WOMEN’S RIGHTS IN ISLAM

Protected or Subjugated? :

M.Haris Z Deen, Ph.D., MBA., BSc., LLB (Hons)., FRICS

Against this background the question whether Muslim women have any rights at all has been questioned by women’s rights lobbyists world over. They continue to target Islamic values in respect of treatment of women. The areas of contention that such protagonists highlight in support of their case are:

a. Men are allowed to marry four women at any one time while women do not have the same privilege under Islam;

b. Inequality of the evidential burden – the evidences of women are worth half that of men;

c. Inequality in division of inheritance – women getting less than men under the Shari’ah;

d. The pressures brought upon women if they have to bring cases against men or their husbands by male dominated courts;

e. Segregation of women from men in public or private gatherings;

Concerns aired by Baroness Cox an independent British peer when she introduced a Private Members Bill in the UK House of Lords to ensure that Shari’ah tribunals and councils in Britain operate within the law and do not form a parallel legal system within the UK contain some of the issues I have listed above.

When presenting the “Arbitration and Mediation Services (Equality) Bill, the Baroness expressed the particular concern that women are being discriminated against under Islamic law and deprived of their legal rights. The same arguments were more or less used by former Canadian Premier Dalton McGuinty when he yielded to pressure from women’s rights movements and other political opportunists to introduce the “Family Statute Law 2005 Act” to curb the settlement of Muslim family and matrimonial disputes under Canada’s existing Arbitration Act.

It is not my intention to discuss the UK Bill or the Canadian Act, but to discuss the concerns expressed broadly in terms of the points I have listed above. It is important to understand the genuine concerns about gender inequality between men and women in Muslim societies. In analysing these points in the context of the Qur’an and the teachings of the Prophet Muhammad (PBUH) it is important to stress that God forbids compulsion as contained in the Qur’an that “Let there be no compulsion in religion” (2:256). As much as there are laws, rules and regulations that are to be observed if one adopts to live in any country or join a club or association, Islam has its own code of conduct for one who wishes to be a Muslim.

A person can be a Muslim or a Non-Muslim that is a free choice. Being born into a “religion” similarly does not mean that the person is compelled to adopt the parental religion. They have the choice of continuing in the religion of their birth or to embrace some other faith or even to be atheists and reject all religious beliefs.

If however one desires to accept Islam or (if born to Muslim parents) to remain as Muslims as their freely chosen religion, they will have to strictly follow its rules and the required code of conduct. In a long Hadith narrated by Abu Hurairah (RA) recorded in Sahih Muslim, the Prophet Muhammad (PBUH) is reported to have pointed to his heart and said “Taqwa is here”, meaning righteousness is in the heart. God emphasises in the Qur’an that “And whoever seeks a religion other than Islam, it will never be accepted of him, and in the Hereafter he will be one of the losers” (3:85)

Keeping these factors as the basis, let us examine the points (a) to (e) which I have listed in the opening statement.

Permission for polygamy Not for Polyandry

If one reads the Holy Qur’an in the correct context, God in his divine wisdom did not grant Muslim men the carte blanche right to marry more than one woman willy nilly. The Qur’an permits Muslim men to marry upto four women under certain circumstances and strict conditions. This has been ordained clearly to dignify the status of orphans and for protection of women. The Qur’an affirms this as follows:

“To orphans restore their property (when they reach their age). Nor substitute (your) worthless things for (their) good ones; and devour not their substance (by mixing it up) with your own. For this is indeed a great sin. If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two or three or four, but if you fear that you shall not be able to deal with them justly, then only one, or that which your right hand possess. That will be more suitable, to prevent you from doing injustice” (4:2,3).

Firstly, the verse cited had been revealed after the Battle of Uhud where several men were martyred leaving a number of widows and orphans. It would have been easy for those men who survived to have appropriated property belonging to the martyred men.

This being the property of orphans there must be some prescribed manner to protect these at a period of time where no laws were known to exist for dealing with any such cases. Therefore, Allah in his absolute wisdom prescribed the divine decree cited in verses 2 and 3 of Surah 3, An Nisa in the Holy Quran. Men, whether in a state of bachelorhood or even married men, might find it extremely difficult to take and care for orphans on their own. Therefore, some guideline as to the care of orphans to be dealt with equitably would be taking more than one wife who would be better suited to look after and care for such orphans.

This right of polygamy is an exception than the rule as there are strict conditions that have to be satisfied by the man before deciding on taking additional wives. Thus it is clear that polygamy (upto the limit specified) rather than being permitted is prohibited unless the man acts justly between his wives thereby protecting the rights of the wife.

That means that if a man by necessity needs to take another wife, he must in the first place be just to the first wife. He must demonstrate that he will spend time equally between the two and provide both of his wives with equal housing facilities and financial support etc. If the man opts for four wives, then he must deal justly with all four provide equal facilities without any discrimination. Thus Islam protects the rights of the wife.

Furthermore, all issues emanating from each of the wives will have similar and equal rights and in the distribution of inheritance they will all be treated equally. This is an important principle that supports the prohibition on polyandry. The man has to be completely transparent in his dealings with all the wives and the children born out of them.

Why are Muslim women not given the same privilege of having four husbands at the same time? In the first place the Qur’an prohibits a man from marrying a woman who is already married (4:24). That means a woman already married cannot take another husband. However, women have argued that this injunction will not apply if they were to marry four men at the same time. Such argument cannot be sustained because logistics of the marriage ceremony requires the marriage pledge to be given one at a time and once the first man has given the pledge the marriage is thus solemnised, then there is no way that the woman can get legally married to another man.

The Quran does not specifically spell out any prohibition. It is therefore, for women, if they want to get married to more than one man they can certainly do so, one at a time not altogether. No religion or any laws permit this. In this connection Islam has provided women the rights and benefits of a “Khul” divorce, where the wife can gain a divorce on her own right. The importance of the khul divorces to women is beautifully asserted in the case of Khurshid Bibi v. Muhammad Amin, a Pakistani case. This is one of the leading cases of judicial khul. In this case the wife applied for khul despite the unwillingness of her then husband to release her.

Judge Abdul Rahman in The Supreme Court of Pakistan decided that the application is consistent with the letter and spirit of the Quran which place the husband and the wife on equal footing and that the wife can claim judicial separation (khul) despite the unwillingness of the husband. Judge Abdul Rahman also refers to Ibnu Rushad who states that khul is provided for woman in the opposition to the right of divorce vested in a man.

Therefore it is clear that far from denying women any rights of marrying more than one husband they have that right under certain circumstances but not at the same time. The logistics of the family structure does not permit such multiple associations at one and the same time.

Another point to consider is the complexity of the family structure that would result if women were also allowed to marry more than one man. First, it would be difficult to determine the father of any children that such a woman would have. Recently, DNA testing can be used to determine this. However, it is inevitable that conflicts will arise disputing DNA test results, and some will even forge DNA results to prove their case.

Polygamy does not have this problem, because the mother can always be easily determined, and each mother is married to only one man. This makes it easy to determine with full certainty whom the two parents of the child are. Also, conflicts between the multiple husbands of a single woman would frequently turn to violence, which would likely lead to increases in violent crime. This is less common between multiple wives of a single man, because women do not usually resort to violence as quickly or as frequently as men.

Additionally, the family structure becomes impossibly complex if both men and women are allowed to marry multiple spouses. Endless chains of people could be engaged in a huge marital relationship. For example, if a man marries four women, and each of those women marries four men, there would be 21 people in this family! If those men are also married to four women each, the family gets even bigger! And this marital chain can continue with no end, resulting in a complex situation that would not be manageable.

Would all of their children be considered step-brothers and sisters? Would it be appropriate for those children to marry amongst each other? Who would inherit from whom? Clearly, the disadvantages of such a system would be immense, and would clearly outweigh any possible benefits.

Given the previous discussion, it can be seen that the basic rule in Islam is monogamy, which means that each man marries a single woman. However, Islam does permit polygamy in order to accommodate certain circumstances where it is a better option, and as a way to reduce the number of secret affairs and illicit relationships that exist in every society. Islam simply allows these relationships to become legitimate and open, if certain conditions are met, and if the rights and interests of all parties are protected.

Therefore, although polygamy is not the ideal situation and in fact may be harmful if not practiced in the proper way, Islam allows it in order to avoid the greater harm of keeping such relationships secret and illegitimate.

Polygamy protects the rights of women by giving them the full rights of a wife. Instead of being a secret “mistress” involved in an affair with a man, where the woman whom has no rights, and is in fact kept a “dirty secret” that no one is allowed to find out about, she becomes an honoured wife with all the rights and privileges that come with being a wife.

Instead of any children being "illegitimate" and having to possibly resort to the court system to prove who their father is and to get alimony or child support, these rights are protected by the institution of marriage. For these reasons, Islam regards polygamy as being preferable to adultery. So even if polygamy has many disadvantages, it is still a better option than having adultery become common in the society. This is why Islam allows polygamy but does not permit polyandry.

Inequality of the evidential burden - the evidences of women are worth half that of men;

The position of women in this regard has been completely misstated. It is true that the Quran stipulates that the evidence of two women (one corroborated by the other) is required in certain circumstances. When examined in detail, the Quranic stipulations are meant to protect women from embarrassing examinations in a court of law rather than to discriminate them.

Any evidence once corroborated needs no further examination.

The rules of evidence contained in the Quran are in respect of four specific situations as follows:

a. evidence in respect of civil transactions;

b. evidence in support of bequests

c. evidence in respect of charges against chaste women

In respect of civil transactions the Quran stipulates as follows:

"O ye who believe! When ye deal with each other in transactions involving future obligations in a fixed period of time, reduce them to writing ..................... and get two witnesses, out of your own men. And if there are not two men, then a man and two women, such as you choose, for witnesses, so that if one of them errs the other can remind her .........." (2:282)

As regards evidence in support of bequests the Quran states:

"O ye who believe! When death approaches any of you, (take) witnesses among yourselves when making bequest, two just men of your own (brotherhood) or others from outside if ye are journeying through the earth and the chance of death befalls you .............." (5:106)

And in the case of charges against chaste women the Quran explicitly states:

"And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations), flog them with eighty stripes and reject their evidence .........." (24:4)

The above stipulations in the Quran taken in the right context does not discriminate against women nor do they suggest the myth that women's evidences are worth half that of a man's in front of the law.

Hallaq (2010 - An Introduction to Islamic Law - Cambridge University Press), in his erudite exposition of women's rights in Islam, has dismissed the myth that Muslim women (or even non-Muslim females in Muslim lands for that matter) had been treated in the presence of law differently from men. Gender inequality or discrimination in front of the law has not been recorded historically. It is however conceded that 'Islamic law, reflecting the social make-up of great majority of Islamic communities, promoted gendered social and legal structures'. Also, the fact that the "court language" privileged Muslim men and Muslim men generally over Muslim women and non-Muslims is true.

Hallaq points out that yet 'nothing in this language or the court itself could diminish the rights of women or even discourage them of approaching the court, much less take away from them the full right of property ownership, of juridico-moral rectitude or of suing whomever they pleased'. This is not only true of Muslim women but is also true in respect non-Muslim women in an Islamic state, where the court considers such women "doubly underprivileged" as a result of being women in addition to being non-Muslims. These women had enjoyed the same rights and privileges in the presence of the court as those enjoyed by Muslim women.

Thus, it is abundantly clear that despite differing social and cultural factors, in front of the law, whether it be Islamic Shariáh, Civil law or common law, women have and have had equal rights as men to sue and be sued and they have not been denied access to Muslim courts in the same manner as would their male counterparts. In this respect Hallaq asserts that 'Like men, they approached the courts not only with prior knowledge of their rights, but with apparent conviction that the courts were fair and sympathetic and operated with the distinct inclination to enforce their rights'. These facts Hallaq states in his opening paragraph were obtained from court records, in my therefore these must be treated as authentic. Representation in such courts was by the Muslim women themselves at most instances and sometimes by proxy by a male relative, a servant or a business manager. Hallaq emphasises that "when they approached the court in person, they did so on the same terms as did men, and asserted themselves freely, firmly and emphatically".

The range of claims varied from civil damages, dissolution of marriages, alimony, child custody and expenses, remedies against defamation, charges against other women on charges of insolvency and physical assault. It does not mean that men did not bring charges against women and such charges included physical abuse of them by women. Thus it is clear that women enjoyed as much right as men or any other litigant in front of a Shariáh court.

Inequality in division of inheritance - women getting less than men under the Shari'ah;

The Quran provides clear and concise instructions on bequests and inheritance as follows:

"It is prescribed, when death approaches you, if he leave any goods, that he makes a bequest to parents and next of kin, according to reasonable usage. This is due from the God fearing" (2:180). Thus it is a condition that ensures that parents and next of kin who otherwise might not receive anything left intestate by the deceased are provided for preferably in a will.

Widows and divorcees are also to be comprehensively provided for as stipulated in the following verse:

"Those of you who die and leave widows should bequeath for their widows a year's maintenance without expulsion............." (2:240)

"For divorced women is a suitable gift. This is the duty of the righteous" (2:241).

Bequests and provisions in respect of widows and divorcees obviously have to be set out in a will. The Quran however provides clear instructions for disbursement of intestate property in the following verses:

"From what is left by parents and those nearest related, there is a share for men and a share for women. Whether the property be small or large - a determinate share" (4:7)

"But if at the time of division, other relatives or orphans or poor are present, give them out of the (property) ................." (4:8)

"Allah (thus) directs you as regards your children's (inheritance)to the male, a portion equal to that of two females. If only daughters, two or more, their share is two thirds of the inheritance. If only one, her share is a half.

For parents, a sixth share of the inheritance to each, if the deceased left children. If no children and the parents are the (only) heirs, the mother has a third. If the deceased left brothers (or sisters), the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts..................." (4:11)

"In what your wives leave, your share is a half, if they leave no child. But if they leave a child, you get a fourth; after payment of legacies and debts. In what you leave; their share is a fourth, if you leave no child. But if you leave a child, they get an eighth, after payment of legacies and debts.

If the man or woman whose inheritance is in question has left neither ascendants or descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third, after payment of legacies and debts..............." (4:12)

"They ask thee for a legal decision. Say, Allah directs (thus): About those who leave no descendants and ascendants as heirs, if it is a man that dies leaving a sister but no child, she shall have half the inheritance. If (such a deceased was) a woman who left no child, her brother takes her inheritance. If there are two sisters, they shall have two thirds of the inheritance (between them): If there are brothers and sisters, (they share) the male having twice the share of the female..........." (4:176).

The main objection of women is against the distribution of "twice of their share to male children". In the first place, male children have greater responsibility upon the family as a Wali Ul Amr - the main guardian and protector of the family after the father. The responsibility extends to the guardianship of all the siblings including any divorced or widowed sisters. Secondly, when the distribution of inheritance stipulated by Allah in the above verses are analysed it is very clear that females are not discriminated against and they get a substantial contribution in aggregate.

The pressures brought upon women if they have to bring cases against men or their husbands by male dominated courts:

It is a fact that women cave in to pressures brought about by the presence of men sitting in as Qadis. Thus it is argued that women are reluctant to bring in any cases of ill treatment by husbands in Islamic courts. This argument has been adequately dismissed by Prof. Hallaq cited in the first part of this article. Therefore, further discussion is unnecessary.

Segregation of women from men in public or private gatherings;

This is a personal choice. As much as there are segregated Muslim gatherings there are also many joint gatherings. There is no compulsion, therefore the claim that such segregation is a Islamic creed is a myth and has no basis. The segregation is mainly to protect women from unnecessary exposure to ogling by men.

By virtue of the above brief analysis, it is submitted that Muslim women rights are protected and Islam does not subjugate women. If that was not so, how was it possible for Mrs Khaleda Zia and Sheikha Hasina to be elected by a male dominated populace as Prime Ministers of Bangla Desh, for Megawathi Sukarnaputhri to be elected by a radical fundamentalist Muslim nation as President of Indonesia, Rafiqa Azeez to be elected and to hold the influential Ministry of Trade of Malaysia and the number of Muslim women appointed to high Ministerial and Diplomatic positions by the governments of Pakistan, Malaysia and Indonesia.

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