Complementary Equanimity

The following is the text of a speech given by Syed Mumtaz Ali, Barrister & Solicitor, President of The Canadian Society of Muslims, in the month of September 1992, on the occasion of the Milad celebrations in Toronto, Ottawa and Edmonton. 
All praise is due only to God. All praise be to God who guided us and, were it not for His guidance, we would not have been guided at all.  Praise be to Him who gave us the guiding principle as a motivating power, and as a maxim or a watch-word when He revealed verse 163 of the 6th chapter of the Holy Qur'an:
"Say:  My prayer and even my sacrifice and my life and my death are surely for Allah, the Lord of the worlds."
This guiding principle applies to all activities of life, including family life in both its spiritual as well as its temporal and moral aspects.  It applies to both the husband and wife equally, for the Holy Qur'an very explicitly states in Chap. 30, Verse 21:
"And of His signs is this:  He created for you helpmates from yourselves that ye may find rest [Yusuf Ali uses the word 'tranquillity'] in them, and He ordained between you love and mercy."
Equality between the husband and wife is established by the same verse, too.

Abdullah Yusuf Ali has commented on this verse. He states that unregenerate [stubborn] man is pugnacious [aggressive, fond of fighting] in the male sex, but rest and tranquillity are found in the normal relations of a father and mother dwelling together to bring up a family.  Man's chivalry to females is natural and God-given.  In other words, the relationship of a man with his wife is based upon justice, fraternity, as well as love and charity in the wider sense. The equanimity between them is a steady calmness that is characteristic of the state of being unperturbed in their ongoing relationship.  In this respect, they are complementary in that each will enhance the life of their partners.

In order to achieve this state of mind and bring about such a state of affairs in this lifestyle, one must adopt the approach of accommodating each other and the creation of a pleasant matrimonial atmosphere that balances each other's desires, wishes and needs of all sorts. Thus they will become ready, willing to give and take, if and when required.  Such a balancing act, small or large, on the part of both partners, in due course, assume the routine characteristic of a normal marital relationship.  They help maintain the gender equality aimed at realizing the basic objective of equanimity, peace of mind and love and mercy that was ordained in the Qur'anic verse quoted above.

He created for you helpmates ... and He ordained between you love and mercy.

This balance for the purpose of maintaining gender equality is to be in accordance with two other beautiful Qur'anic verses, the first being Verse 55, Chap. 2:

"But observe the measure strictly, nor fall short thereof. [Pickthall:]

"So establish with justice and fall not short in the balance." [Yusuf Ali:]

Yusuf Ali's commentary on this is that this verse is to be taken both literally and figuratively.  Thhat means that a man should be honest and straight in all daily affairs, such as the weighing of things that he is selling. Furthermore he should be straight, just and honest in all his higher dealings too. Not only with other people, but with himself and also with obedience to God's Law.  But many will do either one or the other when they have the opportunity to deceive.  Hence justice is a crucial virtue. The avoidance of both excesses as well as defects in conduct keeps the human world balanced just as the heavenly world is kept balanced in mathematical precision. Verse 87 in Chapter 5 of the Holy Qur'an reaffirms the same balancing principle:
"And exceed not the limits.  Surely Allah loves not those who exceed the limits."
Adhering to this principle and practising it conscientiously in married life enables women and men to form complements to one another in a most fitting manner as has been expressed in this beautiful way in Verse 187, Chapter 2:
"They [i.e., women] are raiment [= garments, clothing, especially finer quality ones] for you, and you [i.e., men] are raiment for them."
That both men and women are each other's raiments (garments) means that both genders are for mutual support,  comfort and protection, fitting each other as a garment fits the body.  Thus, they both complement each other or serve to enhance the life of the other.

Family relations (including gender relationships) are obviously only one segment of the sum-total of relationships between all human beings and their fellow creatures.  The totality of such human relationships is the subject of the human system of morality.  And, in the context of the Qur'anic approach to life, one cannot fail to become fully conscious of the fact that Islam is an all-embracing code of life.  Not only does the Qur'an prescribe beliefs, but it also gives rules for good, moral conduct and social behaviour.  Its morality, its law and even its faith are all based on Divine commandments because Islam is based on the belief that Divine revelations were sent to man through the prophets who were intermediaries.  As Dr. Hamidullah puts it, essentially it is the Divine aspect which has the decisive significance in Islam, even though it is possible that in the majority of cases, human reason also should arrive at the same conclusion.

In view of this Muslim concept of morality, therefore,  it is always essential to bear in mind that, in family law matters, too, Muslims are guided and governed by the dictates of  Divine religious laws.  So, in the context of morality and human relations, we all face the same question:  "How does one distinguish between good and evil?"  In the first instance, it is only the revealed law which alone is the criterion, but in the last resort, it is one's own consciencethat is one's arbiter.  An Islamic judicial maxim, contained in a Hadith reported by Ibn Hanbal and al-Darini, stresses the same when it says:

"Consult thy conscience even if the jurisconsults provide justification to thee."
The revealed law  is the criterion

The Qur'an in Chapter 7, Verse 2 is quite explicit with regard to the revealed law being the root source of all activities:

"Follow that which is sent down unto you [i.e., the Law] from your Lord, and follow no protecting friends beside Him."
And also in Chapter 5, Verse 51:
 "To each among you have We prescribed a Law and an Open Way."  [Yusuf Alii]
... it is one's own conscience that is one's arbiter

In its ardent desire to attack the very source of evil, to paraphrase Dr. M. Hamidullah, and not merely certain of its manifestations, Islam has imposed, recommended or otherwise encouraged certain practices (even in the sphere of spousal relations, family law and matters of morality) which will astonish us sometimes if we do not take into account their profound motives, especially in regard to certain aspects of morality, particularly because Islam is more rigid than certain other systems of life in our times.  And that is the way the beautiful Divine Law of Islam is.

It is therefore essential that if one wants to contrast or compare the position of woman in Islam to that of other civilizations or legal systems, one should consider all the facts and not merely isolated incidences.

It is necessary to understand the whole scheme of Muslim family law and its objectives, aims, purposes or motives in order to be able to take into consideration and properly balance the differences with other systems, in order to arrive at some sort of meaningful conclusion (even if comparing apples to oranges).  It makes no sense just to handpick at random some isolated aspect(s) of Muslim personal/family law completely out of context from the total code of the Shariah, its way of life and its world-view that has been enshrined therein, and go about dissecting, analysing and criticizing the handpicked item(s) to death in such an artificial vacuum under a guise of scientific objectivity.

Such a simple-minded approach (that is further burdened by the handicaps of an uninformed mind [i.e. to properly understand the pros and cons of as comprehensive and as detailed a system of life as Islam]), is therefore tantamount to nothing short of mediocre intellectuality.  This, in turn, can lead to a sequence of ever increasing antagonistic feelings against Islamic concepts and practices.  To such a mind, the Muslim concept of life, its entire philosophy, and its legal code is considered to be a giant jigsaw puzzle that is very complex.  Analysing a randomly hand-picked, isolated aspect or issue in Muslim family law would be like studying and subjecting it to all kinds of critical examinations and analyses of a small piece of a puzzle that was randomly picked.  With such an approach,  more often than not, one entangles oneself in a series of neverending artificially created puzzles that resemble Rubic's cubes.

Two Major Concerns

Bearing these considerations in mind, however, I shall try in my own modest way to make a presentation of the Muslim personal/family law with a view to respond to two major concerns that have been brought to our [The Canadian Society of Muslims] attention  during the course of our second phase of our Muslim Personal/Family Law Campaign (which was aimed at collecting all such responses from both within, as well as without, the Muslim community).

A major concern seems to be related to Muslim women's position under the Muslim family law as compared to secular Canadian law.  The next important concern relates to people's apparent difficulty, (both within the Muslim as well as in the non-Muslim community here in Canada), to understand how and why the autonomy of personal laws generally, and Muslim personal law particularly, is so crucially important for both the Muslim minority in this chosen homeland, as well as for all other Canadians.

There are enough books and materials of all kinds for those who wish to acquire knowledge in this field. But the style of presentation and how one says things (i.e. using a language that the younger generation, who have been raised under the influence of Western secular culture and law, can understand) obviously it makes a great deal of difference.  In saying this, I am reminded of Dr. Muhammad Hamidullah's amusing remark in his renowned work, The Muslim Conduct of State, where he says that, "We must not disregard the difference between saying that 'all your relatives will die before you' and 'you will live longer than all your relatives'.  The real difference, which, as the story goes, brought one astrologer dishonour yet brought another astrologer great wealth.

the brink of bankruptcy.

I may be lucky enough to escape the dishonour dished out to the unfortunate first astrologer, even after you discover and realize how poor a style and how sadly mutilated presentation of mine is since this is a desperate effort to condense about 23 printed pages into a fraction of the space it would normally take to deliver.  However, I still do hope that even if the untold riches of the second astrologer have not been not bestowed upon me, you will at least be so inclined as to generously save me from the brink of bankruptcy.

Women's Perspective

So without further ado, I shall try to make this abridged presentation of Muslim family law, first from a woman's rights perspective, and second, from an Islamic personal/family law perspective.

So generally speaking, the Muslim personal law of status (family law), is mainly concerned with 'domestic relations' of persons to each other (family law matters). The first and most important of domestic relations is that of a husband and a wife. It is usually dealt with under the three categories of Marriage, Fosterage and Divorce.

Marriage, to start with, is merely a civil contract.  It may be stated that "marriage when treated as a contract is a permanent relationship based on mutual consent on the part of a man and a woman between whom there is no bar to a lawful union ..."  It does not give the man any right over the person of the wife except for mutual relationship according to the law of nature and is not contrary to it.  This has been clearly laid down in the authoritative work "Badaya".  [written by whom and what does badaya mean?] Muslim law, is far more stringent than either the civil or the canonical (the western-Christian) law in protecting women from injury.

All Muslim law authorities, for instance Durr-ul-Mukhtar and the Radd-ul-Muhtar, [written by whom?]  state that, "It is unlawful to oppress or coerce a woman into marriage or to obtain her consent by force or coercion, or to compel her to marriage." [where does this quote come from?]

However, although marriage is merely a civil contract, it does differ in some other critical respects from other civil contracts.  A few of these are worthy of our particular attention, since it is my intention to deal with the subject in the context of the British common-law system which is  the basis of Canadian law.  The Province of Québec is an exception, where the Napoleonic civil code prevails.  Then the Aboriginal people's system of law is also different from the common-law system.

 Some Distinctive Features of Muslim Personal Law vis-à-vis Canadian/Common Law

To start with, I shall deal with fourteen special features of Muslim personal law, not only so as to bring out their distinctiveness vis-à-vis the common-law system, but so as to appropriately stress their particular relevance to the Muslim community who live in Canada as a minority.  Only some of those provisions of Muslim personal law which help focus on such distinctive characteristics will therefore be dealt with in this presentation, leaving other details for your own independent study.

My earnest desire is to let this presentation serve as a starting point for the kind of approach that one could take in combining a little bit of comparative study with some in-depth grasp of the subject at hand as an alternative to reliance on some vague impressions gathered from innuendo which underly the incorrect and biased presentation of Islam by the Western media, Western Women's Rights Movements and the so-called Orientalist 'experts' and their subtle distortions.

To those who are inclined towards a little more in-depth intellectual or esoteric study of such a subject, I will recommend a welcome new arrival, a sourcebook on gender relationships in Islamic thought, under the tantalizing title of 'The Tao of Islam' by Sachikor Murata, with a foreword by Annemarie Schimmel.

a woman possesses the absolute right over her property

According to Muslim Law . . .

1.  Muslim law confers no rights on either party (i.e., husband or wife) over the property of the other.
2.  The legal capacity of the wife as a person is not sunk or merged in that of the husband.  The perfect and complete individuality of the woman is manifest in a most striking manner in the matter of property.
3.  In her capacity as a full-fledged 'legal personage', she possesses the absolute right over her property.  She has the same powers as her husband with respect to:

a)  using or disposing of her property according to her will, without reference to anybody else, whether it be the father, brother, husband, son or any other person,
b)  entering into all contracts regarding it, and
c)  suing and being sued
without her husband's consent or concurrence, as if she were still unmarried.  There is no difference in this matter between a man and a woman.

A woman has the same rights as a man in acquiring property.  She may inherit it, receive as a gift or donation, earn it by her own work and toil, and all this remains hers and hers alone.  She is the absolute mistress of her property. She may enjoy it as she pleases or to give it to whoever she likes as a gift, or she may dispose of it by selling it or by any other legal means, at her own will. All these rights are inherent for a woman.  There is no question of obtaining them through special contract (with the husband, for instance)  or by an award depending on somebody else.
4. She can even sue her husband without the intervention of a trustee or other friend.
5. She is not to be under her husband's guardianship in any respect.
6. On the other hand, neither he nor any other relative is liable for her debts, either.  Her property cannot be touched, even if her husband, father or any other relative has liabilities which exceed his assets.

she has the right to carry on her own independent business to earn an income.

7. The husband is legally bound to maintain her, but she has the right to carry on her own independent business to earn an income. She can acquire property of all kinds so as to accumulate wealth, without being legally obliged to share it any of it with her husband.  She is also at liberty, when the need arises, to go out to work in order to supplement an inadequate family income, for instance. This liberty of the woman does not run contrary to the general policy of Islam (which has no hesitation in providing for exceptions whenever circumstances warrant them) which prescribes that the role of headship of the family be undertaken, as a general rule, by the male so as to look after and manage the affairs of the family.  Like every other social organization, the family, too, stands in need of a responsible head in the absence of whom a state of anarchy is bound to prevail. This may lead ultimately to a general privation of all.

... and can collaborate with the man so as to earn her livelihood and develop her talents.

However, this does not mean that a man should be a dictator over a woman in his house, because leadership entails obligations and duties which can only be discharged through mutual consultation and co-operation.

Success in management means a reciprocity of understanding and perpetual sympathyIslam insists that love and mutual understanding and perpetual sympathy rather than conflict and competition should form the basis of family life.

The Holy Qur'an says:

"Consort with them in kindness" (4:19),
and the Holy Prophet p.b.u.h. said:
"Best among you is he who is best towards his wife" (Tirmidhi)

Thus the gauge laid down by the Holy Prophet p.b.u.h. in order to judge a man,  is his behaviour towards his wife.

This is a very sound standard, for no man can ill-treat his wife unless he is spiritually diseased and absolutely lost to virtue or at least partially handicapped.

It is this 'official' relationship within a family that has caused many a doubt, mainly because of the lack of understanding of the basic Islamic principle of checks and balances between the respective rights and obligations underlying the gender relationship.

A steady calmness, a mental and emotional state of being unperturbed, a product of sincere mutual love, affection and thoughtfulness and the genuine willingness to give and take is the object of the matrimonial or gender relationship which Islam goes for. Such a mutually blissful state of mind serves to enhance each other's life.  It is complementary and constructive as opposed to competitive and destructive. This complementary equanimity permeates the family relationship and operates as a balancing principle for gender equality.

Therefore, in Muslim society, far from being a parasite, a woman can collaborate with the man so as to earn her livelihood and develop her talents.

The wife has the right to unilaterally terminate
the marriage at any time. 

In this respect, I will quote the following from Introduction to Islam by Dr. M. Hamidullah:

"In every period of Islamic history, including the time of the Prophet p.b.u.h., one sees Muslim women engaged in every profession that suited them.  They worked as nurses, teachers and even as combatants by the side of men when necessary, in addition to being singers, hairdressers, cooks, etc.  Caliph Umar employed a lady, Shifa' bint Abdullah, as inspector in the market at the capital (Madinah), as Ibn Hajar (Isabah) records.  The same lady had taught Hafsah, the wife of the Prophet, how to read and write.  The jurists admit the possibility of women being appointed as judges of tribunals, and there are several examples of the kind."

a)  He may unilaterally divorce her at any time, without assigning any reason, and

b) she may also acquire a similar right while contracting the marriage.  This she can do by means of negotiating and demanding that the prospective husband delegate to herself or any nominated person/agent the right to divorce herself at any time without assigning any reason.

It must be noted here that, according to both the Hanafi and the Shia law, it is an option of the husband to repudiate his wife by Talak personally, during the continuation of the marriage, or delegate the power of repudiation to a third party or even to the wife herself.  In other words, a wife may acquire from her husband the authorization to divorce herself from him at any time without assigning any reason.  This is called the 'delegation of authority,' leaving it in her (or somebody else's) option to do what she (or that somebody else) likes. This is known as mashiat.

What I am trying to emphasize here is the point that the Islamic law explicitly allows it, although few women  exercise it.  Still, the right is there which she may exercise should she need it.

c) She may also have the husband's right to divorce her curtailed in many other ways all by demanding and having the required legal conditions included in the marriage contract, which conditions would be just as enforceable in a court of law as any of the conditions in a civil contract.

Such a contract, although more advisable to be in writing, can be just as effective as a verbal form of contract.

Islam admits of polygamy only when a woman herself consents to it.

The word 'unilateral,' when it is used in connection with divorce, tends initially to evoke shock in those in the West since such an idea seems to be not only foreign but primitive.  While this shock can be quite severe, it is interesting, and in fact quite amusing, to realize that the shock can be readily overcome through analysis of the marriage breakdown scenario.

As a matter of fact, the modus operandi, even in a bilateral marital breakdown situation (i.e., those conducted by mutual agreement), is always for one of the two parties to take the initiative to call the marriage off.  So in reality, marriage breakdown situations almost always entail unilateral decisions and initiatives.

Therefore, given that there is often an unavoidable, unilateral dimension to the initiation of divorce proceedings, can one not logically argue that one of the two parties already has a unilateral right to divorce the other? This would save them both from an interminable series of debilitating fights, unconstructive bickering, interpersonal complications and acrimonious reactions that would inevitably lead them to expensive and emotionally ruinous court litigation!

9.  A Muslim male may have up to four wives at one time.  In order to be able to validly exercise this right, however, he has to satisfy two prerequisites:

i)   An essential condition that is a precedent to the exercise of this power is that the male has to be able to deal with "equity" (Adl).  According to Radd-ul-Muh­tar, representing the Sunni legal conception, it means only equality in maintenance (Nafqua) and lodgement (Fuknat); and that it does not include in its meaning equality in love and affection, as the Mutazalis contend.  In order to maintain a check on the flagrant non-observance of this condition, some Muslim countries require the husband to satisfy the court that he is able to fulfil this condition before he embarks on the second marriage which is intended to simultaneously continue with the first one.
ii)  He must find a woman who is:
agreeable to leading a polygamous arrangement in life. Because Islam admits of polygamy only when a woman herself consents to that kind of a life.  The law does not impose polygamy, but only permits it in certain cases.  It depends solely on the agreement of the woman.  This is true with the first wife, since no one can force her to enter into a marriage tie without her own consent, and, as such, the act of polygamy depends on her.
It goes without saying that the second woman may refuse to marry a man who already has one wife.  What is true of the first wife is true as well for the second one in this respect. No one can force a woman to enter into a marriage tie without her own free, voluntary consent, either:

(a) as the first and only wife, or

(b) as a second, third, or fourth "co-wife."

It also goes without saying that as a practical consideration,the appropriate time for a woman to exercise this absolute freedom to choose and decide in the matter of marriage is the time when the respective marriage (be it the first, second, third or fourth) is being negotiated and before finalizing the contract.  If a woman does not establish her preference or choice for a monogamous life at the time of contracting her marriage, then later on, in the exercise of his legal right under the marriage contract to which the wife has voluntarily agreed, if her husband goes ahead and contracts a second marriage, it is futile and legally ineffective for her to complain that her husband did not seek her permission (again) before taking the second wife.  In such a case, she has been the author of her own misfortune.

Western polygamy' (adultery) grants no rights to women.

Now, as for polygamy, it must be stated that Muslim law is nearer to reason, for it only admits a polygamous relationship when the woman herself consents to this kind of life.  Polygamy is not the rule, but is the exception; and this exception has a great variety of advantages, social as well as other (and the details would be burdensome here). Islamic legalists are very proud of this elasticity.

We are all too familiar with the de facto polygamy which prevails in the Western society (the by-product of the ever so popular philosophy of the ultra modern liberal minded free-love manifested in common-law cohabitation (living together freely), intimate sensuous free mixing of opposite sexes and all forms of relationships based on mutual consent.  The consequences are so obvious that they don't need further elaboration.

It may be appropriate at this time to point out a positive Indo-Pakistani peculiarity which operates as a considerable check on the exercise on the right of the husband to have as many as four wives.  It is not all that uncommon, even now, for Muslims to settle very large dowers on their wives.  These are seldom exacted so long as the parties live harmoniously together; however the whole dower is payable upon divorce or some other dissolution of marriage, and so a large part of it is made payable at any time, so that the wife is enabled to hold the power in terrorem over her husband; and divorce and polygamy, though perfectly allowable by the law, are thus very much in the nature of luxuries which are confined only to the rich (see Digest of Mohammadan Law by Baillie).

Marriage, according to Islam, is a bilateral contract, based on the free consent of two contracting parties.  In this respect, there is no difference between men and women insofar as the law is concerned.  Illegal practices may exist in varying degrees from region to region and class to class, but the law does not recognize customs which contravene its provisions.  The parents certainly help with their counsel and their experience in searching or selecting the companion of life for their child, but it is the couple themselves who have the final say in the matter.

10. The degrees of consanguinity and affinity within which marriage is prohibited are nearly the same as under the Mosaic law.  However, under the Muslim law, affinity may be contracted by illicit intercourse, as well as by marriage, and in some instances, by irregular desires, accompanied by the sight or touch of certain parts of the person. To these grounds of prohibition must be added some that are peculiar to the Muslim law, and the details of these may be found in any book of Muslim law (fiqh).
11A Muslim male may not marry a female related to him by fosterage.  This prohibition includes not only the foster-parents, but all persons related to them as well within the prohibited degrees of consanguinity and affinity.  This prohibition applies to Muslim women as well.
12A Muslim male or a Muslim female cannot lawfully be married to anyone who is a non-Muslim (such as Buddhist, Hindu, Sikh, Parsi, etc.) with the exception that a Muslim male is allowed to marry a Christian or a Jewess because, although they are non-Muslim, they do belong to a special permitted class called 'People of the Book'.
13Although a Muslim male is allowed to have up to four wives, he cannot lawfully marry two women at the same time who are so related to each other by consanguinity or affinity that, if one of them were a male, marriage between them would be prohibited.  This objection does not apply to his marrying the women in succession; for a Muslim is not prohibited from marrying the sister of his deceased or divorced wife.
14.  Fosterage [i.e. nurturing children by foster parents] has no effect on the condition of the parties between whom it subsists, except that it prevents them from inter-marrying. You will note that, out of these fourteen special points or characteristics of the Muslim personal law, only in one case is a Muslim woman not treated exactly the same way as a Muslim man.  This is the case where a man is allowed to have up to four wives, whereas the woman is not allowed to have four husbands.  In all the other cases, both enjoy very similar, if not almost the same, (if not exactly the same) rights, again with the exception that, although both men and women are prohibited from marrying non-Muslims, men are permitted to marry Christian and Jewish women.

There are, of course, very sound reasons and rationale for these two special situations, but this is not the suitable occasion, nor is there the time or space sufficient to discuss them.  If there is a certain natural inequality between the two sexes, in many other respects of life they do resemble each other.  Therefore, their rights and obligations in these domains will also be similar.

Dower (mehr) is the woman's key to financial and social security.

I have dealt with these points in this way so as to delineate their significance in the general context of Canadian family law, and in the particular context of the Canadian Women's Rights Movements, which somehow seem to be creating some unease and even agitated feelings in certain quarters of the Muslim population of this country.  It is my sincere hope that, by bringing these issues to the attention of our Muslim brothers and sisters, young and old, I will be able to encourage and induce them to discover for themselves if there are any ideological or legal conditions that can force women to take up arms for their rights like their compatriates have in the West.  Or is it merely an inferiority complex and the result of thoughtlessly imitating them which is a consequence of nothing but a pitiful lack of knowledge and even a pathological disinterest in studying their own laws and teachings?

Generally speaking, Muslims seem to be quite content with acquiring the knowledge of their obligations towards their Creator (i.e., all aspects of devotional worship of Allah).  However, there doesn't seem to be a proper realization for the need of education in subjects related to inter-relationships between created beings, which are also described as worldly dealings (muamilat) or mutual obligations of people respecting their interaction among themselves; and the fact is that a very substantial portion of Islamic teachings fall under this category of Muslim law.

In order to arrive at the correct conclusions and avoid making hasty judgement calls as to the superiority or inferiority of Western law over Muslim law (or vice versa), one should take the time and trouble to do an in­depth comparative study of both systems at a level that would at least be above surface reading and superficial interpretations of the Qur'an and the Hadith.  One has to overcome the difficulties of the dry as dust subtleties and the verbal quibbles and semantics of those doctors of law who excel in this speciality.  Because of the very nature of specialization in any subject, specialization in Muslim law also tends to favour its specialists (fuquha) with a particularly technical kind of narrow-mindedness.  It bestows on them a strangely sharp, one-track tunnel vision and finally takes them to the heights of intellectual mediocrity.  "Throughout Islamic history, the jurists have been criticized by the great authorities of the intellectual tradition such as Ghazzali  for their narrow-mindedness, lack of depth and one-dimensional approach to problems that people face as human beings" [Sachiko Murata, The Tao of Islam (Introduction)].

My purpose in stressing this point is to make one realize the fact that, as a community, we Muslims have really neglected to appreciate that Islam made it obligatory, not only upon Muslim men but also upon Muslim women, to acquire knowledge as a necessary condition to their being true believers in God and Islam.  It also goes to the credit of Islam that, as Mohammad Qutb put it in Islam, the Misunderstood Religion, it was the first religion that acknowledged a separate and independent human status of women, and impressed upon her that she/they could not achieve perfection without knowledge.  Acquisition of knowledge was as great a duty of women and also men, for Islam wanted the womenfolk to develop their rational faculties along with their physical ones, and thus ascend to higher planes of spiritual existence, whilst, on the other hand, Europe or the West did not even recognize any such right for women until very recently and did at the end grant it to her only when compelled by the pressure of economic circumstances.

It is sad to see how backward and deficient both Muslim men and women have become in the field of acquiring knowledge.  Here, obviously, we are not confining our eulogy to the spiritual demise of modern university-style of secular education alone.  We are just as much saddened by the crippling realization of the rigor mortis that is rapidly setting in even in the educational institutions of the Muslim community at large.

Women's Equality:  True Position of Islamic Law Summarized

After acknowledging a perfectly equal status as human beings for both men and women, and treating them as equals, entitled to equal rights, some examples of which we have discussed earlier, Islam does, however, differentiate between men and women with regard to their special functions in life a step that has given rise to a great hue and cry by some women's organizations, supported by certain writers, reformers and young men.  To avoid redundancy, Nature has not willed a perfect equality between the two sexes, but has instead willed a complementary distribution of avocations and functions.

It is amazing that in this day and age which is dedicated to specialization and division of labour, when it comes to Islamic approach of the same kind in relation to certain functions in life, such as raising children and family affairs which are presented as a preferable choice for women as a general way of life with readily available, reasonable exceptions and adaptation to individual circumstances, somehow the Islamic approach suddenly becomes unacceptable and is labelled as primitive.

Those interested in women's rights need an in-depth and comparative study of Muslim and non-Muslim ideologies and legal systems.

No law can possibly cover all the different cases or situations that crop up in a human life, nor is its rigid, literal application to all cases considered just sound precepts.  A comprehensive system of life (like the Islamic law) must and does provide rules for married life governing the delicate and diverse aspects of their gender temperaments, too.  For marriage, after all, is primarily a personal relationship, and, depends, like every other relationship between two persons, in the first place, on personal, psychological, rational and physical harmony between the persons concerned.  The law can hardly secure any of these by an order.

Muslim law, therefore, as an obvious necessity, sets general and inviolable limitsThese limits must be there at the least, with men and women to work out the details of it within the prescribed limits.

Women and men are not the same; rather, they are  complements of one another.

Mutual concessions would, therefore, be needed in the interest of the home and for the better comprehension inside the family.  In fact, as Dr. M. Hamidullah puts it, the wiser one is, the greater the concession one makes, especially when one is also more powerful.  The counsel of the Qur'an (4:19), given to the husband regarding the treatment of the wife, gives one food for thought:  "...but consort with them in kindness, for if ye hate them it may happen that ye hate a thing wherein God hath placed much good."  According to the Qur'an (30:21):  "And of His signs is this:  He created for you helpmates from yourselves that ye may find rest in them, and He ordained between you love and mercy."

Women and men mutually form complements to one another (92:187); therefore, they should accommodate one another for their mutual interest. Two equals cannot be in accord with each other in a 100% of cases.  This truth, or reality of life, is well reflected in Islamic teachings and laws.  If one were to state it in a summary fashion, one would say that in Islam, a woman is considered equal to a man in certain respects but not so in certain others.  In certain cases, the rights of women are held to be more important.  For instance, the Qur'an (24:4-5) decrees that if a man accuses a woman of immorality but does not produce proof of this, he is exposed not only to the penalty prescribed for a false accusation, but is also declared in perpetuity as unworthy of giving evidence before a tribunal.  To balance certain rights of men, women are given preferential treatment in the guise of not having the responsibility to support the family (that is the obligation of husbands) and she does not have the responsibility of sharing her property with anyone to give but two examples.

This being the true position of Islamic law in respect of women's equality with men, I would like to give you an interesting excerpt from Muhammad Qutb's Islam, the Misunderstood Religion.  He begins his chapter on "Islam and Woman" with this paragraph, and I quote him verbatim:

"The East today is simmering with a furor over the rights of woman and a demand in her behalf for perfect equality with man.  The most noteworthy among the feverous champions of women's rights are those men and women who, in the name of Islam, have most foolishly, some mischievously, alleged that Islam has in all respects maintained perfect equality between the sexes, while others, thanks to their ignorance of Islam or negligence thereof, claim that Islam is an enemy of woman, for it degrades her and lowers her status, holding her intellectually deficient and assigning her a position very much akin to that of animals.  She is reduced to no more than a mere means of sensual gratification for man and a machine for the propagation of the human species which is sufficient to show how subservient to man she is in the sight of Islam with the result that man dominates her and enjoys an all-round superiority over her.

"Both of these classes of people are equally ignorant of Islam or they intentionally confuse the right with the wrong in order to deceive others and sow the seeds of discord and mischief in society so as to further their own nefarious designs and facilitate the foul game they are out to play."

Let me return to the point where I stated that Muslim law sets certain broad limits within the parameters of which limits men and women have to work out the details of it.  Obviously, in stating this, we are affirming the elasticity, the flexibility of the Muslim law to adapt itself to changing times and climes.  In this connection, just as I have quoted Mohammad Qutb, I would like to quote the very first paragraph from M. Hamidullah's chapter on "The Muslim Woman" as it appears in Introduction to Islam:

"When studying the principal rights and obligations of women in Islam, it must be pointed out at the very outset that, in spite of the capacity of Muslim law to adapt itself and to develop according to circumstances, there will be no question of recognizing the extreme liberty which a woman enjoys today in fact and in practice, in certain sections of social life, both in the capitalistic and the communistic West. Islam demands that a woman should remain a reasonable being.  It does not expect her to become either an angel or a demon. The golden means is the best of things,' said the Prophet Muhammad.
In certain cases, women's rights take precedence over the rights of men.
"If one wants to compare or contrast her position in Islam with that in other civilizations or legal systems, one should take into consideration all the facts, and not merely isolated practices.  In fact, in regard to certain aspects of morality, Islam is more rigid and more puritan than certain other systems of life in our times.  If women seek the freedom to indulge in base, degrading and humiliating sybarites, Islam cannot grant this to them, as it does not allow men to degrade themselves by indulging in such depravities, either."
The Prophet p.b.u.h., in a Hadith which is unanimously held to be sound and authentic, stated:
"It is but for the perfecting of morals that I have been sent to you."
Both for men and women, to paraphrase Hamidullah again, a very comprehensive duty is that of morality.  If spirituality is our duty in our relations with our Creator, morality has the same place in our mutual relations with our fellow beings, which obviously include, in particular, the relationship between men and women, between husband and wife.  Islamic morality is enshrined in its laws which, even as its faith, are based on Divine Commandments.  It is possible that, in the majority of cases, human reason also should arrive at the same conclusion, but essentially it is the Divine aspect which has the decisive significance in Islam, and not the reasoning of a philosopher, a jurist or a moralist, the more so because the reasoning of different individuals may differ and lead to completely different conclusions.

      "An Ounce of Prevention ..."

Sometimes the motive of discipline is found underlying an obligation and practice which may seem apparently superfluous.  In studying and in following the Muslim personal law, it is therefore very important to bear in mind that, (as we have said earlier) "in its ardent desire to attack the very source of evil and not merely certain of its manifestations, Islam, through its law, has imposed, recommended or otherwise encouraged certain practices which astonish us sometimes if we do not take into consideration their profound motives.  All religions say that fornication and adultery are crimes, but Islam would go farther and would prescribe means to diminish the temptations.  It is easy to hope that everyone would develop one's individual morality in order to resist temptations, but it is wiser to diminish the occasions in which persons with weak characters who constitute the majority of men need to engage in a battle where defeat is a foregone conclusion."

It is thus that the Qur'an (33:59) first exhorts women to "put on their jalalib" (a sort of cloak or overall covering from head to foot) in order to (a) diminish occasions of attraction and (b) protect women from the wickedness of men, as the verse explains.  Then came the revelation for behaviour inside the house with friends and visitors:  "Tell the believing men to lower their gaze and be chaste; that is purer for them; lo! God is aware of what they do.  And tell the believing women to lower their gaze and be chaste and to display of their adornment only that which is apparent, and to draw their khumur (veils covering the face) over their bosoms ..." The veil does not signify seclusion at all, but it does diminish temptations that could potentially attract strangers.

In passing, it may be mentioned that there is no legal penalty for the neglect of the Qur'anic recommendation referred to above.  In order to properly appreciate the significance of this aspect of legal penalty, one has to understand the proper context of the scheme of things in this regard.   First of all, human actions are divided into good and evil and are represented by orders and prohibitions.  The acts from which one must abstain are also divided into two big categories:

a) those against which there is temporal sanction or material punishment in addition to condemnation on the Day of the Final Judgement, and

b) those which are condemned by Islam without providing a sanction other than that of the Hereafter.

This obligation of chastity applies equally to men and women.

Because of particular importance attached to morality in Islam, promiscuity (i.e. the indiscriminate mixing of men and women) is ordered to be suppressed by every means.  The rationale for doing so may be traced to my belief that the Islamic legal philosophy seems to be much more finely attuned to the "nip-in-the-bud" approach, whereas, by and large, Western society appears to be somewhat lukewarm sociologically, and oftentimes merely lethargic in a moral sense, and faint-hearted philosophically, when it comes to using such techniques for controlling temptations as a really effective weapon in the arsenal of preventive measures.

If one fears immorality on the part of one's wife, the Qur'­anic injunctions (4:34) set out the procedure of disciplining.  If there is no means of reform, divorce which has been characterized as "the most detestable among the lawful things" by the Prophet, p.b.u.h.  may solve the problem.

This obligation of chastity is reciprocal A little later, the Qur'an (4:128-30) says that if a woman fears immorality (nushuz) or indifference ('desertion' according to the translation of Yousuf Ali and Pickthall) on the part of the husband, she should try to arrange things, but, in the last resort, she, too, has the right to demand judicial separation if unsuccessful (Introduction to Islam, par. 395).

    To Each According to His Need

Next in importance on the subject of Muslim personal law is the law of inheritance from the women's rights perspective.  The most important thing to bear in mind is to appreciate the significance of the particular approach the Legislator takes in this respect.  But it is perhaps necessary to give an explanation that justifies the inequality between sister and brother, between mother and father, and between daughter and son.

It seems that the Legislator has taken into consideration the rights of a women in their entirety, together with the fact that the laws are framed for normal cases of life and not for rare exceptions (for which latter, ":exceptions"  means they are always provided for) and also together with the fact that the shares of different heirs differ according to individual circumstances.  In this connection, we will recall that right at the beginning of this lecture it was mentioned that the woman possesses her property separately, on which neither her father nor her husband nor any other relative has any right whatsoever.

A woman's inheritance is supplementary to a guaranteed lifetime social security.

Secondly, in addition to this separation of her property rights, she has the right to maintenance (food, dress, lodging, etc.); and the court obliges her father, husband, son, and so on,  to satisfy (at their sole expense) the needs of the woman, which is tantamount to a legally enforceable social security, virtually for her entire life - i.e. from the cradle to the grave.

Thirdly, in Islam, the Mehr (dower) is vested exclusively in the woman herself. It is certainly a necessary element without which no marriage is valid.  Thus it will be seen that a woman has lesser material needs to satisfy on her own account than a man, who has heavier obligations.  In such conditions, one can easily understand why a man has a right to a greater part of an inheritance than a woman.

And fourthly, it should be remembered that in spite of the fact that women have the right to be maintained at the expense of men, Islam also accords her the supplementary right to property in the form of inheritance.  It goes without saying that a good household requires mutual cooperation, so that women may also work to increase the income of the family, or to diminish their expenses which would necessarily follow if she does not work. However we are speaking of the rights of women and not of the social practices which may vary accordingly.

The above explanation shows the equality of the situation in that it is only by reason of man's heavier social and financial obligations (as opposed to lesser material needs to satisfy on her own account) that it is only fair that a man should be given the right to a greater part of the iheritace.  This also explains why:

a)    in the presence of a son, the daughter gets half of her brother's portion (when alone, i.e., when there is no son, she gets a half of the total estate, and if there are several daughters, collectively they get two-thirds which they divide amongst themselves in equal proportions [4:11]), and also

b)    in the presence of a brother, the sister gets half of what her brother gets (she does not inherit if the deceased leaves a son, but when alone, she gets a half of the total estate.  If there are two or more sisters, collectively they get two-thirds, which they divide amongst themselves equally.  In the presence of a daughter, the sister gets one-sixth [4:176]).

Man alone is charged with shouldering all financial obligations

Those who are unable to understand the scheme of inheritance and the Islamic outlook of family life, its concept of the 'extended family' as opposed to the secular concept of a 'nuclear family', and its policy and philosophical background may try to belittle this inequality where the daughter and the sister get half of the son's and brother's portion respectively, and ridicule the idea by alleging foolishly that in Islam the woman counts as half of man!!  They do not realize that it is only generally, but not always that the male takes a share double to that of a female in his own category (A. Yusuf Ali).

Muhammad Qtub deals with it this way:

"To the male the equivalent of the portion of two females' is quite natural and justified, for it is man alone who is charged with shouldering all the financial obligations.  The woman is under no such obligation to spend money on anyone but on her own person and toilet, except, of course, when she should head her family, but such a situation is very rarely met in an Islamic society, for so long as a woman has got a relation, howsoever distant, she need not take upon herself the support of her family.  (This does not mean that she becomes a parasite, as I have explained earlier respecting her right to go to work and earn a living in order to augment the family income and work out the details of relationship by mutual consultation and agreement of both spouses.)
The way M. Qtub looks at the situation may be described as follows.  Out of three parts or categories of total family obligations, a woman, on the whole, gets one third of the inherited property to spend

(1) on her person (not on her maintenance, which is the husband's responsibility), whereas a man is given two-thirds of the inherited property so as to discharge the remaining two categories of financial obligations, namely,
(2) towards his wife, and
(3) other members of his extended family (e.g., the children, parents and other relatives, etc.).

So who is better off in comparative, relative terms?

Only a proper understanding of the two aspects of the scheme of inheritance  namely, that shares of different heirs vary

(a) according to individual circumstances, and
(b) by taking into consideration the rights of women in their entirety and not by the reason of the difference of sex can possibly rectify the ridiculously faulty understanding of those who raise objections by merely looking at the situation superficially and out of context.

The law that is followed here is one of the fairest ones known to mankind:  "For every person according to his need."  And so in Islam, the standard to determine what one's needs are, are the social burdens that one has to bear.

Inheritance varies by reason of social/financial obligations not by the reason of gender. Inheritance varies by reason of social/financial obligations not by the reason of gender.

Furthermore, this misunderstanding cannot hold for long if one could only realize that the second part of the very Qur'anic verse which stipulates that:

"Allah chargeth you concerning the provision for your children: to the male the equivalent of the portion of two females"
It also stipulates that:
"And to his [i.e., the deceased's, (e.g. the children's)] parents, a sixth of the inheritance to each if the deceased left a son ..." (Yousuf Ali)
Similarly, the shares of uterine brothers and sisters are equal.  In both these cases, men and women inherit AS MEN AND WOMEN, not as relatives with specific economic and social responsibilities, like son and daughter and brother and sister.  This situation of uterine brothers and sisters (i.e., by the same mother but not by the same father) in the Qur'an 4:12, the relevant part states:
"If the man or woman [whose inheritance is in question (kalalah)] has left neither ascendants nor descendants, but has left a brother or a sister [here interpreted to mean a uterine brother or sister], each one of the two gets a sixth."
So it is that, in the law of inheritance, the respective shares of men and women are balanced in accordance with the dictates of equanimity and fair play.

Status and Safeguards

In spheres of other obligations of a wife towards her husband, even a reasonable, if not in-depth, examination of those obligations will easily establish the fact that:

1. Her obligations are not enforced arbitrarily.  They are meant for the general good of the society of which the wife forms but a part, and

2. Most of her obligations are balanced with similar obligations which the husband has to discharge with respect to her.  As to the few situations where man enjoys in one way or another a precedence over the woman, the basic consideration has been the difference between their respective dispositions.

It does not at all spring from any desire to humiliate or disgrace a woman.  For the position of women in Islam is a very dignified one indeed. In order to get a flavour of how she is treated by Islam, one may only take a brief look at her position as a mother, as a wife and as a daughter:

a)  The position of mother is very exalted in Islamic tradition.  The Prophet p.b.u.h. has gone so far as to say:

"Even paradise is underneath the feet of your mothers."

Al-Bukhari reports that somebody once asked the Prophet which work pleased God the most.  The Prophet replied:  "The service of worship at the appointed hour."  And when it was continued:  "And what afterwards?" the Prophet replied:  "To be bounteous to your father and mother."

The Qur'an reminds us of this often, and it also reminds mankind that it was his mother who had borne him in her womb, suffered much on his account and reared him up after making all kinds of sacrifices.  As regards the woman as wife, in his memorable farewell discourse, pronounced on the occasion of the Last Pilgrimage, the Prophet spoke of women at length, and said in particular:

"Well then, people!  Verily there are rights in favour of your women which are incumbent upon you, and there are rights which are incumbent upon them ... Have therefore the fear of God with regard to women, and I order you to treat them well" (Ibn Hisham).
I have already quoted the well-known saying of the Prophet:
"The best among you is the one who is best towards his wife."
The best among you is the one who is
best towards his wife.

With regard to a woman as a daughter, the Islamic attitude can be guessed from the reproaches which the Qur'an makes against the pagan, pre-Islamic behaviour of resentment and feeling of shame and stigma at the birth of daughters.  The Qur'an reminds us ceaselessly that God has created all things in pairs, and for procreation both the sexes are equally indispensable, each one having its particular function.  And it proclaims:

"Unto men the fortunes from that which they have earned and unto women the fortunes from that which they have earned" (4:32).
3.Thus, against this authority given to men over women, she has the legal right to leave her husband by seeking recourse to a court if he should ill-treat her.  The court will dissolve the marriage contract if it is convinced of the legitimacy of her claim of ill-treatment or her husband's failure to give her the sustenance allowance agreed upon by both of them and if the necessary proof thereof is furnished.

The second course of action available to her is to seek dissolution through the mutual agreement of the husband and wife (khula or mubarat), as mentioned earlier.

My purpose in repeating it here is to bring to your attention an opinion expressed by M. Qutb in this regard.  He says:

"Or she may demand a divorce from her husband on the plea that she hates him and can no longer live with him.  I have heard that some courts do not enforce this principle and do not, on her demanding it, decree a woman's separation from her husband, although the principle is clearly laid down and supported by the personal example of the Holy Prophet and is thus a part of the Islamic law.  The only recourse  for the woman in such a case is that she should give back to her husband the dowry she received from him - a perfectly just condition too for the husband, in the event of divorcing his wife, is obliged to forego in her favour all that he might have given her.

Thus in order to free themselves, both men and women may have  to bear material loss in an equal manner.

The third course of action open to the woman is that she may secure the right to a divorce from her husband (at the time of entering into the marriage contract with him), as was briefly mentioned earlier.  The Islamic law very clearly allows it:

... the right is given by the law and it is for the woman to exercise it.  If she chooses not to use it, for whatever reason, the law is not going to force or compel her to exercise it, because any legal right or option, by its very nature, can be exercised only by the one to whom that privilege is given.  The law can hardly be blamed for the misuse, abuse or neglect of the legal right.

These, among points which I have discussed earlier, are the weapons with which a woman may resort to if such a situation presents itsself.  They perfectly balance the authority a man enjoys over her.  The checks and balances are complementary to each party of the marriage contract.  Underlying this balancing principle of gender equality is the rationale and the motivating factor to create a state of mutual love, peace, tranquillity and a mental frame of mind conducive to equanimity, that the cherished state of remaining unperturbed throughout the duration of that blessed union that is made on earth, yet yields all the heavenly bliss that one could possibly dream of.

So, besides giving women the highest respect and regard, Islam, assigns her a most noble and natural function (i.e. that of nursing the human race) in its scheme as to how such a blessed paradise on earth can be achieved.

In order to accomplish this wholeheartedly, Islam gives an eye to satisfying the demands of human nature as well as those of human society.  So men were charged with the duty of supporting women and providing for all their requirements so as to leave them free from all irrelevant worries.  This being the law for normal life and normal circumstances, the Islamic law still leaves plenty of room for exceptional and extraordinary or abnormal circumstances. Thus permitting the husband and wife to work out their own details and arrangements according to their individual needs and desires so as to accommodate each other.

Complementary equanimity serves as the balancing principle for gender equality. It comes into play through individual, private or reciprocal agreements that ave been based upon common sense, thoughtfulness, mutual regard and respect for the desires and preferences of each spouse.

Women's Rights Under Islam

M. Qutb has asked:

"What, then, is all this uproar by the Muslim woman of today about?  Is there any right or freedom that Islam has not already given her?"
Since the position of the woman in Islam is the same here in Canada as it was in Egypt in the times of M. Qutb, the question he poses has as much more force and relevance to the Canadian scene.  Let us see, then.  In effect, he says:

1. She demands an equal human status.  But Islam has already given this to her in theory as well as in practice before the law.

2. She wants economic independence and the right to participate in social life directly.  Well, Islam was the first religion that gave her this right.

Issues of monogamy, divorce and dower should be settled in the marriage contract.

3. She wants the right to an education.  Yet Islam not only recognizes education but makes the acquisition of it is obligatory upon her as well.

4.  Does she want the right not to be given in marriage without her permission?  Islam has given her that right as well as the right to arrange her own marriage.  If she is not at all desirous of leading the life as a co-wife', then she has the legally enforceable right to say no and safeguard that decision through the means made available to her by the law itself.  This was discussed earlier.

5.  Does she demand that she should be treated kindly and fairly and that she should have the right to ask for a separation from her husband if he should fail to treat her in a just and fair manner?  Islam not only gives her all these rights, but also makes it incumbent upon men to safeguard those rights.

6.  Does she want the right to work outside the home?  Islam recognizes this right of hers, too.

Marriage Contracts

Furthermore, it should not be forgotten that, like all civil contracts, a marriage contract may contain conditions which may be either legal or illegal.  Some illegal conditions will render the marriage contract void unless consummation takes place.  Yet some other conditions may themselves be voidable conditions without touching the validity of the marriage contract.  For example:

1)    Conditions against public morality. i.e. the husband has no right to prevent his wife from frequenting immoral places. For example, If a woman should forego her right to maintenance, or contract that she will not be entitled to any dower (mehr), the stipulation is of no effect and is equally valid.
2)    An illegal condition annexed to a marriage does not cancel the marriage, but is in itself void.  An agreement entered into between the husband and wife before marriage (say in their Prenuptial Contract) that neither of them should inherit from the other is invalid, and, upon the death of either, the survivor would become entitled to his or her legal share in the deceased's inheritance, even if there was no consummation.
3) That the husband shall not contract a second marriage during the existence or continuance of the first.
4) That the husband delegates his power of divorce (tafweez/mashiat) to the wife herself (or to a third person), so that the wife is enabled to effectuate the divorce (by divorcing herself as the appointed agent of the husband) according to her wish (mashiat) at any time, without the need for her to assign any reason. Many women may not deem this as a fit method or technique of divorce, but the right is always there and she may exercise it if she needs to.
5)That the husband can not remove the wife from the conjugal domicile without her consent.
6)That the husband will not absent himself from the conjugal domicile beyond a certain specified time.
7)That the husband and wife shall live in a specified place.
8)That the husband must  maintain the children of the wife by a former husband.
9)That the husband must not prevent his wife from receiving visits from her relations whenever she likes.

A marriage contract is like a blank cheque on a joint account containing almost unlimited funds

10)That the husband will allow his wife to choose to live with her parents if she pleases. The general principle of Muslim law is the same as in other systems of law, namely, that the wife is bound to reside with her husband, unless there is any valid reason to justify her refusal to do so. [contradiction here??????]
11) That a certain portion of the dower shall be paid at once or within a stated period, and the remainder upon the dissolution of the contract through either death or divorce.
12)That the husband shall pay the wife a fixed maintenance.  (See Mohammedan Law by Syed Ameer Ali.)

While Canadian law imposes mutual obligations on spouses to support each other ...

The marriage contract may be likened to a blank cheque which is drawn on a Joint Bank Account containing in reserve an almost unlimited amount of funds (legal rights) the only limitations being the inability to insert illegal conditions by reason of their being against Islamic standards of public morality and public interest/policy.  The account being maintained for the mutual benefit of both the partners in the business of conducting a married life can be operated and funds (rights) withdrawn only jointly, i.e., by (a) co-signing the blank cheque (contract), and (b) filling in or inserting the desired amount of withdrawal (desired rights).

I have stated this in order to stress the point that the use of this lawful technique of inserting specific conditions, serves the function of providing for oneself an exemption from any general principle in Muslim family law.  Since laws are always made for normal circumstances of life, exceptions for abnormal conditions of life (e.g., arising out of emigration from a Muslim country to a non-Muslim country where normal benefits, safeguards and protections of Muslim law are not available by the lack of enforcement machinery) may be made available to both men and women in order to accommodate their specific needs, desires and preferences and thus work out between themselves the details for such arrangements.

Divorce and Maintenance

Muslim vs. Canadian Law

It would also be appropriate to stress another obvious point, because it seems to escape the self-appointed 'experts' whose expertise more often relates to fields other than law or Muslim law, that some consultation with and assistance from those who specialize in the law of Muslim domestic contracts could very easily remove many a doubt and resolve many a problem which appears to have driven a few agitated people recently to the point of hysterical paranoia respecting women's rights.

Take, for example, the recent claim that a Muslim woman under the Muslim law, gets nothing from her husband towards her maintenance or other living expenses after the expire of the probationary period of Iddat, up to which point a husband is obliged to maintain her, whereas the Canadian secular law provides for after-divorce maintenance.

... in Islam, the wife has no corresponding obligation to support her husband.

The truth of the matter is that such people are sad victims of their own delusions about their own exaggerated degree and extent of knowledge which perhaps gets pretty close to a pathetic level of, if not a total ignorance or confusion, respecting the Muslim law as well as the Canadian law.

The Canadian law's provisions in this respect, as I understand them, are like a double-edged sword, in that Part IX of the Family Law Act imposes mutual obligations on spouses' to support each other.  As such, if the husband is poor and the wife is a person of means, then it is she who would be required to make support payments to the husband. And the court may very well direct her to doso.  The court may even decide that neither party would support the other.  However, separation agreements (i.e., by consent of both parties) might stipulate such support payments.

A Muslim marriage contract for a Muslim woman may also include exactly the same, or even much better, protective provisions for her support.  The point to bear in mind is to remember that any legal contract, Muslim or secular, generally speaking, may always, if so desired, include a very common clause to the effect that certain provisions of that contract will inure to the benefit [be of benefit to] of the parties and be binding upon the heirs, executors, administrators, successors and assigns thereof.

Any lawyer should be able to advise as to when and how such a provision may be included in a contract, with or without limitations of any kind.  There is nothing in the Muslim law, as far as I am aware, that would prohibit a wife from looking after her own interests, for instance, by:

(1) settling an appropriate amount of dower to cover the exigencies of life after divorce or husband's death, or
(2) arranging for an annuity, or a fixed monthly amount payable to her upon the occurence of those two events, so long as the Canadian rule against perpetuities is not contravened.

Under Ontario's family law, the wife forfeits half her property at the time of divorce, but ...

As for Muslim Family Law, let me remind you again that the responsibility for the wife's maintenance (nafqua) always remains with the husband, and the wife has no corresponding obligations to support her husband. Also remember that it is the Muslim law principle that has been jealously guarded and enforced by Islamic courts, that a woman's property is hers alone so nobody can touch it.

As a consequence, all that property which a Muslim wife contributes towards family assets' (i.e., all property accumulated during a marriage) remains hers alone and it is not subject to division or sharing by the husband upon the breakdown of the marriage. This is dissimilar to as the law of equal (50/50) sharing in Ontario.  In other words, under the Muslim Law, her 'net family property', as defined by the Ontario Act, remains her own and she has no obligation to share it with her husband.

Such are the cases, among other instances, where the rights of women are held to be more important, and so she gets preferential treatment in comparison to the husband's rights.  So, even those whose choice and preference of secular law over the Muslim Family Law seems to be based on economic advantage alone, it is as clear as day how much better off a woman is under Muslim Personal/Family Law.

When you see that, It becomes even more clear under Ontario's Family Law. So even gifts, inheritance, or personally acquired property as well as the increased value of a matrimonial home (even if it was a gift before marriage) all become family assets' to which Ontario's 50/50 division scheme (on the basis of calculations which determine net family property') applies.  (Even under Ontario law, gifts and inheritance after marriage remain the wife's property and so need not be shared with the husband because they are excluded from Net Family Property'.)

It is important to note that the whole approach to and philosophy of Muslim Family Law and Ontario Family Law is quite different.  Ontario law is based on strict temporal, materialistic and economic principles, whereas the Muslim Law harmonizes these materialistic, temporal and economic aspects with the spiritual aspects of love and affection that leads to life with a sound spiritual base.

The Ontario Family Law Act, 1986, as amended, was "enacted in order to recognize that marriage is an equal partnership."  How successful that scheme has been may be gauged by the interesting remarks of Susan Goodman, a family law specialist, who summarizes it as follows in her lecture addressed to Ontario lawyers:

... under Muslim law, her property remains her own and is not subject to division.
"Although the Family Law Act was intended to treat marriage as a true financial partnership and to create a simple calculation for distributing a family's wealth on separation, the experience under the legislation thus far is not satisfactory.  The mechanical calculation under Part I, with its limited discretion to vary the result, has caused inequitubable results in many cases.  In particular, what used to be a clear and simple issue under the Family Law Act, namely, the division of the matrimonial home, is now of particular concern to spouses.  Although the courts have been consistent in trying to achieve eQtuby, the approaches and results have not been consistent and it is difficult, once again, for the family law practitioner to advise his or her client as to what his or her entitlement is under the legislation.  However, certainty and predictability may not be bad trade-offs for a result which is fair and equitable. IT MAY JUST BE THAT IT IS NOT POSSIBLE TO DRAFT LEGISLATION WHICH WOULD PROVIDE BOTH IN ALL CIRCUMSTANCES."
To her last remarks, I cannot hold myself back from saying:  AMEN.

The Divine Law of Islam has is preferable to such ever-changing man-made laws which never seem to fail to create gyrations, taking man from one extreme to the other and treating the serious business of law and law-making as a yo-yo game of immature children!!  Given a choice, I would rather have the Muslim Family Law to govern myself, any time, thank you.

Who is really responsible for the plight of Muslim women?

There are certain people who maintain that our [Muslim] conditions and values differ. So they consider our [Muslim] conditions are inferior to those of the West. They believe that a woman's condition in the East (and this includes a large proportion of Muslim women who live in the West) is so degrading and backward and so we [Muslims] cannot help but protest against it.  Her Western counterparts have now won their freedom, so why should not the Eastern woman, following in the footsteps of her Western sisters, endeavour to get back those usurped rights as well?

There are certain people who maintain that, though our conditions and values of life differ from those of the West, yet practically the position of women in the East and also the position of a good number of Muslim women living in the West is so low that one cannot but protest against it.  Her Western counterpart has already won her freedom besides a high social status, so why should not the Eastern woman as well, following the footsteps of her Western sister, endeavour to get back her usurped rights?

No doubt this has become true.  Sadly, a disturbing number of women who live in either Islamic or non-Islamic countries are often quite backward, having neither respect nor grace.  They are made to surrender more than they are given. Yes this is true, but may we also ask who is responsible for this sorry state of affairs?  Does Islam or its teachings have anything to do with it?  The fact of the matter is that the miserable plight of some Muslim women is actually the result of economic, politica, lsocial and psychological conditions that prevail in some Muslim communities.  So we must take note of these if we really want to reform our social life and know from whenre these evils actually spring from.

Take the social side of family life for instance.  Are our genuine Islamic traditions really responsible for the backwardness of some Muslim women?  The answer is again an emphatic no.  Our past traditions do not forbid us to acquire knowledge, to work, or co-operate with others in social life, provided it aims at the well-being of the community and entails no adverse effects because of it.

Islam and Islam alone provides a solution to the problems of women no less than that of men.  Let us all strive hard to re-establish and enforce the authentic Islamic law in our lives then.  The only way for us who live in non-Islamic countries is to achieve symmetry and harmony in our lives without any resort to injustice or tyranny. We must and realize in practice our beliefs and ideals so as to try to persuade the governments in Canada to allow us practise our religion as it was meant to be.

Genuine freedom of religion in its truest sense cannot be accomplished unless the government also recognizes the need to implement and enforce Muslim personal/family law only on those who choose to govern their lives according to true Islamic ideals rather than the secular, unreligious principles that currently prevail.

Three Main Questions

This brings me to the point where I will answer a few more questions and respond to some concerns that have been expressed and to also clarify some incorrect impressions that have been entertained by the media as well as some Muslim and non-Muslim individuals and organizations who were able to oblige us by bringing their questions, concerns and reservations to our attention.  We are indeed grateful, because the whole purpose of the second phase of our Muslim Personal/Family Law Campaign was and still is to receive, as it was stated in our Newsletter [this is not published on the Internet], as much valuable information about the anxieties, fears, concerns, questions, feelings and thoughts of people from both within, as well as without, the Muslim community.

1.One of the questions asked, primarly by media people, is whether the Society's intention is to push for recognition of the whole code of Shariah or the Muslim law?

The answer is NO of course .  We are talking about a very small section of Shariah, namely, the Muslim personal law dealing with family relationships ...   marriage, divorce and intestate succession, i.e., inheritance in a situation where a Muslim dies without leaving a will.  ... For without official government recognition of Muslim family law provisions in this regard, a Muslim is forced to go through the expensive, traumatic court procedures in the case of divorce; and, in the case of intestate succession, heirs, survivors of the deceased Muslim individual will inherit according to the secular Canadian law, rather than the Qur'anic, Islamic law. The Society sympathizes with and supports issues of women's rights.

2.The second question both by the media and some Muslim people is:  Does the Society wish the Muslim personal/family law to apply to all Muslims?

The answer is NO again.  Muslims who prefer to be governed by secular Canadian family law may continue that way.  Neither are we responsible for them, nor are they responsible for us in respect of the correctness or incorrectness of the dictates of our respective conscience.  We all will have to answer for our own acts on the Final Day of Judgement.  However, it is only those Muslims who prefer (by prior registration) their own personal/religious family laws to govern their affairs who will be served by whatever facilities may become available for this purpose.  Even for these people, it will not be possible to meaningfully practise what they believe unless they are provided with some sort of government-backed mechanism to enforce and implement the decisions of Muslim Arbitration boards or such other tribunals who, we suggest, could take jurisdiction of their cases by mutual consent of the parties to the disputes.

3.The third question is:  What is the policy and position of the Canadian Society of Muslims with respect to Muslim women generally and Muslim Women's Rights groups particularly?

Our answer is:  Our policy and position respecting women and their concerns is the same as our policy respecting Muslim men and their concerns.  There are no two different or adversarial stands, positions or policies for men and women.  We, as a matter of principle as well as practise, support Muslim women pleading to regain their dignity and equality granted them by the Islamic law and that has been usurped by their male counterparts.  We are sympathizers, not adversaries or enemies.  To our way of thinking, the Muslim woman's remedy lies in getting her educated and becoming objectively informed about her rights under Islamic law.  Our support to them, as it is to men, also lies in our sincere though modest effort to lend them a helping hand in their educational struggles.  Better incomes, better standards of life and more leisure surely provides more opportunities to pursue Islamic studies with the same vigour and zeal as they devote to secular university education.

The Canadian Society of Muslims takes its official mandate (our temporal one, that is) from the main objectives for which it was incorporated, which are as follows:


Our spiritual mandate, of course, like the mandate of every Muslim who is called upon to the service of humanity, emanates from the Divine sources of the Qur'an and the Sunnah.

To that end, our efforts are directed towards BOTH men and women, Muslim and non-Muslim alike; and, as such, every individual who supports our objectives and our mandate is a 'member' of our Society in the broadest sense of the term.

Our conception of membership is quite different from Western corporate concept of membership.  It is much broader and much more inclusive in its scope.  We do not believe in membership fees, nor do our ambitions include distribution of membership cards to all and sundry, the genuine and sincere or the insincere and the bogus.  Nor has counting heads and playing number games ever appealed to us.  Our memberships is, therefore, in this sense, as strong as our supporters are in their dedication and sincerity to promote the cause of Islam.

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