By: Dr. Farooq Hassan
(Synopsis of address presented at World Islamic International Awards ceremony
16th September, South hall, London, 2006)
It is my great honor to be invited here to receive the World Islamic International Award for Family from the London based World Islamic Family Coalition. As a networking coalition of Muslim NGOs our host today is involved in diverse matters including the family. This NGO is designed to provide resource services and to act as a caucus for Muslim institutions internationally. Although barely set up less than a year ago, it has begun its work with some degree of earnestness with institutions in the Islamic world. I thank the Secretary General Dr. Malik for his pioneer efforts in this regard.
But I must add that much work needs to be done by them if they have to make a mark in this field as an Islamic international NGO in Family matters. All the reputable institutions that are operating presently in the field of the family are invariably Western in origin. They are primarily organized for alleviating the misfortunes and woes faced by this basic human institution in their societies. I am not aware of a single non Western NGO in the field of the family to have embarked upon a venture such as our hosts have done with any significant impact.
I have endeavored to work in this movement to substantively (not merely rhetorically) combat, many policy and cultural issues that presently sadly exist in the Muslim milieu. My aim is to recommend appropriate improvement legal measures and to encourage the implementation of needed reforms if possible. Respectfully I am surprised for being nominated for this exclusive recognition which any Award carries! Many distinguished scholars in the Family movement are far ahead of my own humble efforts towards the goal of having this fundamental human institution gain its rightful place in the current evolution of our society’s dominating norms. Let me, therefore, have the privilege to name a few inspiring icons whose valuable time, energies and vision in this noble pursuit are apart of contemporary history of Family studies. Premier amongst such stalwarts of family protagonists being Dr. Allan Carlson of the Howard Center who has pioneered a global coalescing of thinking on this subject by convening World Congresses of Family. I am also most impressed by my learned friend Professor Richard Wilkins, who single handedly set up the foremost University related think tank on this matter when he created the World Family Policy Center at Brigham Young University
My address today to this learned gathering deals with “needed” reforms in Muslim Family laws with respect to the status of women in many Islamic societies. It is a theme that often gets neglected in the philosophical avocations of most writers on family matters. The Doha Conference of 2004 was prima facie held in an Islamic cultural environment. While providing tremendous momentum to this thematic topic in international dynamics and at the UN, nothing specific emanated from its impact for the “reform” aspects to which I refer. The matter of “reforms” in the exiting laws relating to Family particularly with reference to the status of women in Muslim countries thus needs a focused attention.
What is needed therefore is a carefully devised legal endeavor to find out the broad areas of concern to the affected or concerned people or institutions. Then we must examine how it is best to remove such perceived deficiencies. Ex hypothesi this can only done by trained constitutional and comparative lawyers since both the identification of the malaise and its correction requires a priori expertise in comparative legal systems
I have myself written over two dozen articles and given interviews on many aspects of this subject which are available on the internet and in the press op ed columns of newspapers in countries as diverse as the US, England, India, Gulf States and Pakistan. In these works I have already critically and hopefully objectively, analyzed various aspects of international legal matters and issues of general jurisprudence associated with the institution of the Family. I have respectfully pointed out in these works the glaring omission of any substantive or serious analysis of issues relating to the status and position of women within this larger institution of the Family within the Muslim communities. Despite the lofty doctrinal importance of women in Islamic theology, practically and as a cultural reality their status requires substantive improvement within the ambit of even the traditional family.
Recently in my address at the World Family Center of BYU Law School in Provo, Utah, I delivered a similar message. In this address which essentially dealt with the Family Conference in Doha I emphasized the philosophical need to focus more deeply on women issues while talking of this subject. This was respectfully by me submitted as nothing was really canvassed on this issue in this otherwise landmark international conference.
Protagonists have been evidently enthusiastic about the process regarding the recognition of the Family as a fundamental human institution generated at the Doha International Conference in November 2004. Significance of what was achieved at the Doha Conference continues to attract attention from legal scholars and journalists of note with startlingly different evaluations of what Doha conference actually or purportedly achieved. Any one interested in this matter will thus find a fair deal of research material on this matter. Islamic counties generally have supported as a policy, pro-family activities at the international level.
Debates within Islamic Thinking on “Reform”?
Throughout its history Islamic faith has been both deeply cherished and misunderstood for its emphasis on enveloping the entirety of a person’s life with its normative structure of rules of conduct and precepts. Amongst the major norms of such expected behavior are those that are devised to apply to the institution of the human family, children and women. Simultaneously, the jurisprudence and moral philosophy of the faith also acutely focuses on the larger matter pertaining to the subject of human rights of mankind.
But in recent times there is an ostensible tussle in progress between the conservative elements of such societies and the advocates of modernistic attitudes. The modernistic thinking to which I refer is grounded on secular postulates which “indicate” that some traditional norms of accepted behavior qua the Family are in “violation” of the current relevant norms of the philosophy of human rights. It is also maintained by other elements, in particular the governments in important Islamic states, that it is necessary for economic progress to “modify” previously held views on issues of contemporary significance.
Reference can made as an illustration to “reproductive health” which means family planning. For instance as Rapporteur of two major international UN sponsored conferences on the “rights” of the Family and the Child in Islamabad last May in 2005 I frankly reported that “rules” of “law” and not merely soft international law was being made by Islamic nations and major Asian countries. The areas that were focused upon pertained to “rights” that were of “reproductive” kind and those loosely referred to as “spanking” practices. I think that there is little doubt that most Muslim countries are in progress towards embracing “family planning” practices. In countries such as Pakistan or Turkey where there is very vocal presence of conservative Islamic environment, the State apparatus is already busy devising strategies to counter such opposition. In Pakistan, as I have reported in my Report on the May 2005 UN Regional Family Conference, the Federal government obtained “fatwa’s” from pliable Muslim clerics of nondescript note, to vouchsafe the absence of any such dogma in the Shari’a on it.
Regrettably the Western NGOs, who are otherwise very active in such matters, did nothing of any note to counter this kind of propaganda. Literally there was little help or support from such friendly NGOs to guide us in third world countries to devise modalities that would go some way to meet the policy declarations by the governments of several Muslim and other Asian countries. I do not know exactly why, but could it be that it was unconsciously thought as such developments had little impact in the West, it was best to politely ignore such Declarations? 
Such secular attitudes are on the other hand manifestly evident in the policies and state declarations of several advanced Western countries. It is equally obvious that to exert friendly pressure on many such Islamic nations, mostly belonging to the developing category, substantial investment of funds is in progress. This is bound to affect the mores of such societies while certainly influencing their governments. Compared to such current “liberal” Western thinking on moral issues concerning the Family, the humanitarian postulates and dogmas of Islam are heavily grounded on principles of high morality. It is this quality of fierce attachment to these ancient teachings that keeps the Islamic family together in almost the same moorings with which it began its traditions hundreds of years ago. But are the about to change? What effect did the Doha Declaration have on such an evolution? I will answer such inquiries after noting the fundamental norms of the basic principles of this topic.
But I must hasten to add that any dilution in the ethos of traditional Islamic norms would be a disturbing to the religious practices of its millions of adherents. Such thinking would also affect the peoples of other Nations that direly need such ethical mores to keep afloat their own cultural value systems in an international social milieu rapidly losing such values in the wake of contemporary “progress”. But regrettably, as it would be noticed, such “dilution” within Islamic countries seems already in process.
Islam’s contributions to this subject are a living tribute to the strength of the Faith to protect and enhance the status of the Family as the crucial nucleus of our civilization’s civic life. The Quran contains many direct commands for the purpose of keeping the Family in tact. Such mandates apply regardless of geography or ethnic specificity as such instructions are binding on everyone. Furthermore, apart from ethical and moral injunctions, Islamic compendium of teachings on matters connected with the concept of matrimony and man-woman relationship, have a codified criminalization of laws relating to what may be described as wrongs qua this status of traditional marriage.
As such, same sex union, howsoever described, will be a serious legal and not merely a moral objectionable conduct in an Islamic society. In the Indian Penal Code 1860, initially drafted by Lord McCauley, vide Section 377, this “deviant” action is said to be an “unnatural offence.” This is still the position in Pakistan, India and many countries of the erstwhile Commonwealth counties where the said Code has been adopted verbatim. Hence both by the weight of the teachings of Islam and the contents of the prevalent legal systems, philosophically and by jurisprudence, Muslim countries would seem to stand for the institution of the traditional Family.
Even a cursory look at the performance of Muslim states in the international arena will provide us with over whelming evidence of this attitude and commitment. In the General Assembly of the UN whenever it mattered, it was the Islamic states that gave the required numerical support to defeat the agenda of activists of anti Family protagonists.
Most recently in the UN Human Rights Commission meetings in Geneva, it again fell to the Muslim countries to defeat a highly organized move of the biggest coalition of Gays, Lesbians, Bisexuals and Transgender group sever gathered at a UN meeting to cater for the adoption of the “sexual orientation” resolution which, if adopted, would wreck the steadily achieved advance in pro Family world-wide efforts. This impressive contribution began at the end of the 59th Session of the UNHRC in 2003 when five Islamic countries led by Pakistan (the others being Egypt, Libya, Saudi Arabia and Malaysia) after delaying a vote by moving several Amendments had the Resolution debate adjourned to 2004. In 2004 during the 60th Session once again it fell to the Muslim countries to force Brazil on the 29th March to seek postponement of this measure until 2005.
I feel that all these matters from a normative perspective and of state practice deserve to be fully noted, chronicled and duly analyzed. My standard legal texts constitute a kind of work in this field which would be helpful for those trying to go deeply into a number of issues raised in today’s address. But it would be helpful to see the extent to which such inherited values of the Muslims as contained in Shari’a have been really implemented; a brief reference to the Islamic position on family needs therefore a priori re-iteration.
Islamic normative conceptions on Family
The first question that needs some explanation from me would be the scope and vires or validity of the Shariah laws. Islamic Law, or Shari’a, is derived from the Quran and the Hadith. The Quran is considered to be direct revelation from God through Muhammad, the Prophet of Islam. The Quran contains Meccan Surahs that were revealed from the year 611 A.D to the year 622 A.D. The Medinan Surahs were revealed from the year 622 A.D until Muhammad’s death in the year 632 A.D. The Hadith are traditions, revealed by Muhammad, not God, but are considered divine since Muhammad was the Prophet. It is important to note that Hadith are described as authentic, inauthentic, or even weak, depending on who they came from
In the context of Islamic family obligations this status is defined as “a human social group whose members are bound together by the bond of blood ties and or marital relationship” The Quranic injunctions created the basic framework of such obligations. The major thrust of such injunctions was to ameliorate the position of women and to grant to daughters rights and privileges ignored by the ancient customs which were present at the advent of Islam. “These Quranic reforms, as well as customary practice, constitute the substance of classical family law” in Muslim philosophy.
The basic perception of marriage, which is considered to be the foundation of family life, is in the nature of “the strongest bond” that exists in human relations. Surah 4: An-Nisa allows marriage of choice but forbids husband from inheriting the wife’s property against her will. According to Quran men and women have equitable and proportionate rights and responsibilities in a family. In order to preserve the survival of the family unit and to ensure the viability of the institution it has been provided that the weaker elements in this unit have higher levels of protection. As such the Quran allows the rights of women not only in the context of marriage, protection from slander, maintenance, and care of children.. The cumulative quintessence of these diverse injunctions regarding the family as a social unit signifies that laws of Divine origin are in place to ensure the integrity of this unit.
In this scheme of the preservation of the family as a unit in a society described briefly above, the Islamic message seems to be to: -
Make marriage based on free consent.
Preserve the economic viability of the wife.
Make the off spring, with great emphasis on the females of this union, an integral part of this unit in which they not only owe various duties of loyalty and respect to their parents, in return the parents must exert their best moral influence on them..
The position of women is specifically deserving of attention as it is enjoined upon Muslims to care, cater and look after kindly the females amongst them
In light of such lofty principles, it must not be concluded that such indeed is the practice amongst Muslims generally. This is sadly not the case at all. I am myself an ardent critic of Islamic leadership because of its visible failings on many matters that are of significance to Muslims as human beings. So what areas of Family require “reform”? Does it mean to bring at par with tradition if it is short of that level? Or does it mean reformative recourses in fields that are established but “need” change to be in accord with our current notions of fairness and justice?
Needed legal “reforms” in Islamic countries?
Islam’s message on the Family is prima facie very comprehensive yet from contemporary Western societal standards in a number off areas somewhat austere and even considered against “liberalism”. While it is not really possible to give an exhaustive enumeration of such illustrations, I will endeavor to point to the major failings in which “reformation” from Islamic societies would be most welcome.
The oft quoted instances of critiques offered on Islamic conceptions as generally perceived relate to:
(2) Mistreatment of wives,
(3) Discrimination of females in the Family,
(4) The rights of wives’ in marriage relating to divorce, inheritance and evidentiary value of women’s testimony, and
(5) The notion of “equality” of the two spouses of a marriage.
In all main these categories requiring “reforms” is thus manifestly the case of the plight of women within the traditional Muslim family.
Other major areas requiring attention would be the following.
(1) Under the Shiite laws, there is even the allowance of a “temporary marriage” known as “Mutaah”.
(2) Domestic violence is another horrendous phenomenon that needs current attention of both scholars and governments.
(3) Then in the field of children’s rights there is the disturbing practice, clearly against normal conceptions of current thinking on human rights, as being considered as a part of the father’s patrimony and expected to contribute financially to the household. However female off spring in many traditional Islamic settings traditionally remain in grave perils. I have no doubt that such a sorry state of affairs is on account of local customs rather than Islamic predilections of the society. Yet serious concern should be given to such problem areas as found to be creating such an unhealthy situation.
It is beyond the scope of an article of this length to analyze all such areas as have been identified above. Some of these critiques are fairly raised whereas some are exaggerated or even misconceived. I shall thus focus on only some of these issues raised by me above per se as fundamental core areas requiring our “attention”.
I am not aware of any actual statistics that can be used for using as criteria for selection of the areas requiring our focus. In the Islamic world there are few institutions of this kind to undertake any such research. In the Gulf region, however, there has been recently established one such center that is reportedly analyzing such kinds of data and statistics. This is the Batelco Care Centre for Family and Violence Cases, Bahrain. Since it was formally opened in August 2005 this support centre has reported just over 900 cases of serious violence within the Family until May this year. Almost 800 cases of family violence were sadly, however, that of women beaten or abused or battered or at least publicly humiliated by their husbands. Wife beating is most regrettably generally acceptable as it is considered a common practice in those societies.
The Chairperson of this Center noted recently, when talking to the media including the TV journalists:
“According to the statistics of our reported cases, there were 61 cases in January, 79 in February, 179 in March, 51 in April and 109 last month,” This is very alarming because these are only the reported ones. Just think of all the cases that are not being reported. Most of our cases are Bahraini women who are being very badly treated by their husbands. The children growing up in such environment will be affected, particularly their psychological balance in the long run.”
It is a disturbing state of affairs. Most painful, however, is the realization that such reporting in Bahrain or elsewhere in Muslim countries is not undertaken by Family organizations per se, but by pro-Women mostly Western NGOs. Realizing the special position of husbands in a Muslim societal milieu, the Center provides extra-ordinary counseling to the husbands by preaching the virtues of decency, toleration and kindness to their spouses. It provides, on the other hand, help to victims with relaxation therapy, hypnotherapy, cognitive therapy, counseling and anger management therapy.
It is very comforting to note that in dissemination of appropriate information, this Center has already provided public awareness programs including several on marriage counseling on the local television. There are specific programs for husbands to impart to them the highly respectful nature of respect owed to their spouses.
Another area of family laws which often have received tremendous notoriety in non Muslim cultures but is always “hidden” in the Islamic environment itself is the pernicious nature of ascendant male societal position in a marriage. No satisfactorily explanation has been forthcoming as to why this state of affairs is still permitted by different Islamic cultures to continue to exist. What is the foundation of Family? Without question it is Marriage based on equality of significance of both spouses.
While foundations of family remain the same through out the world, the super structure that sustains the existence of such fundamental and universal institutions can be different in diverse regions. Social values provide the foundation and foundation should be made stronger so that the super-structure can persist longer. For example justice should be foundation of all laws of marriage; all its appurtenant legal rules should be equally so. If this basic premise is correct as it seems to be self-evident let me focus on the following issues.
The broad subject pertains to Islamic classical laws and the current positions with respect to divorce and the allied question of plurality of wives in Muslim countries. Regrettably polygamy has become more important in Islamic world than the concept of justice emphasised by the Quran. Multiple wives have justified even if it violates concept of justice which is much more fundamental than polygamy. Thus the question of injustice to such wives is very important today but consistently ignored.
Philosophical foundations of Islamic Norms
The Islamic world began to see this problem around the 1960s, when most of the contemporary Islamic countries emerged. The gender relations in medieval ages were very different from what they are today. The Shari’a laws formulated in those days were based more on the prevalent societal gender relations than on a basis of transcendent concept of gender relations in the Quran. Practical customs came to be regarded as religious norms to justify local prejudices and cultural habits. This led to a fairly widespread impression in advancing a thesis of Islam encouraging a trend of male dominated family structure. It did exist in this manner; but not for reasons of Islam but by custom.
Hypothetically, Islam could have ignored gender relations obtaining in early days of the advent of the faith. But it attended to the gender question in marriage. This was done not merely on a realistic level but also on moral and transcendent planes. Importantly the Quran made marriage a contract between husband and wife. Legally this made it clear that in matters relating to matrimony, male domination was not accepted and women had been given a right which in all respects was equal to that of men.
But of equal significance is to realize that the Quran greatly improved upon the tribal customary law. While adopting it on realistic ground it made humane additions for compliance amongst the Muslims. In tribal customs of that age marriage was totally heavily weighted against woman. She could not negotiate her own marriage except through the agency of her male guardian who happened to be her father or grand father or elder brother or uncle in the absence of her father. The institution of marriage guardian (wali) was very fundamental in tribal customary law.
But Quran does not mention the institution of guardian in marriage and gives this right directly to women. Secondly, meher (dower) amount was negotiated by the guardian and was taken by him whereas Quran gives woman the right to negotiate meher amount and it is she who is entitled to it (and not her guardian). Invariably in most Islamic societies where it is practised this seems to be the case.
Thus important reforms are needed to have the law of marriage more just and convey the essential moral and ethical foundations of a marriage. The Quran elevates marriage to a higher moral plane, despite its basic contractual nature, by invoking moral values like love and ihsan. In verse 7:189 the Quran says:
“It is He Who created you from a single soul
and of the same did He make his mate,
that he might find comfort in her,
(in love). So when he covers her she bears a light
burden, then moves about with it.
Then when it grows
heavy, they both call upon Allah, and pray to their Lord:
if Thou givest us a good one, we shall certainly be of the grateful.”
Thus husband and wife are to find comfort in each other to cherish and have happiness. This verse clearly refers to woman getting pregnant and then both pray to Allah to give them a good child (salih). Thus marriage is lifted to a moral plane and made to develop firm bonds so that husband can find solace in wife and together create good children to perpetuate human progeny. Marriage is thus not merely for satisfying sexual urge but much more than that, a bond of love and an instrument for perpetuating human progeny. It is thus well to keep in mind that the production of children remains an essential and integral part of the process of marriage and having a family.
Thus marriage, according to the Quran, is both a contract and also a moral bond. Quran says in 30:21:
“And of His signs is this
that He created mates for you
that you might find tranquillity in them
and He put between you love and compassion.
Marriage without love and compassion cannot be lasting bond between husband and wife. It is the task of Muslim governments to create socio-economic conditions to ensure that the ethos of the Quran in such matters is respected. Muslim countries are faced with huge reconstruction to even begin to think of making such a state of affairs prevalent. So far I do not see any of the 60 Muslim nations that exist approaching any thing like the levels of desirability needed to move ahead with satisfaction in this regard.
We have now to see the added and difficult subject of eventualities that regretfully arise in all societies. The Quran does not overlook the situation in which in a marriage a man and woman can no longer carry on with each other and divorce becomes necessary. Hence it approves of divorce in such situations and here contractual nature of marriage comes to their help. In some religions marriage is treated as sacramental and thus the bond can never be broken.
That makes lives of both spouses somewhat difficult to endure. The Quran while treating marriage more than contract, does permit divorce. But it does not make divorce a bitter rupture between husband and wife and advises man to live with her in ma’ruf (kindness) or leave her with kindness, not with bitterness. Thus whatever meher or gifts he has given to her, become her property and cannot be recovered. Thus verse 2:231 says:
“And when you divorce women
and they reach their prescribed time
then retain them with kindness or set them
free with kindness
and retain them not for injury.”
Thus we see the moral plane to which marriage and divorce have been lifted by the Quran. Regrettably over several centuries of Muslim development of jurisprudence, most leading schools of law overlooked this moral aspect of marriage and divorce as ordained in the Quran. It is maintained by many such jurists that divorce can materialize by utterance of a word a number of times! Such interpretations were made that allowed marriage to be broken by pronouncing thrice the word “talaq” (meaning severance) even if it uttered in anger and bitterness. It is my view that such a belaboured interpretative approach and interpretation misses the moral nature of Quran on divorce as I believe that triple saying of divorce has no place at all in God’s scheme of this matter.
Indeed so detailed is the treatment of this topic in the classical Islamic theology that it can said that God created the first known system of arbitration in this respect. Indeed the Quran actually instituted the institution of arbitrator to make living together or separation a humane and a healing process. The arbitrator could look into issues after hearing from man’s and woman’s side. Thus in verse 4:35 the Quran says:
“And if you fear a breach
between the two
appoint an arbiter
from his people
and an arbiter from her people.
If they both desire agreement
Allah will affect harmony (reconciliation) between them.”
Thus the Quran does not like a sudden rupture of relationship between husband and wife in a state of anger, but requires harmony and agreement as far as possible. This purpose is totally defeated by allowing triple divorce in one sitting. Divorce should not be seen merely as a breaking of contract in an arbitrary fashion but bringing about separation as a last measure after all efforts to bring about harmony between the two. Thus any law of divorce should be based on moral approach of the Quran. Thus marriage and divorce should not be treated merely as legal contract to be entered into and broken at will without any regards to moral values involved in these acts. Unfortunately as I see it the Western jurists and legal systems treat marriage and divorce as strictly legal matters devoid of moral values.
Pakistan became the first Islamic country in modern times to effect such changes in the positive laws. By enactment of West Pakistan Family Laws Ordinance, 1962, important changes were effected. Both Quranic aspects referred to above were incorporated in the statute, viz: divorce had to be made in written form with copies supplied to the Union Councils. Then it created official Arbitrators to accomplish the task of reconciliation. Not only it had the oral triple talaq law redundant but also created the institutions of Arbitrators at all the basic civic levels of governance.
The next point requiring my careful attention is the misconception that legally speaking Islam gives a secondary place for women as it relates to wives and daughters. Similarly, Quran treats gender question not merely as of husband and wife as two partners having different sexes but as human and spiritual partners. Functionally at a realistic level some jurists misinterpret to contend that women have a subordinate position. This verse 4:34 says:
Men are the protectors
And maintainers of women
It is my feeling that it is only descriptive of a world wide economic and societal fact and not the enunciation of a religious dogma. At deeper and spiritual level gender relationship is described further in the verse 33:35. This verse treating the question at spiritual level says:
“Surely men who submit and the women who submit,
and the believing men and believing women,
and obeying men and obeying women,
and the truthful men and truthful women,
and the patient men and patient women,
and the humble men and the humble women,
and the charitable men and the charitable women,
and the fasting men and fasting women,
and the men who guard their chastity
and the women who guard,
and the men who remember Allah much
and women who remember,
Allah has prepared for them forgiveness and a mighty reward.”
Thus gender relationship between a husband and wife is on a spiritual level and is quite equal and without any discrimination in its evaluation. The nature of relationship in the verse 4:34 is purely functional and therefore, not applicable permanently. It will change with the function but the relationship described in 33:35 is on an elevated and spiritual level and permanent. Thus men and women are equal in every respect in the eyes of the Quran. Her humanity and human dignity in no sense is lesser than that of man.
The Islamic jurists, it is argued by some thinkers, treated women as unequal on the basis of certain verses like she being half witness or she receiving half the share in inheritance. Such verses in no way prove her inferior to man as far as her human dignity is concerned. It would be out of place to discuss in this presentation this exhaustive topic of economic laws of Islam on such issues. But I must say that there is great misunderstanding about these verses also. It is wrong to designate her as half witness as it pertains only to financial matters as she had no financial experience and moreover it is not at all obligatory but recommendatory in nature. Today women also are financial experts and head even banks, corporations and even have risen to be he heads of governments. Therefore why or how can women are treated as half witness in financial matters only? There is manifestly merit in the argument that the verse was of recommendatory nature in conditions of those times. In no way it can be cited to prove her inferiority.
Some Islamic jurists have treated women as unequal on the basis of certain verses in which it may be well perceived as being treated as only as a “half witness” or she receiving half the share in family inheritance. The reasons for such legal postulates are available but it is not necessary to be expounded here. It is sufficient to say that these verses in no way prove a woman’s inferior status to man. Those verses are basically functional and were articulated for guiding a primitive society with some moral criteria for issues of evidence and family distribution of wealth. Without such guidelines, women legally had nothing by way of rights of any kind. There is evidently another misunderstanding about such verses. It is patent that all such verses in the Quran are essentially recommendatory in nature and it is wrong to interpret them as utterly binding literally. Today women have tremendous financial prowess and some even head banks and multinational institutions. How can a woman be treated as half of man in all such matters involving status of significance?
To give you the best example of the pivotal position that women have come to acquire let me give you the most recent example, and that too from an Islamic country. Shaikha Haya bint Rashid Al Khalifa on 12 September 2006 took over the presidency of the UN General Assembly from the outgoing president of the 192-member body, Swedish Foreign Minister Jan Eliasson. UN Secretary-General Kofi Annan was quoted as saying it was a step “that will portray a positive picture of Arab women. There are many challenges that we need to face and with Shaikha Haya’s wisdom and cooperation I am sure many issues will be solved.” Shaikha Haya is the third woman and the first from the Middle East who has been elected president of the UN General Assembly in 60 years. Vijay Lakshmi Pandit of India was the first woman president in 1953 while Liberia’s Angie Brooks presided in 1969.
Even a lesser portion in inheritance of family property of daughters is logically no proof of her inferiority. It was entirely due to her being a non-earning member of the family in those days which necessitated her dependence on father and on husband after marriage. But the Quran had made her maintenance obligatory on her father before marriage and on her husband after marriage and on her sons after death of her husband, if she had grown up children. It has nothing to do with her being woman. Today in many cases she earns herself and contributes to the family wealth and there is a need to possibly examine this matter further.
The Quran created for women right to inheritance in three capacities: as daughter, as wife and as mother. Before Islam she could not inherit at all. Since in those days she was not contributing to the family wealth and was merely dependent on male members of the family. This (i.e. creation of right to inheritance in three capacities) itself was a revolutionary step. Thus this right could be further advanced today in the changed condition. It will in no way injure the spirit of the Quran; on the contrary it will enrich it.
I strongly advocate on ethical and moral principles that the kind of changes I am hinting at are due for being implemented. In actual practice, some Islamic countries today are on way to achieving such results. However it has been accomplished without much publicity for fear of arousing a religious reaction movement. In Pakistan for instance there is an open campaign to cancel from the statute books Hudood laws. How far this evolution is successful remains to be seen.
So it is not only the matter of Shari’a laws not being applied in Family related questions, there is the more difficult and complex inquiry of how to meet the debris of centuries of interpretation to assist particularly the attitude towards women within the family institution. The task ahead for Islamic societies is thus very difficult. I find it almost disheartening as I feel that the trans-national realities are so delicate right now that vast number of uneducated people in Islamic masses is being driven towards adopting the more rigid approaches to important questions relating to Family, marriage and divorce.
Before concluding this survey, I should says something about some other aspects of this matter which are not well known. Apart from the genuinely difficult sociological and legal issues there are some peculiar problems dealing with Muslim family traditions in different countries connected with family and marriage issues. In the Sub-Continent, in Afghanistan and Pakistan, there exists amongst the Muslims the tradition of “wani” This means giving in betrothal one or two young female children in marriage to another family for some kind of a quid pro quo or simple bonding. Fortunately, however, the practice of wani is not widespread.
But another very disturbing phenomenon is the so-called urfi marriage. Social activists and experts working on broad family issues and human rights have warned of the dangers of a general lack of information regarding urfi marriage, a phenomenon that is becoming increasingly common in Egypt. “It’s the lack of understanding of what exactly urfi marriage entails that ends up creating a host of problems for the female party,” said Heba Loza, an expert on broader family issues wrote recently with semi-official newspaper Al-Ahram.
Urfi marriages, commonly defined as marital unions lacking an official contract, are often carried out in secret. For the most part, those who choose to be married by way of an urfi contract are young couples who do not have parental consent or who cannot afford a wedding. “In reality, most of those who resort to urfi marriages are young couples seeking to legitimize a sexual relationship,” said Heba. “Many cannot afford a wedding, while many others don’t have the consent of their parents. To them, urfi marriages provide an alternative.” The basic question is that are urfi marriages sanctioned by Islam? Islam is after all Egypt’s majority religion. It seems that the view is generally that it is so even though conducting them in secret – without the consent of couples’ families – is not.
In urfi marriages, conducted by a Muslim cleric and usually in the presence of at least two witnesses, only two copies of the marriage contract are produced – one for each party. “Hence, there is always the danger that one party will deny the marriage ever took place,” said Heba. “In most cases, it’s the man.” I had already mentioned that there is the concept of temporary marriage in Shiite notions of Islam and is chiefly practiced in Iran. But to have this kind of acceptability in Sunni Muslims is quite unnerving.
Throughout the history of Islamic faith, it has been a deeply cherished objective to emphasize on enveloping the entirety of a person’s life with its normative structure of rules of conduct and precepts. Amongst the major norms of such expected behavior are those that are devised to apply to the institution of the Family. Islam has also a considerable amount of substantive rules that govern the matter of human rights. But, whereas in Western legal evolution the weight of such human rights’ normative seems to be developing evidently an anti-Family philosophy, the thrust of Islamic jurisprudence and Shari ‘a seems to clearly accommodate both the corpus of human rights ideology and those basic necessary rules that create for the flourishing of the Family.
The evolution of these norms and concepts in the international legal field has been such that, in respect of crucial details, there is a visible tendency to have the rights of the Family give up some of its historical and inherent hierarchal position and status in the society to specific and newly developed “rules” in the broader field of human rights. The problem that we are thus faced with is simple. Some of the “changes” that are currently advocated by a sizeable segment of liberal based ideologues are such that they aim to denude the very foundations and grundnorms of the institution of the family as to adversely affect its well-being and character. These challenges emanate from principally two sources, viz., the liberal facets of contemporary thinking about human rights and perceivable trends at the UN while codifying newer evolutionary norms of this law.
Undeniably the positive role that Faith and Religion play in the public life of any community is tremendously immense. Even amongst the most “progressive societies” of modern times the relevance of Faith can never be exaggerated. Given the peculiar political and societal realities of this millennium, in the Third World context Islam’s significance needs to be specially noted. The perennial support that Family as an institution has evinced from confines of doctrinaire Islam is by itself comprehensive both legally and sociologically! An understanding of this fact would provide us with a true glimpse of the rationale why Muslim countries are always advocating the continued historical continuity of the Family as the core and fundamental group unit of our civilizations, regardless of the nature of Religion of the concerned communities.
These are a few prominent areas within the Family laws requiring attention of scholars, experts, religious leaders and governments for undertaking “reforms”. The “reform” movement that is needed has to be well coordinated and of course led by profound scholarship. Anything less than quality would be self defeating. So this reform movement has to be undertaken with lot of planning, and a determined yet sincere effort to have the kind of imagination that achieves dynamic advances without creating the expected opposition from adversary ideologies.
The recent defeat of reform laws in Pakistan and the Government’s failure to enact the women’s human rights law shows that when motivation is not to undertake improvement but to simply appear to be “moderate” in policy, the measure is likely to fail as it lacks the bona fides to do so.
In all societies, when religious dogma is intertwined with local culture and prejudices, it is not easy to move ahead with alacrity. It is without question clear to me that the rights of women need manifest exposure and resultant improvement to realize the niche of equality of genuine advancement for both genders of the human race. The rightful place of women in a family thus needs a determined projection.
Please see the attached Academic Paper file for Footnotes.
Dr. Farooq Hassan, D.Phil.;
BA (Juris),MA,M. LiTT (OXON);
Barrister at Law (UK), Attorney at Law(US)