WOMEN’S RIGHTS IN ; THE CHALLEGE OF MODERNITY

Najibah Mohd Zin1

1 Dr Najibah Mohd Zin is an A Professor in Ahmad Ibrahim Kulliyyah of , International Islamic University Malaysia. The original version of this paper entitled ‘Women’s Rights in Islam’ has been published in Abdul Ghaffur Hamid. (2012) Human Rights ; International, Malaysian and Islamic Perspectives, Sweet and Maxwell. Introduction

Women rights in Islam remain a controversial subject since decades partly contributed by misconceptions in translating the law into practical reality. In another dimension, many cultural practices as commonly practised by Muslims, particularly in Muslim countries often reflect negative treatments towards women. Therefore, this chapter will focus on fundamental aspects of women rights based on the premise that Islamic law has a comprehensive set of legal frameworks regulating women in elevating and determining their status in the society. The study includes contextual analysis of these principles when examining their practicality in the modern context. Reference to international instruments is made to further support the arguments and comparatively assess their compatibility with the status of . Primary sources of Islamic law will be the main references with further illustrations and exegeses from legal texts of acceptable standard in Islamic law research. Writings of modern scholars will be referred to as secondary sources which represent contemporary views on how Islamic law treats women.

An overview on the principles of equality between sexes

The rights of women in Islam have been discussed in great length by many Muslim scholars as to signify the important of this subject matter from Islamic point of view. This owes to the historical factors where women were comparatively deprived of their rights to men. In pre Islamic period, women have been described as to have no rights, and many practices that concerns about her personal affairs to domestic relations were subject to abuse. Incidences such as burying daughters alive, the practice of unilateral divorce unjustifiably, unlimited number of polygamous relationships and being denied of property rights are common subjects on literatures that discuss about the status of women before Islam.2

One of the important issues that being criticised was on the aspect of equality of sexes which has been described as the most unequal and has been the subject of images and

2 See for example contemporary writings on women’s rights and status in Islam such as Ashgar engineer, (1996) The Rights of Women in Islam, USA: St Martin’s Press; Abdul Rahman I Doi, (1989) Women in Shari’ah, London: Ta Ha Publishers; Fatima Umar Naseef (1999) Women in Islam: A Discourse in Rights and Obligations, Egypt: International Islamic Committee for Women and Child, p.3 generalisation, subjugation and second class citizens.3 Though equality between sexes may not necessarily being viewed in mathematical form, Muslim scholars agree that equality must be seen as an acceptance as to the dignity of sexes in equal measure, be that in social, economic as well as political rights and responsibilities.4

The above argument is based on the divine rules which address the universal aspect of human creation. The concept of natural dignity of all humans has been mentioned in many verses of the that may provide sufficient proof of human origin. For example the Quran states:

And indeed We have honoured Bani Adam (the child of Adam), and We have carried them on land and sea and have provided them with at Taiyyibat (lawful good things) and have preferred them above many of those whom We have created with a marked preferment5

Literally, the word Bani Adam represents both men and women and both are equally honourable without distinction of sexes. The universal concept of human creation is consistent with the fact that all humans are respectful provided that one protects his dignity with iman, amal soleh (good deeds) and taqwa (piety), the virtues that differentiate the spiritual level of mankind before . For this reason, the Qur‟an states:

Oh mankind, We have created you from male and female, and made you into nations and tribes, that you may know one another. Verily, the most honourable of you with Allah is the believer who has taqwa (the pious)6

The above quoted verse mentions the diversity of human creation into tribes and nations to reflect and fulfil individual needs towards others and this applies equally the same in case of a relationship between man and woman. The need that is further illustrated in several Quranic verses as equal to the needs for food and clothing7 and these are essential for human survival. This relationship between men and women is

3 See John L.Esposito (1998) Introduction: Women in Islam and Muslim Societies in Yvonne Yazbeck Haddad and John L. Esposito (ed.) (1998) Islam Gender and Social Change, New York: Oxford University Press, p. xi 4 See for example Ashgar Ali Engineer, p. 42 5 The Qur‟an, al Isra‟: 70 6 The Qur‟an, Surah al Hujurat 49: 13 7 See for example, The Qur‟an, 2: 187 further strengthened by a declaration in the introduction of surah al Nisa‟, a specific chapter that addresses and regulates most aspects of women and domestic relationships. The Quran states:

"O Mankind, keep your duty to your Lord who created you from a single soul and from it created its mate (of same kind) and from them twain has spread a multitude of men and women". 8

The verse provides a legitimate explanation and support to the previous discussion that man and woman are from the same origin i.e. Adam and they are not two separate entities but partners.9 They supposed to treat each other like brother and sister and should not inflict harm to one another. The tradition of the Prophet further supports the above explanations with elaborative description that Allah created Eve (Hawa) from the rib of Adam and therefore she must be respected and treated with kind and patience.10

Though there are instances where the Qur‟an seems to place men a slight edge over women, this is due to social and biological function performs by two sexes and should not be viewed as gaining superiority over the other. This is further explained in these Quranic verses that:

And for "And they (women) have rights similar to those (of men) over them, and men are a degree above them." 11

And for all, they will be degrees according to that which they did that Allah may recompense them in full for their deeds. And they will not be wronged.12

Men are protectors and maintainers (qawwam) of women, because Allah has made one to excel the other and because they spent (to support them) from their means.13

8 Surah al Nisa‟, 4:1 9 Surah 42:11, 7:189. See Al Qurtubi, Al Jami’u al Al Qur’an, vol.5, no details of publication, p. 3. 10 Sahih al Bukhari, no. 548 (in Book of the Prophet) 11 The Qur'an, al Baqarah, 2:228 12 The Qur‟an al Ahqaf 46: 19 13 The Qur’an, al Nisa’, 4:34 The commentators view that the term ‘qawwam‟ is nothing more than just a provider for the family which is natural in any collective life and which is consistent with the physiological nature of man. This relationship explains about the role of leadership in relation to his family because of the marriage and the fulfilment of his duty towards Allah.14 It does not legalise the husband's dictatorship over his wife. This is mainly to regulate social function, not neglecting the fact that contribution of women is significant in providing financial needs to the family.15 The differentiation is vital to remove any forms of misconception about each other‟s role in domestic relationship, for which in the absence of a proper understanding, it may lead to a physical or mental abuse as commonly practised in certain cultures. This is due to the failure in understanding the contextual interpretation of certain Quranic verses which often resulted in normative and literal understanding of the text. For instance, the permissibility for wife‟s beating has been understood as to encourage domestic violence and because of that it leads to gender discrimination. Legally, this provision mainly deals with an infliction of physical punishment with “the intention to discipline the wife and strictly non injurious”16 by the authority on those women who are rebellious from their assigned function or in breach of sexual conduct (nusyuz).17 Otherwise, the husband must pay compensation for any injury caused to the wife.18 This remedy could only be exercised upon several precautionary measures and observed other reconciliatory efforts such as family mediation or advice or separation from bed.19 This is because the Islamic traditions never permitted wife beating which was a common practice during the pre-Islamic period. It was narrated that the Prophet gave a cynical statement during a sermon about the habit of men who beat their wives and subsequently sleep with them.20 It was narrated by Aishah that the Prophet never beat his attendant (servant) not his wife, nor did he beat anything with his hand.21

In balancing both rights, the emphasis is given to the importance of taking counsel and mutual agreement in family decisions which has been mentioned repeatedly in the

14 See Al Qurtubi, Al Jami’u al Ahkam Al Qur’an, vol.5, p. 169. 15 See Ashgar Ali Enginner, p.50 16 See Al Qurtubi, Al Jami’u al Ahkam Al Qur’an, vol.5, p. 172 17 This provision has been incorporated in modern legislation as to one of the matrimonial offences committed by the wife. See for example Islamic Family Law (Federal Territories) Act 1984, s.59. 18 See Al Qurtubi, Al Jami’u al Ahkam Al Qur’an, vol.5, p. 172 19 All these measures are mentioned in the Qur,an, 4:34 20 Sunan Ibn Majah, Sunan Ibn Majah, hadith 1983, Eng.tr. by Tufail Ansari, Lahore: Zaki Publication, 1993, p.194. 21 Ibid., hadith no.1984 Qur‟an such as the arrangement for child maintenance after divorce,22 resolution of marital conflicts23, and in difficult situation such as divorce.24

Women and Childhood-basic rights

Islamic law elevated the status of women by abolishing the cultural pattern of killing daughters alive during the pre-Islamic period. The Qur‟an declares that women have the right to life as equal to men that signify one of the objectives of Shariah that is preservation of soul (nafs). The act of killing daughters for fear of humiliation, dishonour and poverty has been condemned in Islamic traditions and in a scolding and reprimanding style.25 In the hadith, the Prophet said „if anyone has a female child, and does not bury her alive or slight her, or prefer his male children to her, Allah will bring him to paradise‟.26 The hadith does not mention about male children.

Muslim scholars emphasize on the importance of parental duties to care for the baby ever since in the mother‟s womb. The father as the main financial provider must ensure that the mother will have access to nutritious meal and spiritually fit.27 This duty continues until the child is born and it is the duty of her guardian28 to provide care and protection until she reaches the age of marriage29 where after the marriage, the guardianship will be transferred to her husband. Otherwise she will remain in the care of her father or guardian if she remains unmarried or widowed. The principle which is guided under the concept of welfare or interest of the child (maslahah) is well developed in Islamic law imposing liability on both parents to provide the bests for the child including to understand the child developments and needs. They are also responsible for the daily care and control of the child and to decide all matters in

22 The Qur’an, 2:233 23 The Qur’an, 4:34,35 24 The Qur’an, 2:229 25 See the Qur’an, 16: 57-59; 81:8, 6: 151 26 Sunan Abu Dawud, Kitab al ; hadith 5127, eng.tr. p. 1424. 27 See also Fatima Umar Naseef, p.75 28 In most cases the guardian is the father or other close relatives in the absence of the father. This concept is different form the pre Islamic practice where women are considered as chattel, can be inherited or possessed or enslaved. 29 The Qur’an, Al Nisa’, 4:6. It refers to the age of baligh where the girl is able to understand and hold responsibilities in all aspects of life including marriage. Some Muslim jurists prescribed at 15 years while others prescribed at 18 years. For Further details see, Al Qurtubi, Al Jami’u al Ahkam Al Qur’an, vol.5, p. 34. which the child could not decide for himself and the cultivation of the child‟s mind30 by giving proper education in preparation for the child‟s future. On that basis, the Prophet teaches the parents to train the child to pray at the age of seven, that is the maturity age, and observe them patiently and regularly.31 The above discussion shows that women are legally protected throughout their life cycle by their guardian from close relatives or the State in the absence of natural guardian. Though the concept of guardianship has been criticized as being patriarchal and represents negative connotation, the exercise of power must be consistent with the intention of the law that is to provide protection rather than putting restriction on women to exercise their rights.

The rights of the child are encapsulated in the Cairo Declaration of Human Rights32 to indicate consistency between the general rules in Islamic law and modern needs for physical, emotional and spiritual developments among children. The article reads;

(a) As of the moment of birth, every child has rights due from the parents, the society and the state to be accorded proper nursing, education and material, hygienic and moral care. Both the foetus and the mother must be safeguarded and accorded special care.

(b) Parents and those in such like capacity have the right to choose the type of education they desire for their children, provided they take into consideration the interest and future of the children in accordance with ethical values and the principles of the Shari'ah.33

30 See for example views expressed by Al Nawawi, Minhaj Et Talibin, A Manual of Muhammadan Law, (Translated into English by E.C. Howard, Lahore: Law Publishing Company, p.391 See also Sabiq, al , V2, pp.301-302 31 The Qur’an, 20 :132 32 This declaration is a document on Human Rights in Islam that will serve as a guide for Member states in all aspects of life based on Islamic principles. The issuance of such document was made in the Nineteenth Islamic Conference of Foreign Ministers (Session of Peace, Interdependence and Development), held in Cairo, Arab Republic of Egypt, from 9-14 Muharram 1411H (31 July to 5 August 1990).

33 Cairo Declaration of Human Rights, Article 7. The provisions that constitute the essence of Islamic law, emphasising on the child‟s rights from parents or guardian which includes among others the rights to be given good name, right to paternity, and nationality soon after the child is born.34

Apart from physical needs, the most important aspect of women‟s right is to receive education for her intellectual, emotional and spiritual development. The hadith that „seeking or acquiring knowledge is obligatory‟35 is a reminder for all male and female. The importance of teaching for women has been given emphasis in many including a double reward to a man who teaches his family though the woman is just a slave. The Prophet himself makes a point to teach women religious knowledge and other matters related to them. To some extent the Prophet has allotted time for them as most of the times were occupied by men.36 This scenario explains the important of education for Muslim regardless of sexes which is a common fact in Islamic history. It is proven in early Islam where women who were looked down like chattels „became among learned figures of their time and started offering guidance to others in educational matters‟. Historically, Muslim women scholars who were well known of their intelligence and great contributions in Islamic periods are wives of the Prophet himself such as Aishah, who is a teacher for Companions and Tabi‟in37 in many areas of knowledge, Saffiyyah who is learned in Fiqh and including among others are wives and daughters of Prophet‟s companions.38

In order to remark the importance of knowledge, the Cairo Declaration of Human Rights states: 39

(a) The seeking of knowledge is an obligation and provision of education is the duty of the society and the State. The State shall ensure the availability of ways and means to acquire education and shall guarantee its diversity in the interest of the society so as to enable man to be acquainted with the religion of Islam and uncover the secrets of the Universe for the benefit of mankind.

34 This principle is derived from the Quranic injunction illustrating the incident after the birth of Maryam, the mother of Prophet Isa. See also, the Qur’an, 3: 36. There are many hadiths that explain about the importance of giving good names to the new born babies. 35 The hadith is reported in many narrations. See for example Sunan Ibn Majah, Eng.tr. by Muhammad Tufail Ansari, Lahore: Zaki Publication, 1993, p.126. 36 See Sahih al Bukhari, hadith 83, 84, 87 37 Those who have survived during the lifetime of the Companions or commonly known as the third generation 38 Abdur Rahman I Doi, pp.139-144; See also Fatima Umar Nasef, pp. 83-84 39 See Cairo Declaration of Human Rights, Article 9 (b) Every human being has a right to receive both religious and worldly education from the various institutions of teaching, education and guidance, including the family, the school, the university, the media, etc., and in such an integrated and balanced manner that would develop human personality, strengthen man's faith in Allah and promote man's respect to and defence of both rights and obligations.

The above provisions emphasise on the fundamental right for Muslim‟s children regardless of sexes to receive education in response to their physical and spiritual needs, and such duty is imposed on the State to provide facilities for the learning process.

Marital Rights and Obligations

Another important stage of women‟s life cycle is when they become adult in which their rights and obligations are becoming more pertinent. At this stage, Islamic law provides for a more sensible and balance relationship between the rights of woman as an adult and her guardian. In some cultures, parents tend to be over protective which resulted that women are accused of being disobedient and disregard of their cultures and traditions.40 In many societies, force marriages are commonly practiced which normally end up with abuses or divorce. Therefore, it is very important that the legal position of women must be understood in their proper context in line with the purpose and intent of Islamic law. This includes of giving wider recognition to their rights as a feme sole, in that she has the right to retain her family name after her marriage and other rights given by law.

Right to marry and choose her spouse

Though the role of her guardian is vital in determining the girl‟s interest is protected including to choose a suitable husband for her, this power must be balanced with her right to make her own choice. The hadith provides guidance for spousal selection of a wife or husband, by taking into account human inclination towards beauty, good

40 See Fatima Umar Naseef, p. 89. lineage and wealthy, but suggesting for religious value as the most appropriate.41 Therefore, it is expected the parents will assist young couples to make wiser decisions based on their experiences.

The same applies to the rule that allows the father or paternal grandfather in the absent of the father, to give her daughter in marriage where such right must be for the interests of the girl and it remains a valid presumption.42 The hadith stresses that the father or the guardian should not give a virgin daughter in marriage without her permission.43 Therefore, Muslim jurists such as Shafi‟is maintain that the father can only marry the daughter off if the groom fulfils criteria of having financial ability to provide maintenance, both father and daughter are in good term as to relinquish any presumption of force and finally, both parties to the marriage must be of an equal status (kufu’). Otherwise, consent of both parties would be sufficient as the woman herself has a full legal capacity to enter into such contract. In a similar context, the require a strict compliance to the rule of kufu‟ as the main criterion for such an arrangement to safeguard the honour of the girl.44 Otherwise, the Prophet allows the girl to dissolve the marriage or in other narration the Prophet declares the marriage as invalid for lack of consent.45

Financial rights during marriage and after divorce

Besides all other provisions for her protection at the time of marriage, it was specifically decreed that woman has a full right to her , a marriage gift. 46 Though the modern legislation does not regulate mahr as a condition for a valid marriage, however, it is made compulsory to be given at the time of the contract (aqad) which is presented to her by her husband. Islamic literatures consistently agree as to her absolute ownership to mahr and it does not transfer to her father or husband except out her own free will and this law is profoundly based on the Quranic

41 This hadith is reported in many compilations of authentic hadith. For reference see Summarized Sahih al Bukhari, compiled by Al Zainuddin Abdul Lateef Az-Zubaidi, Translated by Dr Muhammad Muhsin Khan, Saudi: Maktaba Dar-us-Salam, under the chapter of Kitab al Nikah, hadith no.1835. 42 Sahih al Bukhari, Hadith no.1847 43 Sahih al Bukhari , Hadith 1848 44 Many hadiths of the Prophet command for the parties in marriage to be of equal status. See hadiths reported by Dar al Qutni, Sunan Dar al Qutni, Kitab al Nikah, Vol. 2, Beirut: Dar Al Kutub al Ilmiah, p. 208. See also al Marghinani, Hedaya, A commentary of Islamic law, Eng.tr. by Charles Hamilton, p.40; Wahbah al Zuhaili, Fiqh Al Islami wa Adillatuhu, vol. 9, Damshik: Dar al Fikr, 2005, p.6573 and 6706-7. 45 Sahih al Bukhari, Hadith 1850 46 The Qur’an, Al Nisa, 4:4 injunction that prescribes for such respect.47 This is a complete reform to the old practices that the mahr was treated as the property of either guardian or husband.48 The payment reflects reciprocal relationship between the contracting parties by giving the mahr as a gift symbolizing love and affection and fulfilling sexual needs through a valid marriage.

In addition to mahr, married women are also entitled to receive maintenance (nafakah) from her husband as a matter of right, which covers her basic needs of food, clothing, shelter, domestic maid if necessary and other necessities which may vary from one person to another.49 However, compliance to the needs and social standing of the married women in the societies are the test for assessment and configuration of the amount. Though giving nafakah is prescribed as a duty of a man towards his family, Islamic traditions emphasise that giving nafakah is also part of (charity) if a man spends something to his family with the intention to get the rewards from Allah. The Prophets also used to sell the dates of the garden of Bani al Nadir and store food for his family needs for a whole year.50 The standard equally applies the same in case of polygamous marriage in which the ability to maintain shall be the main criteria to decide on financial ability of the husband to have another wife apart from other acceptable reasons. 51 The seriousness in protecting married women‟s right to maintenance entail them an option to repudiate the marriage on the ground of failure to maintain.52 In other narration, the Prophet has granted Hind the wife of Abu Suffian who made a complaint about her husband‟s stingy character to take reasonable amount from the husband‟s safe for her and children expenses.53 This incident empowers the married woman to exercise her right through judicial process despite the husband‟s absence or refusal.

The right to maintenance remains after the divorce that is during the i.e. waiting period. Though there are differences of opinion with regards to the entitlement; revocable divorce alone or in all types of divorce, juristic view that favours for the

47 The Qur’an, Al Baqarah, 2: 229 48 Al Qurtubi, Al Jami’u al Ahkam Al Qur’an, vol.5, p. 23 49 The Qur’an, 65:6 50 Sahih al Bukhari, Hadith no. 1884, 1886 51 The Qur’an, Al Nisa, 4:3. See also Islamic Family Law (Federal Territories) Act 1984, s. 23(4). Many Muslim countries such as Egypt and Morocco have imposed similar restrictions. 52 See al Shaukani, Nail al Authar, Kitab al Nafakah, vol.8, Beirut: Dal Kutub al Ilmiyyah, published in 1999, p. 343 53 Ibid., p. 342 payment to be made regardless of the divorce status is more acceptable in the current contact. It will provide some financial relief especially for women who do not have stable income or financial resources. Otherwise the state must bear the responsibility as the guardian. This includes the right to accommodation after divorce unless they commit an act of indecency.54 If the iddah is observed due to the husband‟s death, the right to accommodation will continue up to a year.55 Though Islamic traditions mainly provide for general rules, detail principles pertaining to maintenance are outlined by Muslim jurists for further direction. Therefore, the wisdom of judges when granting the order by taking into account the needs and circumstances of the parties is very useful in the absence of amicable settlement.

In addition to her right to apply for maintenance, a woman who has been divorced without just cause by her husband may apply to the Court for mut’ah or consolatory gift under Hukum Syara‟.56 This is a financial provision in the form of consolatory gift to ease the divorced wife and comfort her after the divorce. The principle is derived from the Qur‟an that reads; And for divorced women, a suitable gift (mut’ah) on reasonable (scale). This is a duty on the righteous.57

The divorced women can claim a considerable amount of mut’ah if the cause of the divorce is not due to her fault. Mut’ah is claimable though the application for divorce is initiated by the wife. Islamic law does not fix the amount, however the quantification of the amount must take into account the capability of the husband to pay. The claim for mut’ah does not amount to a division of matrimonial property58 and it is not claimable in case of death of the husband

In other perspective, a married woman may also apply for division of jointly acquired property that has its basis under the Hukum Shara‟ as well as the Malay adat.59 In the Malaysian context, for example, it refers to property jointly acquired during marriage. It does not include property acquired before marriage or after divorce, property

54 The Qur’an, Al Talaq, 65:1 55 The Qur’an, Al Baqarah, 2: 240 56 Islamic Family Law (Federal Territories) Act 1984, s. 56 57 The Qur’an, Al Baqarah, 2: 241 58 See Tengku Putri Zainah v Dato Seri Najib Razak (1998) 12 JH 1 59 Ahmad Ibrahim (1997) Family Law in Malaysia, vol.3, Malayan Law Journal. p. 307 acquired through inheritance or gifts inclusive of gifts between spouses except when there is substantial development to the property. In such case, the value of the property that had been improved will be subject to division. In dividing the property, the law divides the acquisition of property into joint effort or single effort. Joint effort is when both parties jointly acquired the property in which case it would be divided equally between spouses. Sole effort refers to property acquired by one party only and the other party is either a househusband or housewife. In this situation, the property is divided according to his or her contribution in looking after the household and provides assistance to the other party indirectly. In such case, the court will normally give the award of 1/3 of jointly acquired property.60 The law guarantees the right to jointly acquired property even though the property is registered in either spouse name. It applies also in case when the spouse is declared bankrupt.61 The court will reserve the wife‟s right before disposing the property to pay the debt of the creditors. The latest amendment to the law provides for the matrimonial property to be divided during marriage in case of polygamy. As has been practiced in Selangor, it is compulsory for the husband to make allocation of property to the first wife in the application form for polygamy. Without such detail proposal, the Shariah court will not proceed with the application.62

Rights to divorce

Among criticisms that normally affect women pertaining to divorce is the unilateral form of divorce that is talaq, which were common in pre Islamic period where the husband can divorce his wife whenever he wanted and as many as he wished.63 Islamic law alters the practice by limiting the number of talaq for twice only which may allow the parties to reconcile and the third time will be the final.64 However, many literatures that discussed on the position of unilateral divorce as practised in the current context proved to be abusive towards women in the absence of judicial and legislative control.65 Due to the difficulty faced by Muslim wives, talaq divorce made

60 Islamic Family Law (Federal Territories) Act 1984, s. 58 61 See Overseas Pte v Anthony William 0' Brien [1988] 3 MLJ 332. 62 Standard practice as adopted in Selangor is available in a provided form. 63 See for example, Ibn Kathir, Al Qur’an al Azim, Vol.1, published 1997, Beirut: Dar al Ma’rifah, p. 289. 64 The Qur’an, Al Baqarah, 2: 229-232 65 also example J.N.D. Anderson, Islamic Law in the Modern world, London, 1959, pp. 51-52. 65See the Qur’an, 65:2. See also David Pearl and Werner Menski, Muslim Family Law, 3rd Edition, Sweet and Maxwell: London, 1998,p. 282. Mehrun Siraj, The Shariah Court of Singapore and its control of the Divorce Rate, [1963] 5 Malaya Law Review, p. 148. Ahmad Ibrahim, Family Law in Malaysia, 3rd Edition, Malayan Law outside the court has not been recognized in some Muslim countries and should be discouraged. Moreover, general rule provides that talaq divorce will take effect even though without wife‟s fault, which is contrary to the purpose of talaq itself.66

In complementing this right given to men, it is suggested that woman is given equal opportunity to walk out from the marriage through khulu‟ (divorce by redemption) if life becomes a torture and to provide a balance of right in divorce.67 This is because it is imaginable that the woman will relinquish any part of her property but with a view to her own safety and ease, which is not to be obtained but by a total separation. In principle, the wife is allowed to pay a sum mutually agreed to by the parties or otherwise fixed by the court for her release from a marital tie. Such a practice creates a venue for women to dissolve their marriage, as equally as that given to men to dissolve the marriage by pronouncing talaq. Proof of breakdown of marriage is unlikely in both cases. However, the present legislation insists on the consent of the husband, which in most cases is impossible to obtain, before the judge could actually dissolve the marriage despite the wife‟s willingness to return the payment.68

Islamic traditions disapprove divorce and encourage for reconciliation either by close family members or state appointed arbitrators. The Qur‟anic injunction is firm on this issue by stating that divorce can only begin after the disputant parties of the marriage have gone through arbitration proceedings. It declares:

“and if you fear a breach between them (husband and wife), appoint two arbiters, one from his family and the other from hers. If they seek to set things aright, Allah will cause their reconciliation”.69

This reconciliatory effort is very much encouraged in family disputes so as to discourage divorce without just cause and to avoid unnecessary litigation, which may turn out to be costly. To a certain extent, this control measure imposed by the divine

Journal, 1997, p. 238. Ziba Mir Hosseini, Marriage on Trial, A study of Islamic Family Law in Iran and Morocco, Revised Edition, I.B Tauris Publisher, 2000, p.37. 66 See Najibah Mohd Zin, Legislative Measures To Control Divorce By The Pronouncement Of Talaq In The Malaysian Shariah Courts: A Proposal For Reform, [2005] Shariah Law Report 33 67 For further reading, see Najibah Mohd Zin, Balancing Wife’s Right To Divorce: A Study On Applicable Law In Malaysia On The Right Of The Wife To Divorce By Khulu’ (Redemption) [2007] 3 Law Review 490-504. 68 See for example Islamic Family Law (Federal Territories) Act 1984, section 49 69 See the Qur’an, 4:35 legislation works beautifully and effectively in cases where both parties are willing to compromise. Otherwise, divorce will be the last solution.

Despite the fact that the general rule of Islamic law allows for a man to pronounce talaq against his wife, at the same time Islamic law also prescribed methods for married women to end their marital relationship. The terms like khul‟70, ta’liq71 and fasakh72 are commonly used to indicate various methods of divorce where grounds for each of those are well prescribed by the Muslim jurists and have been adopted in many Muslim countries including Malaysian legislation. Unlike talaq, the other types of divorce require judicial sanction once the petitioner can prove that the marriage has irretrievably broken down. The exception, is in the case of khulu‟, if initiated by mutual consent of the parties or by the wife alone. In countries like Syria and Bangladesh, women are given the right to divorce the husband through talaq tafwid where the husband at the time of marriage can delegate his right to his wife to divorce her with judicial sanction. The two states legalised such practice by inserting such provision in the certificate of marriage.73

Women and Custodial rights

The primary source of Shariah law does not specifically mention that the mother shall be preferred to the father when custody is in issue. However, it can be inferred from Qur‟anic verse which states:

The mother shall give suck to their offspring for two whole years, (that is) for those (parents) who desire to complete their suckling.74

The effect of the above quoted verse has influenced the jurists ruling to conclude that the custody of the infant should automatically go to the mother, provided that the

70 Divorce by redemption where the wife will pay for her release. The amount is traditionally based on the amount of mahr (dower) 71 The application for divorce by the wife upon breach of stipulation or conditions made at the time of the marriage. For example, in the Federal Territories, the conditions read: I do solemnly declare when I leave when I leave my wife (the name of the wife) for four months Hijrah continuously or more voluntarily or with force, and I or my representative do not give her maintenance for such period whereas she is obedient to me or I cause hurt to her person, then she makes a complaint to the Shariah court and if found by the Shariah court to be true, and she gives to the Shariah court which received on my behalf a sum of one ringgit, then she is divorced by talaq khul’i. 72 The application for divorce by the wife based on stipulated grounds as outlined by the Muslim jurists. In Malaysia, grounds for fasakh are comprised of opinions from various Muslim schools of law. Those grounds include failure to provide maintenance, impotency, insanity or any loathsome diseases suffered by the husband. 73 This information is obtained from a client who attended the Syariah legal Clinic in Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia where the writer is a panel member. For further information, see also Ashgar Ali Engineer, p. 68. 74 The Qur’an, 2: 233 mother is legally capable to do so, during the first two years of breast feeding where the father has no ability to hire someone to feed the child.75 According to another view, the court can force a reluctant mother to have custody of the child.76 Therefore, it can be assumed that the mother will have more priority compared to the father as long as she breastfeeds the child. However, as a matter of precaution, the Islamic law also confirms that in custody disputes, the right of the child is stronger than the right of the custodian and upholds that the child‟s welfare is paramount.77

Preference for female care is very much emphasized during the term of hadanah, defined as up until the age of seven for boys and nine for girls (or even until puberty according to some jurists).78 At this stage of a child‟s life, the priority is given to the mother on the presumption that it is the mother who knows best how to nurture and educate the child.79

The law assumes that these qualities though they may not be proportionate, will extend to the maternal aunt in the absence of the mother. This can be seen from another report where there was a dispute between three people that were interrelated to the child. When the case was brought before the Prophet, the custody was given to the maternal aunt and the Prophet explicitly stated that „the maternal aunt is in the position of a mother‟.80

The father‟s role in relation to the child remains as guardian, looking after the interests of children in terms of their maintenance, education, medication and other physical needs even though the custody is given to the mother. It is the purpose of the Shariah law that the biological parents must remain responsible for the child despite their divorce and/or remarriage.81 In cases where the father is dead or his whereabouts is unknown, the duty to provide maintenance falls on the father‟s father

75 Wahbah al Zuhaili(1996) Fiqh al Islami wa Adillatuhu, p.698 76 Ibid, this view belongs to school of law while other schools of law leave it optional. 77 Ibid., p. 718 78 Ibid., pp. 742-743 79 Sunan Abu Dawud, Kitab al Talaq, Vol. 2, p. 616 80 Ibid., 617 81 See for example, Islamic Family Law (Federal Territories) Act 1983, ss. 88(2), s. 72 or his brothers or paternal uncles (male agnates) following the rule in inheritance.82 In the case of illegitimate children, the duty to provide maintenance falls on the mother, or if she cannot afford to pay, on the maternal relations83 and the state will take up the responsibility in their absence. Similarly, remarriage of the mother to a stranger does not necessarily affect her right to custody as long as the interests of the child are protected. The Prophet himself married a woman (Ummu Salamah) who had a child from her previous husband in her custody. The child remained with her after the marriage.84

Rights to private ownership

As a person with an independent identity, the Qur‟an mentions that the men will benefit from what they earn and the women will benefit from what they earn85, the property that she might receive either through inheritance, gifts, or acquired through her own efforts. She is not obliged to maintain herself or children regardless of whether the husband‟s status is rich or poor. However, if she spends for the family needs, that will be considered as a charity rather than an obligation.

This right of independent ownership is well established in the Qur‟an that states:

O you who believe, You are forbidden to inherit women against her will, and you should not treat them with harshness that you may take part of her dower you have given them.86

The above quoted verse is revealed in response to the malpractices and general traditions imposed on women in pre Islamic period,87 except for a few, which appear to be rare exceptions such as Khadijah who was a businesswoman and a wealthy person prior to her marriage to the Prophet.88 Qur‟anic injunctions further support this independent status of ownership by imposing women to pay and reward them the same when giving charity and any performance of good deeds.89 The above

82 Islamic Family Law (Federal Territories) Act 1983, s. 78(2) 83 Islamic Family Law (Federal Territories) Act 1983, s. 80 84 Al Shaukani, Nail al Authar, Vol. 6, p. 878 85 The Qur’an, 4:32 86 The Qur’an, 4:19. 87 In pre Islamic period, when the husband of the woman died, she was under the ownership of family members of the husband and subjected to inhuman treatment. See Al Qurtubi, Al Jami’u al Ahkam al Qur’an, vol.5, p. 94 88 Fatima Umar Naseef, p. 42 89See the Qur’an, 33:33; 33:35. discussion also indicates the women are allowed to seek employment though Islamic law does not make work an obligation for them. Modern research on women‟s rights argue that women should take employment in case of necessity or if there are competent women who can handle certain jobs to meet the demand of the society by benefiting from them exceptional talent in any field.90 In many Muslim countries such as Sudan, Indonesia and Malaysia, women have been appointed as judges in court and other public offices. This is in line with aspiration and the needs of the modern society that require for a wider participation of women in relevant fields especially in areas that are related to their welfare.91

Right to inheritance

As has been discussed earlier, women have been denied of many rights in pre-Islamic period including the right to inherit.92 Instead, women can be owned by man and can be inherited. Islamic injunctions forbid such practice93 and restore women‟s right to inheritance and recognise absolute ownership to such property. The Quran states:

"Unto men (of the family) belongs a share of that which parents and near kindred leave, and unto women a share of that which parents and near kindred leave, whether it be a little or much - a determinate share."94

Allah commands you as regards your children‟s (inheritance) ; to the male, a portion equal to that of two female, if only daughter, two or more, their shares is two third of inheritance, if only one, her share is half.95

In explaining the intent and purpose of the verses pertaining to the division of inheritance shares, Muslim scholars consistent that inheritance should not be viewed as a gender issue. It solely concerns with social and economic factor as well as the function of that particular sex.96 This is to strengthen the law on inheritance where the shares must be used to support those under his guardianship. Though inheritance law demonstrates some mathematical or arithmetic inequality or lack of role of

90 See Fatima Umar Naseef, p. 102 91 See also relevant provisions in Convention on Elimination of All Forms of Discrimination against Women (CEDAW). 92 Ibn Kathir, Tafsir Al Qur’an al Azim, Vol.1 p.468 93 The Qur’an, al Nisa’, 4: 19 94 The Qur’an, al Nisa’,4: 7 95 The Qur’an, al Nisa’, 4:11 96 See for example Ashgar Ali Engineer, p. 70. identicalness, but it does not mean inequality or woman is half worth of man. The rule is based on liability and responsibility of male agnates as financial provider rather than a total enjoyment to the property in which this philosophical underpinning must be regulated and enforceable in the court of law.

An examination of the inheritance law within the overall framework of the Islamic law reveals not only justice but also an abundance of compassion for woman. A full cycle of women‟s life as a daughter, sister, wife, mother or grandmother has been allotted with prescribed shares.97 In other occasion, it was reported that Muaz b Jabal gave half shares of inheritance to his sister and the other half to his daughter when the Prophet is still alive98 , presumably with Prophet‟s consent and disregarded the division by the rule of inheritance. The practice reflects a high level of understanding on the needs of family members which is the essence of inheritance law itself that is to assist rather than to impose one right over the other. This is further supported with many traditions of the Prophet that commands for the allocation of shares for the needy through other methods such as gift (hibah), will (wasiyyah) or charitable means.

In explaining the purpose of the law on inheritance, scholars argue that the divine injunction that provide for half share for women is based on the division of responsibilities and benefits according to responsibilities.99 Since Islamic law exempted women from all financial responsibilities, therefore it would justify the men to have more portion of the property to meet their financial obligations.100 These obligations include the payment of maintenance for the family, parents and parents in law and satisfy various financial needs including social and religious obligations.101 Therefore, State intervention would be necessary if the men neglect their primary duties and obligations towards the family.

Political Rights

97 See the details of allotted shares in the Qur’an, 4:11. 98 Sunan Abu Dawud, Kitab Al Faraid, Eng. Tr. By Ahmad Hassan with explanatory notes, New Delhi: Al Medina Publications 99 See Yusuf al Qaradawi, Min Fiqh al Daulah fi al Islam, Egypt: Dar al Syuruk, 1999, p. 162 100 See for example Fatima Umar Naseef, p. 180 101 See al Shaukani, Nail al Authar, Kitab al Nafakah, vol.8, Beirut: Dal Kutub al Ilmiyyah, published in 1999, p. 340 Generally, women are to be politically involved in decision making and express their opinion based on several Quranic injunctions that govern the need for mutual consultation for the benefit of the society at large.102 This participation is fundamental in Islamic political system which requires a larger participation of members in the community, including men and women. Both the Qur'an and Islamic history provide examples of women who had participated in serious discussions and argued even with the Prophet about matters that relate to their welfare or religious matters.103 During the of Omar Ibn al-Khattab, a woman argued with him in the regarding a proposal to fix the amount of dower and it caused him to declare in the presence of people: "this woman is right and Omar is wrong." 104 Quranic injunctions provide number of incidences where women have been complaining about ill treatment of her husband towards her. For example, the Qur‟an states:

Allah has heard the words of her and made her complaint to Allah. Allah has heard the arguments of both of you. Verily, Allah is All Hearer, All Seer.105

The above verse proves that the freedom to express own opinion is an established right of every women. This freedom extends to women who converted to Islam, migrated and seek refuge from Islamic country. In this occasion, the Qur‟an mentions about the state duty to provide protection for these women and compensate the non- believers‟ husband. These immigrant women are allowed to remarry and demand for their mahr from the new husband.106

A further explanation on women‟s role in public sphere can be seen from the hadith where Aishah (the wife of the Prophet) asked Prophet‟s permission to participate in , however, the Prophet replied that „jihad for women is ‟. In commenting the hadith, al Askalani mentioned that the statement does not prevent women from participating in the war, but rather the law does not make it obligatory for them.107 It can be seen that many women during Prophet‟s time, had actively involved in war

102 The Qur’an, 42:38: 3:159 103 see the Qur'an 58: 14 and 60: 10-12. 104 Al Qurtubi, Al Jami’u al Ahkam al Qur’an, vol.5, p. 99. The argument was about to fix the amount of dower and the women cited the Quranic verse forbidding the men to take back the dower after the divorce though the amount is like a mountain of gold. See the Quran, 4:20. See also Fatima Umar Naseef, p. 146. 105 The Qur’an, 58:1. 106 The Qur’an, 60:10 107 See al Ashkalani, Fath al Bari sharh Sahih al Bukhari, vol. 6, Beirut: Dar al Kutub al Ilmiyyah, 1st Edition, 1987, pp. 94-95 (jihad) fighting with enemies, nurse the sick and injured, distribute water to the soldiers and provide other assistances.108 Therefore, the rule does not indicate a total prohibition but rather a preference depending on the needs of the society.

The same applies in the context of women being the ruler or the head of the State. Many argues that the job as the head of the State may not be relevant for women relying on the physical and psychological character of women which primarily care giver that requires full attention and complete devotion.109 This argument is practically based on the hadith reported in sahih al Bukhari which states that „the people who appoint women as rulers will never be successful‟.110 This hadith as explained by al Qaradawi was narrated in a specific occasion which cannot be used for general application unless there is an explicit text prescribes for its prohibition.111 Therefore, this limitation, however, has nothing to do with the dignity of woman or with her rights. It is rather, related to the natural differences in the biological and psychological aspects of men and women unless the circumstances prove to the contrary where there is no other suitable candidate but women. However, it is argued that women can be given less strenuous positions which are not in conflict with their natural and primary roles. The practice of Umar who assigned the management role to Ash Shaffa‟ bt Abdullah al Adawiyya because of her mastery skill in writing, possessed vast knowledge and was a virtuous women.112

The above arguments mainly provide guidelines on how Islamic law regulates women‟s rights and determine their functions in the society. However, it does not indicate that the law should be applied literally and rigidly in view to the fact it has to be adjusted according to the needs of the society. Examples that have been portrayed during the early period of Islam indicate such a wider participation of women in public spheres which could be modelled upon by Muslim communities in eliminating certain cultures that lead to backwardness and oppressive towards women.

Conclusion

108 See Sahih al Bukhari, Chapter on Jihad, hadith no. 131, 132, 133, 134, 135 109 See for example Fatima Umar Naseef, p. 159. 110 This hadith is widely quoted by modern Islamic scholars. See also a discussion in Yusuf al Qaradawi, Min Fiqh al Daulah fi al Islam, Egypt: Dar al Syuruk, 1999, pp.165-6. 111 Ibid, p. 166 112 See for example Fatima Umar Naseef, p. 159 The above discussion proves that the rights of women in Islam have been given emphasis in major sources of Islamic law which signify their importance and relevancy in all aspects of life. However, in translating and applying the principles into modern realities, it has caused a lot of misconceptions due to the inability to differentiate between the needs of the texts and the existing cultures that are widely practised in Muslim societies, thus reflecting the negative treatment of Islam towards women. There are many literatures and studies on Muslim women either from the Western or Muslim authors interpreted the law in parallel to the existing cultures and traditions that are inappropriate and oppressive as if the society is the product of Islamic law rather than considering on how the law ought to be interpreted and applied. Therefore, suggestion to use contextual analysis supported by sociological aspects of the law and maqasid al Shariah (objectives of Islamic law) in understanding Islamic sources when discussing issues on women are inevitable for a fair judgment and understanding.