Islamic Perspectives

On Women’s Rights in Islam - i

In the contemporary world rights of women in general and those of Muslim women, in particular, have become quite important. Our Institute is strongly committed to gender equality and we have been doing whatever we can by way of research, writings, awareness workshops etc. to promote Muslim women’s rights within Islamic frame-work. I have tried to write, as it is my priority area, on practically every aspect of this subject.

Today I am writing again as some recent fatwas and controversies about women’s rights in Islam have again raised this controversial issue in media as well as in academic and Islamic circles. Also, in European countries hijab or face veil is being banned by some countries and has attracted hostile reaction in media. Our stock reaction is western media is hostile to Islam (which is largely true) but we never examine issues involved critically, much less take practical measures.

Fiqh (jurisprudence) in general, and in the area of personal laws (ahwal al-shakhsiyah) in particular, has become stagnant and fatwas are issued on the basis of certain juristic texts evolved during early centuries of Islam. Whenever any question is asked pertaining to women’s rights, our Ulama take resort to these juristic texts and issue their ruling without taking real context and problem into account.

When some who stand for women’s rights differ they are accused of being western feminists or Muslims only in name. This is quite painful and disturbing. When some Muslim women themselves try to acquire Qur’anic scholarship and study of sunnah, they too stand accused of ‘anti-Islam’ distorting Islamic laws. Unfortunately, some people holding university degrees are also indulging in such accusations as they are disturbed by changes.

Once I was invited by the law faculty of Aligarh Muslim University to deliver an extension lecture on “Rights of Women in Islam” which was also being attended by many female students of law and other faculties. I spoke on the subject only with reference to Qur’an and sunnah to prove that both men and women enjoy equal rights in all the fields of active life. To my shock and embarrassment of the audience a lecturer in law stood up and said, ‘sir, you have forgotten to say that men should also get pregnant and produce children’. I told him politely, “please address this question to Allah, not to me.” This is how many educated who teach in universities think. Even these educated men and women too are totally ignorant of how Islamic jurisprudence evolved over a couple of centuries and consider it as divine and immutable.

When one stresses the importance of ijtihad in Islam the stock reply is that there is no one qualified to do it and some argue that the doors of ijtihad have been closed after the sack of Baghdad in 1258. Now we have to conserve whatever has been inherited. Firstly, the question arises who closed the door of ijtihad. Is there any central authority in Islam to pronounce such a closure? This is simply not true.

There are very complex reasons for Ulama shunning their duty to do ijtihad. One has to go into these reasons. Another thing I would like to stress is that the Islamic process of jurisprudence has been one of the most dynamic one for a few centuries and was based on a central Qur’anic value of justice. I can say that there have been few attempts in human history to undertake such law making enterprise with justice being so central to it.

Ijtihad was the very spirit of the whole project. As long as Islam remained confined to the Arab Peninsula, the questions faced by jurists were relatively simple. Also, all companions of the Prophet were around and there was hardly much difficulty in solving the problem. But once Islam began to spread speedily in non- Arab parts of the world with vastly different cultures, customs and traditions, complexity of problems increased.

Also, add to this the fact that companions of the Prophet were also not around after two generations and then even followers of these companions and followers of followers of these companions also gradually vanished leaving a great gap. It is then that great jurists with the spirit of ijtihad appeared on the scene and tried to tackle new problems which were arising. New tools like qiyas and ijma’ (analogical reasoning and consensus among Ulama’) were invented which clearly made it a human enterprise.

Here we are more concerned with the question of women’s rights in this process of legislation. Since Islam was a great liberation movement for the whole of humanity and especially weaker sections of society, women could not have remained unaffected. The widows, the divorcees, the slave girls and orphans were great sufferers among them. Widows were treated with contempt as in India. Also, there were no written laws in a tribal society. Everything either depended on customs and oral traditions or on arbitrary behavior of the powerful.

There are many instances in which some men had as many as eight or ten wives. The eldest son after father’s death could even take his step mothers (except his own mother) as his wives and have sex with them. Also, to have daughters was considered as a matter of shame. The Qur’an has described it as follows: “And when the birth of a daughter is announced to one of them his face becomes black and he is full of wrath. He hides himself from the people because of the evil of what is announced to him, Shall he keep it with disgrace or bury it (alive) in the dust?..(16:58-59)

How ashamed these pre-Islamic Arabs felt when daughter was born and in most of the cases was buried alive. And see how Qur’an elevated their status to that of equality with men and empowered them with all the rights – individual dignity, right to marry man of her choice, right to stipulate conditions for marriage, right to divorce (KHULA’), right to inherit, right to her own earnings and right to property. In short, her status was raised from chattel to a human being with all the rights.

It was not short of any revolution. Then the Prophet himself married a widow and fathered all the daughters and loved them more than one would love ones sons. He was especially attached to his youngest daughter Fatima and would even stand up when she entered his house. There is a chapter in Qur’an al-Nisa’ (The Women) but no chapter like al-Rijal (men).

There are several verses in the Qur’an which emphasize that men and women would be equally rewarded and no discrimination would be made. Thus we find in the Qur’an, “So their Lord accepted their prayer, (saying): I will not suffer the work of any worker among you to be lost whether male or female, the one of you being from the other.” (3:194). And also see verse 33:35 if there is any doubt in any one’s mind about equality in matters of reward and punishment for both men and women.

Then important question is why this was not reflected in practice and in the process of legislation and schools of Shari’ah or different madhahib? This is the key question and we would like to throw light on this question. It is on understanding this question that lies the way to bring about necessary changes in the status of Muslim women today and to restore the one accorded to her by the Qur’an.

Before we discuss this I would like to say that even the Islamic jurisprudence as it obtains today is not, and could not be, oblivious of justice as a value though in some cases justice did become secondary. Certain pronouncements of the Qur’an are so clear that the Shari’ah law could not ignore them. But then there is another problem that of social values, customs and traditions which further mar the spirit of justice.

One or two examples should suffice. Let us take, for example, the question of child marriage. Since marriage is a contract in Islam, a child could not enter into a contract and hence her marriage guardian (often her father) entered into the contract on her behalf. But then as a child she cannot authorize her father to do so.

Hence the Hanafi school provided for her to accept or annul her marriage when she matures. This right is called khiyar al-bulugh i. e. option of puberty. However, in Muslim society child marriage remained but option of puberty was lost. Once father married off his daughter how could she refute it? It becomes the question of izzat (honor). Thus social customs become more important than Shari’ah provisions.

Many more examples can be cited. In certain Muslim communities like Memons for example, women did not inherit and instead Hindu customary law applied to them until 1937 Shari’at Act came into existence. Even today ground situation is very different from what has been provided for in the Shari’at law. Also, half-literate village imams and Panchayats enforce customary laws in the name of Islam and media passes them off as Islamic provisions.

Thus it can be seen that in most of the cases there are complex problems and interactions between Islamic provisions, social customs, tribal practices and patriarchal values. To legitimize these practices, Islamic Shari’ah is wrongly invoked and irony is that our Ulama keep silent knowing fully well it is not Islamic. Even if they oppose, it is so discrete that it has hardly any impact on the society. They fear public reaction.

In fact many scholars have repeatedly pointed out that one must distinguish between fiqh and shari’ah. Fiqh is nothing but an attempt to understand a problem, to know it and it has to be a continuous process as new situations and new problems keep on arising. Shari’ah is the final product whereas fiqh is a process, a tool and a means. We should also keep in mind that the great imams struggled to find solutions to various problems they encountered in their own times.

Imam Abu Hanifa, for example, lived in Iraq which was a confluence of Arab and non-Arab cultures. Kufa, where he lived, was basically a military camp and had a large number of mawalis (clients of various tribes) from various countries conquered by Muslims. They had their own customs, traditions and social values and used to approach the Imam with their problems.

Thus the conquered countries also cast their shadows over the process of fiqh. Here the question of face veil becomes important. Is face veil Qur’anic or part of Prophet’s (pbuh) sunnah? Of course there are differences of opinion. But Qur’an certainly does not specify face veil but only says do not display your zeenah (i.e. bodily charms and adornments) publicly.

Continued in the next issue

This article appeared in The Milli Gazette print issue of 1-15 October 2010 on page no. 28

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