Matrimonial rights of women’s under Islamic law (sharia law)

(A comparative analyze between Islamic law and srilankan Muslim law)

Introduction to the Islamic law

Islamic law is a very great jurisprudence worldwide, Islamic law is defined as the law according to the Muslim faith and as interpreted from the Quran also known as Sharia law. The sacred law of Islam is an all-embracing body of religious duties, the totality of Allah's commands that regulate the life of every Muslim in all its aspects. Important feature of Muslim law is the fact that there is no clear separation of Mosque (is a place of worship for followers of Islam) and state. Under Islamic law, the religion of Islam and the government are one. Islamic law is controlled, ruled and regulated by the Islamic religion; a theocracy.

Islamic law purports to regulate all public and private behavior including personal hygiene, diet, sexual conduct, and child rearing. Islamic law now prevails in countries all over the Middle East and elsewhere covering 20 per cent of the world's population. Despite its relative inflexibility, in some ways, Islamic law is superior to other systems of law, such as the preference given to arbitration in civil disputes.

Islamic law composed of following elements

§  Sharia:

§  Quran

§  Sunnah of Prophet Muhammad (generally known as Hadith)

§  Sunnah, literally means path.

§  The Sunnah of Prophet Muhammad consists of his sayings, actions, approval and disapprovals.

§  žFiqh:

§  Collection of juridical opinions given by various jurists as they pondered over   the day-to-day application of Sharia

§  žFatwa:

§  Legal opinions (typically non-binding) issued by qualified jurists.

§  Usually provided as an answer to a specific question.

 Sharia is based on wisdom and achieving people’s welfare in this life and the afterlife[1]. Sharia is all about justice, mercy, wisdom, and good. Thus, any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense is a ruling that does not belong to the Sharia even it is claimed to be so according to some interpretations.

The main criticism on Islamic law from the western society is “Islamic law discriminates women’s rights”. Western society has identified so many women’s right violating incidents occurred in the countries which practices Islamic law or the countries which identify themselves as an Islamic republic. For example the following incidents could be recognized as the discriminatory aspect of Islamic law.

Traditionally, the Muslim woman marries at a young age to a man of her father's choice. A husband is entitled to divorce any time, even against his wife's will, by merely declaring verbally that this is his intention.Although the image of the egalitarian woman is slowly developing within some more secular Arab states, it remains largely confined to urban centers and upper-class circles. Ritual sexual mutilation of females is still common in rural areas of Egypt, Libya, Oman and Yemen.

According to the UN, "utilization of Arab women's capabilities through political and economic participation remains the lowest in the world in quantitative terms….In some countries with elected national assemblies, women are still denied the right to vote or hold office. And one in every two Arab women can neither read nor write."[2]

Wife-beating is a relatively common practice in Arab countries, and abused women have little recourse. As the State Department has noted regarding Jordan (and most of the Arab world): "Wife beating is technically grounds for divorce, but the husband may seek to demonstrate that he has authority from the Quran to correct an irreligious or disobedient wife by striking her."[3]

Abstraction of all above issues points out that most of the restriction on Muslim women connected with their marital life. A patriarchy family system has been formed through Islamic norms and values. however Islamic legal experts and scholars denies the above statement and they strongly argue that Islamic law grants much wider rights to women’s especially in case of marriage life the Islamic women enjoys much wider rights other than non Islamic women’s.

Now let’s analyze myths and facts regarding the matrimonial rights provided under the Islamic law.

First of all let’s see how Islamic laws treat gender equality.

“And women shall have rights similar to the rights upon them in a just and equitable manner; but men have a degree over them” (Holy Quran2:228).

Interpretation given for the above verse by Islamic scholars is   the rights of the wives in relation to their husbands are equal to their obligations toward their husbands but men in their obligations toward their wives stand a step further

The “step further” of which the Quran speaks is not a position of greater rank or nobility. The “step” the Quran makes reference to is the obligatory duty given to the man in the care of the woman; it is not a degree of superiority. Allah ordained men with the responsibility to preserve and solely sustain women.

The “step further” is in no way a form of dominance or preferment. The Quran consistently makes reference to equity, parity, and equilibrium among the genders. It disposes of genders and makes no distinction whatsoever between the superiority or inferiority of men and women. On the contrary, it is the piety of a person that distinguishes him or her by ranks or degrees, not gender or lineage.

As stated in this verse “step further” husband duty bound to maintain his wife, Now let’s see how does Shariah law ensures the Right to Maintenance of a wife.

The duty to maintain a wife is the sole responsibility of a husband under Islamic Law.

This can be seen in the Quran where it states that:

“Men shall take full care of women with the bounties which Allah has  bestowed more abundantly on the former (men, with several special  merits) than on the latter (women) , also because they spend a part of  (their wealth) to maintain them….”[4]

This command is further strengthened by a number of Hadith as follows:

Prophet said the following concerning women, 

 ” And their rights which are your responsibility is to feed and clothed them in accordance to their needs”[5]

Hence, from the above it is the duty and responsibility of a husband to support his wife from the day he married her. This responsibility continues as long as they are married to each other. Upon divorce, a husband has to maintain his wife during the iddah period which is approximately 3 months. After the 3 months is completed, a husband may no longer have to support her. Apart from maintenance a woman is also entitled to mutaah (consolidation payment upon divorce) and matrimonial property (harta sepencarian) 

In case of Maintenance Srilankan Muslim Marriage and Divorce Act provides that any claim for maintenance by or on behalf of a wife, legitimate child or illegitimate child (where both parents are Muslims) falls within the exclusive jurisdiction of the Quazi[6].

A Muslim woman’s right to maintenance during marriage is derived from the concept of nafaqa, which encompasses the provision of basic needs such as food, clothing and accommodation to the wife. In contrast to the Maintenance Act, the husband has the primary obligation of providing support and a wife’s own financial means are irrelevant in determining her claim for maintenance.

Maintenance after divorce is not recognized under Muslim personal law. However, the Muslim Marriage and Divorce Act provide three situations in which a divorced wife may claim maintenance:

1. until registration of the divorce;

2. During iddat (the period of time that a divorced wife must remain unmarried); and

3. If such woman is pregnant at the time of registration of the divorce, until she delivers the child.

A wife who leaves her husband's house without valid and sufficient reason is not entitled to claim maintenance from her husband under section 21 of the Muslim Marriage and Divorce Registration Ordinance. In the case of Seyed Mohamed V. Mohamed Ali Lebbe[7]  Court held that “When the woman abandons the conjugal domicile without any valid reason she is not entitled to maintenance. Simple refractoriness, as has been popularly supposed, does not lead to a forfeiture of her right But if she were to leave the house against his will without any valid reason, she would lose her right, but would recover it on her return to the conjugal domicile. What is a valid and sufficient reason for the wife to leave the husband's home is a matter for the discretion of the Judge. As a general principle a wife who leaves her husband's house on account of his or his relations' continued ill-treatment of her…. continues entitled to her maintenance ".

Custody of the child

Shariah law give priority to women’s in case of custody of child, One of the key relevant hadith is the following:, a woman came to the Prophet and said: 'Truly my belly served as a container for my son here, and my breast served as a skin-bag for him (to drink out of) and my bosom served as a refuge for him; and now his father has divorced me, and he (also) desires to take him away from me.' The Prophet said: 'You have a better right to have him, as long as you do not marry again. From this hadith we could arrive a clear understanding that in case of child custody the Mother has the priority.  However, if the mother marries again she would generally forfeit her right to custody.

This concept in custody which favors to mothers has been adopted in several legal systems which include Muslim law as a personal law. For example in India the first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat (custody) and it can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right.

Srilankan legal system also follows similar phenomena in regarding the custody of Muslim child which ensures the priority of the mother to keep her children under her custody even without the consent of her husband. In re Wappu Marikar[8] case Wood Renton CJ stated that according to Shafii school, the custody of a girl remains with the mother, not merely until puberty, but till she is actually married; and in the case of a boy, till completion of his seventh year at all events, and from thence until puberty he may place himself under either parent whom he chooses. This case is a clear example to quote that srilankan Muslim law provides a wide safeguard to women’s in regarding the custody of child.

Rights on matrimonial property

Shariah law clearly defines the rights of women on property. The Muslim woman has always had the right to own and manage her own property. Marriage in Islam does not mean that the man takes over the woman's property, nor does she automatically have the right to all his property if he dies. Both are still regarded as individual people with responsibilities to other members of their family - parents, brothers, sisters etc.

The husband has the duty to support and maintain the wife, as stated in the Qur'an, and this is held to be so even if she is rich in her own right. He has no right to expect her to support herself, let alone support his children or him. If she does contribute to the household income this is regarded as a charitable deed on her part.

Because of their greater financial responsibilities, some categories of male relations, according to the inheritance laws in the Qur'an, inherit twice the share of their female equivalents, but others, whose responsibilities are likely to be less, inherit the same share -mothers and fathers, for instance are each entitled to one sixth of the estate of their children, after bequests (up to one third of the estate) and payment of debts.[9]

Women are thus well provided for their husband’s support them, and they inherit from all their relations. They are allowed to engage in business or work at home or outside the house, so long as the family does not suffer, and the money they make is their own, with no calls on it from other people until their death.

 “Men shall have their share of that which they have earned, and women a share of that which they have earned…” (Quran4:33)

From the above verse from Quran married women’s are treated sole owners of their property husband cannot claim any part of her property while marriage exist of dissolved. Moreover Upon marriage the husband is required to give his wife a mahr (dowry) which then becomes her exclusive property.  A woman can work for financial gain, without any obligation on her part to contribute to the household expenses. Islam also gives her inheritance rights, making it a requirement for women to get their determined share.

Two significant features regarding Muslim women matrimonial property are Mahr and Kaikuli. Mahr is like dowry in other communities which is demand by bride and provided by groom when marriage is solemnized. Mahr is a sole property of wife and husband did not have any interest on mahr property. Even after the dissolution of marriage husband cannot claim the mahr from wife but if there any balance has to be settled on agreed mahr the wife could claim that balance mahr after the dissolution of marriage[10]. kaikuli means any sum of money paid or other movable property given or any sum of money or any movable property promised to paid or given, to a bridegroom for the use of bride, before or at the time of marriage by a relative of bride or by any other person. Husband has the ownership of kaikuli property but he is liable to pay it over to the wife if she demands it, even during the subsistence of the marriage.  The obligation is to return the property to his wife whenever she demands it or, if she dies, to her heirs[11].

Rights on marriage and divorce.

Marriage in Islam is viewed as an important and sacred union between a man and woman that fulfills half of one’s religious obligations. A well-known passage in the Quran discusses marriage as follows:

 “Among His signs is that He created for you spouses from yourselves so that you might find repose with them.  And He has placed between you affection and mercy. In that there are certainly signs for people who reflect.” (Quran 30:21). 

Marriage requirements

There are basic requirements for marriage in Islam.  First, a couple must mutually consent to the marriage. This requires both a clear proposal and acceptance. A woman also must have a WALI or legal guardian present during the process. If a WALI is not present a woman must be past puberty and competent to make the decision to marry.

Brides are also entitled to a dowry that is typically negotiated at the same time as the marriage contract. The dowry is specifically a gift showing love and devotion to the bride. There are two types of dowries a bride is entitled to: the mahr and the MUAKHR, first, the mahr is the dowry given to the bride at the time of marriage before consummation takes place. She is not required to share this dowry and is free to do what she wishes with the gift.  The bride is often asked her opinion to make sure she receives a gift she enjoys. 

MUAKHR is the second type of dowry that is given upon the death of the husband or the couple’s divorce. This is also referred to as the “deferred” dowry. MUAKHR is meant for both financial support and as a large consequence that the couple should consider when contemplating divorce. In situations of death, this amount is paid out before the estate is divided. If the estate cannot cover the entire amount, the wife is entitled to collect the amount from the husband’s surviving family members who are also heirs to the estate. She can also waive the obligation for any reason, including hardship on her husband’s family.

Polygamy

The most controversial topic in Islamic law is polygamy some critics say this concept is is a distinct violation of married women rights. However now let’s analyze what Islamic law says about polygamy and polyandry

‘If ye fear that ye shall not be able to deal justly with the orphans, Marry women of your choice, Two or three or four; but if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess, that will be more suitable, to prevent you from doing injustice’. (Quran 4:3)

Historically, the practice of polygamy existed before Islam without restrictions. Islam limited the number of wives to four and established clear rules and regulations for the practice to ensure fair treatment of each wife[12].

Polygamy is an option and not a requirement in Islam[13]. As was mentioned earlier, Muslims must follow the laws of the land that they live in as long as it does not contradict the requirements of the faith. Polyandry, or marrying more than one husband, is not permitted to maintain the children’s lineage for purposes of inheritance and protect children’s rights as heirs. Monogamy is the normal practice in the majority of Muslim communities due to the financial and emotional burden it carries.   

Divorce

TALAQ is the word, used in Islamic law for divorce. It is an Arabic word and means “set free”. It is only in unavoidable circumstances that TALAQ is permitted as a lawful method to bring marriage contract to an end

Requirements for divorce in Shariah Law

1.      He or she must have reached puberty and be capable of making a decision

2.      He or she must be sane, conscious, alert, and free from intoxication or anger

3.      He or she must be free from external pressure

4.      His or her intention must be clear

Divorce must take place after the wife’s menstrual period and no sexual relations have occurred since her period ended. If all the above factors are present, either the husband or wife can pursue a divorce or they can pursue a divorce jointly and amicably. 

In SriLanka Muslim marriage and divorce act provides clear guide line for the marriage and divorce procedure for Muslims. Most of the provisions in this act accordance with shariah law. In case of consent of the bride did not taken in account for marriage, consent of the bride is deliberate through the WALI (guardian of bride). This provision seems to be a clear violation of women’s right however he movement for Muslim personal law reforms in Sri Lanka from a feminist perspective has been spearheaded by the Muslim Women’s Research and Action Forum (MWRAF), a small group of professional Muslim women continuously emphasis the legislation to bring changes to ensure that the consent of both parties are obtained as an essential condition of a Muslim marriage and to make provision for the bride’s signature, given the fact that there is no space for her signature in the Muslim Marriage and Divorce Registration Form and it is the wali or marriage guardian who conveys her consent on her behalf. However this recommendation has not been taken account by the legislation yet.

In case of divorce, second schedule of Muslim marriage and divorce act defines the steps to get a divorce by women which obviously accordance with Muslim Shariah Law. Eventually the authority of implementing the divorce is vested with the Quazi[14].

Conclusion

Sharia has certain laws which are regarded as divinely ordained, concrete and timeless for all relevant situations. It also has certain laws which are extracted based on principles established by Islamic lawyers and judges. The sharia as interpreted by Islamic lawmakers is believed by Muslims to be merely a human approximation of the true Sharia, which is understood as the divine and eternal correct path. In deriving Sharia law, Islamic lawmakers are not, therefore, actually creating divinely correct or incorrect actions beyond question, but rather attempting to interpret divine principles.  Hence Sharia in general is considered divine, but a lawyer's or judge's extraction or opinion on a given matter is not, though the process and intention to refer to Allah's law is divinely sanctioned

Muslim laws developed from the shariah law are not merely reflecting shariah principles. It purely based on circumstances, traditions, communal influences and etc. as I stated earlier most of the critics from western society comments that shariah law lays some savage rules regarding women’s. But actually Islamic laws are the pioneer laws which grant wider rights to women’s. this article could only analyze the matrimonial rights grant  to Muslim women’s by shariah law apart from this rights shariah laws has given adequate rights on each social activities for women’s.

Islam provides rigid guide lines for pleasant domesticity. In Quran most of command orders the men to safeguard the women and to provide them all necessary rights and to treat hem equally. One of my favorite quotes in Quran is “The most honored of you [male] in the sight of Allah is he who is most righteous of you”: (49:13). Interpretation given by Islamic scholars for “righteous” is “maintaining the wife with equal rights” from this verse we could realize how far the Islamic shariah law ensures matrimonial rights of women.

Srilankan Muslim law is Constructed from Muslim social and communal structure which consist Islamic shariah law as a core part of it. SriLanka Muslim law deals with almost all social conduct of Muslims. Most of the matrimonial disputes arises in Muslim families has been amicably solved by Quazi courts which operates under Muslim marriage and divorce act. As we have discussed earlier part of this article srilankan Muslim law tries to ensure the married women right and it bound to operate within the criteria of shariah law. However the core concept of shariah law is to prevent party (husband and wife) from exceeding their limits.  I had an interview with a Quazi judge who had come across more than 3000 of matrimonial disputes he stated that

“Muslim Marriage and divorce act bound by shariah law is primarily intended to bring a peaceful settlement regarding family issues. It provide safeguard to the married women for an extend, but we are required to act in moral manner which should give remedies for the weaker party (mostly women’s). Moreover most of the divorce application initiated by women’s and their husband are duty bound to provide adequate financial support to them even after dissolution of marriage this is a very essential safeguard for women’s. As per the Muslim law, matrimonial properties of women are entirely belonging to her. Even though I wish some changes should be brought in Muslim law regarding the consent of bride at the time of marriage and the duties of register when he registers a second marriage”

-M.I. Abdul Qader

Quazi Judge

Akkaraipattu

From the above statement we could understand Srilankan Muslim law has given matrimonial rights to a Muslim women for an extend. But it should be amended to meet the needs of modern era therefore government should take essential steps to find put the contemporary life style of Muslim people and Srilankan Muslim Law has Amend according to satisfy the modern need of the people.

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[1] Ibn al Qayyim (One Islamic Scholar, d. 1347) 

[2] Arab Human Development Report 2002, NY: UN, 2002.

[3] U.S. State Department, Reports on Human Rights Practices for 1999.

[4] Quran: Surah An‐Nisa’:3

[5] Riwayat Musli

[6] sec 34,35,36 and 38(2) of  MARRIAGE AND DIVORCE (MUSLIM)  act [Cap. 134

[7] S. C. 565-Board of Kathis Appeal 488

[8] 14 NLR 225

[9] (Qur'an 4:11)

[10] sec 47 & 64 of Muslim marriage and divorce act.

[11] Sowdoona v. Muees ¹[(1955) 57 N. L. R. 75; 53 C. L. W. 47.]

[12] Abu Dawoud, a companion of the Prophet, reported the following: Omair al-Asdee was reported as saying: ‘When I accepted Islam, I was married to eight wives. I discussed this with the Prophet Muhammad who said: “Keep four only, and divorce the other four.”

[13] See Hammudah Abd al Ati, Family Structure in Islam 54-56 (American Trust Publications 1977).

[14] sec29(4) of muslim marriage and divorce act.