and Imam Malik maintain that woman can become head of the state and qadi. However, many jurists and 'Ulama, despite all this maintain that a woman cannot become head of the state though some of them concede she can become qadi (judge).
Why this negative attitude towards women? It is obviously social, not Qur'anic. As pointed out before, human behaviour and opinion is moulded by several factors, social, economic, cultural and political, simply not by scriptural. The whole understanding of scripture undergoes drastic change or other texts are created (such as hadith) to bring about change I understanding of scriptural authority.
Islamic values and theology underwent radical change in patriarchal and feudal social structure. Instead of changing or transforming patriarchal, feudal social structure, the whole scriptural understanding was transformed to suit the patriarchal feudal society. Thus right-based discourse of the Qur'an for women was changed entirely into duty based one and duty based discourse for men became right based.
It because of this transformation from right based to duty based discourse that women are suffering in modern society. There is stranglehold of Ulama on the community and the 'Ulama are under the stranglehold of medieval text. They have neither ability to creatively think in the new context nor have they any such training. For any problem that arises they consult the medieval text and opinions of classical jurists and based on that text they issue their fatwa.
As a result of such attitude Muslims in general and Muslim women in particular continue to suffer. The Shari'ah has totally become stagnant and has lost its earlier dyamism. There is urgent need today to make it dynamic again by revisiting the Qur'anic text and again restoring right based discourse. This will greatly help Muslim women who also depend on text and cannot do otherwise. It will be much better if women themselves develop expertise to interpret the Qur'anic text. We need more and ore Islamic feminist theologians than ever before.
