University of Baltimore Law Forum Volume 6 Article 14 Number 4 April, 1976 4-1976 "Your Wives Are a Tilth For You...:" Sex, Marriage and Divorce under Islamic Law T. W. Lapin Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons Recommended Citation Lapin, T. W. (1976) ""Your Wives Are a Tilth For You...:" Sex, Marriage and Divorce under Islamic Law," University of Baltimore Law Forum: Vol. 6 : No. 4 , Article 14. Available at: http://scholarworks.law.ubalt.edu/lf/vol6/iss4/14 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. of the earth, and that divorce in the Soviet Union today is much faster and less cumbersome than in any Muslim land. An Englishwoman, travelling in Egypt during the early years of the last century, remarked that, if there was a hell on earth, it was where polygamy was prac­ ticed. Hardly an objective view, it nevertheless deserves some examina­ tion. Before becoming dewey-eyed over the thought of innocent young girls being delivered into a living death in the harem of a sex-crazed sheikh, a cursory glance at the intricate and eugenically sound Islamic prohibitions on consan­ guinity, forced and arranged marriages, etc., is in order. Muslim marriages are, in contrast to the sacramental ritual to which we are accustomed, essentially civil contracts, grounded upon the mutual consent of both bride and groom and endowing each party with obligations and benefits, as well as remedies for what - for want of a better term - might be called "breach of contract." The Muslim hus­ band acquires no further rights to his wife of her property than those stated in the marriage agreement, the wife in turn reserves an absolute right in properties acquired by her both before and after the marriage; and, in addition, receives the right to a distinct lien upon her hus­ band's property for her prenuptial "meeting of the minds." .(N.B.: Islamic law gave equal rights of inheritance to minor, acted to encourage American women long before that concept was "Your Wives lawyers and prospective lawyers to look dreamed of in Europe). past the boundaries of religion, national­ Arranged marriages are still common Are a Tilth ity and geography in an effort to under­ in many parts of the Islamic World but stand and appreciate the culture of a vast this system is not without its checks and For You ... :" number of people who share this planet balances. As marriage is regarded as a Sex, Marriage and Divorce with us. contract, it can be entered into only by under Islamic Law those capable of entering into any other by T. W. Lapin T a us in the West, marital processes in type of binding agreement. Adult men the Muslim World conjure up images of and women can contract marriages on harems and qUickie divorces. While it is their own, as long as the marriage is This is the last in a series of three arti­ true that polygamy (the practice of allow­ properly witnessed. Where minors are cles in which the author has endeavored ing a man more than one wife), and concerned, marriages may be per­ to introduce to his colleagues some as­ comparatively facile divorces have been formed by the minors' guardians on be­ pects of a legal and philosophical system ' common in Islamic countries for cen­ half of the minors, with the minors retain­ very different in form, but similar in spirit turies, it is well to remind ourselves that ing an option, on attaining maturity, to and background to our own. It is hoped for millenia polygamy was the norm, ratify the contract or repudiate it. This that these articles in some way, however rather than the exception, in most parts practice is called "khair ul-Bulugh." THE FORUM In regard to marriageability, women tivities are looked upon as rather harm­ are certain prohibitions placed upon are classified into four categories: 1.) less, women being regarded as simple these relations. Coition is forbidden duro Adult women who have previously been creatures who should be allowed more ing the time the wife is menstruating; married, in whose case a marriage with­ leeway in their emotional conduct than is after childbirth until the stoppage of out their consent is void. allowed a man. Besides, sexual contacts blood, nearly up to the fortieth day; dur­ 2.) Adult virgins, who - according between women were considered a via­ ing the hours of fasting during religious to most Islamic sects - must consent to ble safeguard against the "contaminat­ holidays; and after a man whips his wife the marriage before it becomes lawful. ing" results attendant upon illicit sexual (which he should not do unless she de­ 3.) Minor girls previously married. relations with men. serves it). Most Islamic sects hold that their guar­ The Biblical story of Sodom and The introduction of Western ideas of dians may arrange marriages without the Gomorrah made a deep impression on birth control into the Islamic World pro­ consent of the girls. the early Islamic jurists. Among the say­ duced no end of disputes. Generally, 4.) Minor virgin girls, whom all major ings attributed to the Prophet Muham­ birth control was forbidden under Is­ Islamic sects hold are under the authority mad are: "Whomsoever you find doing lamic law, the idea of marriage being to of their guardians, who may marry them the deed of the people of Lot, kill the produce children. There were off almost at will. "In the case of [an doer and one on whom it was done;" exceptions to this flexible rule, based adult] virgin, silence before the witnesses "Verily, the most fearful of what I fear principally based on ill-health of the wife is a sufficient indication of consent; while over my people is the action of the after too many or too frequent pregnan­ in the case of a widow or divorced wo­ people of Lot." Prohibitions not­ cies. The accepted method of birth con­ man, express consent is necessary." withstanding, homosexual activity by trol under the appropriate conditions As previously stated, a minor girl given both genders was, and is, widespread was" 'azal" (coitus interruptus). The re­ in marriage has the option of repudiating throughout the East. lative merits of birth control have that marriage upon attaining legal matur­ Bestiality is likewise stringently forbid­ triumphed in the Muslim nations to the ity, i.e. puberty. There is one exception den, as another saying of the Prophet extent of being a national policy, as in to this rule: a girl given in marriage by her evidences: "Whoso comes to an animal Egypt and Pakistan. The .controversy father or grandfather may not revoke the [with lust], kill him." (But cf. the rural which arose in the Arab World after the marriage. But if it is recognized that the Turkish notion that it is only animals that introduction of population planning en father or grandfather of the girl arranged one eats which are under the ban). Anal masse seem almost humorous when one the marriage with evil or foolish intent, coition with women is also forbidden, remembers that the Arabs invented the the contract may be declared void by the and it is recommended that a man thus IUD almost two thousand years ago. Of minor herself. If the girl is a virgin, her re­ caught in the act be killed. Vaginal coi­ course, it was used only on camels and pudiation of the marriage contract may tion, on the other hand, is encouraged, assorted other beasts ... be either express or implied, and must with any and all positions being deemed Until comparatively recent times, only be made immediately upon attaining legal. Before commencing intercourse it the husband could initiate divorce pro­ legal age and before consummation of is required of the man and woman that ceedings under Islamic law. Times have the marriage. In the last instance, a de­ they recite, "In the name of God, the changed to the point that today, in many cree of divorce is required. Almighty and Great. God is most great, Muslim countries, a woman may divorce A Muslim is forbidden by law to marry God is most great!". As a precaution her husband on virtually the same certain women: idolatresses, his mother, against the malicious "jinn" ("genies") grounds previously open only to him. his grandmother, his sisters; his paternal who love to loiter about thresholds, The finer points of the law vary from aunts, his maternal aunts, the daughters toilets, baths, and marital beds, it is re­ country to country: in Egypt, for of his brothers or sisters, his foster sisters, commended that the couple recite, "0, example, a woman may divorce her his daughters-in-law, and all married God! Protect us from the Devil, and keep husband only on the grounds of "excess­ women. The grounds for this prohibition the Devil away from what Thou hast ive" beating, impotence, or for having a may be divided into the categories of provided us!". disfiguring or disgusting disease. consanguinity, fosterage, and affinity. It During intercourse the couple should In the classical style, a Muslim hus­ is further forbidden that a man marry not face towards the west. When the band had only to say to his wife, "I di­ two sisters at once; moral considerations man ejaculates, he is to think of the fol­ vorce thee, I divorce thee, I divorce aside, that could prove exhausting.