When Mortals Act as Gods

by Nilofar Ahmed

ONE day, a beautiful woman by the name of Jameela, daughter of Abi Ibn Salool, came to the assembly of Prophet Muhammad (Peace Be Upon Him) and said to Him: "O Prophet of Allah, nothing can make my head and his (her husband's head) to be together in one place. "Then she went on to describe how ugly and repulsive she found him to be in appearance. The Prophet asked her if her husband had given her anything as dower.  Jameela informed him that he had given her an orchard of dates as her mehr.  At this the Prophet asked her if she was ready and willing to return the orchard to him.  She replied, "Yes, that and more!" At this he said, "Not more, not more."  Then the Prophet sent for her husband, Sabit bin Qais, informed him of his wife's feelings and intention and conducted a divorce between them.

The Prophet realised the intensity of the wife's repulsion. He knew that the objective of nikah in the Shariah was to establish love and understanding between man and wife in order to produce peace and harmony in the household. He is not known to have ever forced spouses to live a life of hatred, repulsion and continuous strife. 

A companion of the Prophet, Mughira bin Shuba, reported that when he intended to marry a certain woman and to send the proposal of marriage to her, the Prophet asked him, "Have you seen her?"  The man said "No".  The Prophet advised him, "Take a look at her, as this would be more conducive to producing affection, love and pleasant harmony between the two of you." (Musnad Ahmed, Tirmidhi, Nisai, Ibn Majah). So love and harmony between the spouses are essential ingredients of a successful marriage.

The Prophet always advised both man and wife to make every effort to try to make the relationship work.  He never took the breaking up of a marriage lightly.  He is reported to have said that of all the things that are halal or permitted, talaq (divorce) is the most disliked by God (Abi Dawood, quoted in Ma'rif-ul-Hadith, vol.7, p.46, Darul Isha'at, Karachi). But sometimes, personality clashes become inevitable or mistreatment and infringement of the rights of one party by the other produces such ill feeling and hatred that it becomes impossible for both parties to live peacefully in matrimonial harmony with mutual respect. It is for such cases that clear legal allowance has been made for both parties to separate amicably.

The Qur'an has tackled the problem of spouses who cannot tolerate each other in very clear words. Very few topics have been dealt with in such great detail as the problem of talaq. Islam is one of the few religions where the marriage bond or nikah is a legal contract between a man and a woman and not a holy sacrament that can never be broken. According to the Hedaya, the Hanafi legal code book: "In the language of the law it (the nikah) implies a particular contract used for the purpose of legalizing generation." (Book 11: Of Nikah or Marriage). A contract can be made only when all the terms and conditions of the agreement are acceptable to both man and woman. When two people are contracting and negotiating an agreement, it is obvious that they are on an equal footing. There is also a required modus operandi in case the contract has to be broken.

To be able to draw the marriage contract, the Prophet is reported to have said that the father or guardian of a woman should get her permission in the matter of her nikah (Sahih Muslim). Once a young woman came to the Prophet and said that her father had married her off as a minor, and that she had obviously not been consulted. The Prophet said that she could leave her husband if she so wished.  She replied, "I have no desire to leave him. I simply wanted to know my rights."  This was the Prophet's way of honouring the female. If permission and wish of the woman is required for the nikah, or entering into the marriage contract, her opinion is equally, if not more, important when a decision is to be made regarding the breaking of the contract. [#1]

Since a woman has been recognized as an individual with full rights regarding her person, forced marriages are invalid. The venerable Imam Abu Hanifa has been quoted as saying: "An adult female may engage in the (marriage) contract without her guardian's consent" (Hedaya, Chapter on Marriage, Chapter 11: Of Guardianship and Equality). The Hedaya also states the opinion of later followers of the Imam: "It is not lawful for a guardian to force into marriage an female adult against her consent."

Divorce is one of the topics that have been dealt with in great detail in the Qur'an as well as the Hadith. The prescribed method is to pronounce the divorce or talaq once every month for three months at a special time, while the husband and wife keep living in the same house. The common practice in our part of the world [Pakistan] is to pronounce the word talaq, talaq, talaq three times in one breath, not giving any time for tempers to cool and to take a decision after sober thought. The form in which talaq or divorce is commonly practised in Pakistan is the absolute opposite of the method prescribed in the Qur'an. There is need for reform in this area both in the legal sphere as well as consciousness raising in the social and cultural sphere.

We do not know today whether Jameela was married with her consent to Sabit or not, but in her case, the Prophet realized the gravity of the situation and the absence of her will to continue the contract. He did not give her a lecture on having false values, or the fact that a man's appearance does not really matter - the usual stance taken in such cases today in some Muslim countries.

The divorce that he conducted between Jameela and Sabit was the form that has been given the name of khula. In legal terms, a khula is a single, irreversible divorce, when aversion is on the part of the wife. If the man decides to part ways, the procedure he adopts for conducting a divorce is called a talaq. In case the husband initiates the talaq, the Qur'an says, "You are not allowed to take away the least of what you have given your wives." But for the case in which a khula might become inevitable, the Qur'an goes on to state, "If you fear you cannot maintain the bounds fixed by God, there will no blame on either if the woman redeems (or ransoms) herself." (2:229). Thus in the case of khula, the ransom, or compensation, according to the Prophet, was the returning of mehr or dower given by the man to the wife at the time of marriage.

With regard to this compensation, the Hanafi jurists are reported to have stated that the woman "is at liberty to agree to the compensation, as she has authority over her own person". (Hedaya, Divorce, Chapter VIII: Of Khoola). Thus, thirteen hundred years ago, Muslim jurists declared that a woman has full authority over herself in case she decides to separate from her husband, have a divorce on demand conducted for her, and to decide how she would like to settle the dues and compensate the husband whom she has unilaterally decided to leave.

In fact, the Islamic system can derive the husband's permission for the khula in advance at the time of marriage when the nikah-nama (marriage contract) is signed. [#2] Coming closer home, we find that the Pakistani legal document of the marriage contract, or the nikah-nama, recognizes this God-given woman's right. The purpose is to get the husband's consent in advance in case of any unfortunate eventuality.  Later, the woman can conduct a talaq or divorce directly if need be, without getting involved in tedious legal procedure.  But normally the Qazi, who presides over the nikah ceremony, often strikes out this clause in the contract without consulting the concerned parties.  The intending husband and wife should be encouraged to study this form in advance in order to avoid unpleasantness and complications later. The very fact that the woman is supposed to sign the marriage document goes to show that the law seeks her consent and that the marriage is not valid without it.

Honour killings:
One of the most serious problems women of Pakistan, as well as some other Muslim countries, are facing today is that women are being murdered ruthlessly every day under the pretext of saving the 'honour' of the family. A woman who wants a divorce, a woman wanting to marry of her own choice, a woman accused of having illicit relations, a woman who has been kidnapped or brutally raped, are all candidates for the chopping block.

No one seems to realize that a woman is a full individual with rights as well as responsibilities. If she commits a crime, that crime will be a crime against the state. This means that no authority except the state will be responsible for punishing her. Any individual who either murders her or persecutes her in any other way will be, or should be, a criminal in the eyes of the law. The Hudud Ordinance has opened a Pandora's box with all the evil forces aimed at women. Anyone who wants to get rid of a woman accuses her of zina and gets her booked under the Hudud Ordinance.

For the case in which a husband says he saw his wife commit an immoral act with another man, but cannot produce four witnesses to prove it, the Qur'an, in Surah Al-Nur 6-9, has given a very clear procedure which is called lian. The procedure of lian also serves to conduct an automatic and irrevocable divorce and, after this, the couple are separated forever. The purpose of this lian is to protect the woman from false accusations and false accusers and her word is upheld against his. The man is not entitled to any other form of revenge after this. But this Quranic injunction obviously is not being practised in Pakistan. If it was, we would not hear of murders being committed every day in the name of karo kari, 'honour' and the like. [#3]

Marmaduke Pickthall, the British scholar, a convert to Islam and, to date, one of the most popular English translators of the Qur'an, gave a series of lectures in 1927 at the University of Madras. In one of the lectures, which was about the rights of Muslim women, he stated: "The Prophet of Islam is the greatest feminist the world has ever known."  What Pickthall means by this is that the Prophet picked up the cause of women who, up to that time, were treated no worse than property and no better than animals, gave them rights equal to those of men, spiritually, legally as well as materially, treated them as individuals and legal entities in themselves and raised them to a place of honour, which they had never enjoyed before.

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Editorial Comment 

by Syed Mumtaz Ali

#1   It must be borne in mind that this was the situation of exercising the "option of puberty" [khaiyar-e-beluqh] available to a minor (immediately) upon attaining puberty i.e. the age of majority/maturity/adulthood, whereby a woman may either (a) ratify the marriage contract made by her father on her behalf in this capacity as her guardian while she was still a minor or (b) revoke/terminate it. It is to be noted that the woman exercising her right under the "option of puberty" is making a unilateral decision and as such obviously, as the author puts it, "her opinion is equally, if not more, important when a decision is to be made regarding the breaking of the contract." But in the situation where a husband exercises his God-given right to divorce his wife unilaterally, a wife's 'opinion' or 'decision' has no bearing in the matter. 

#2  The interesting way that the author puts it: The Islamic system can derive the husband's permission "for the khula in advance at the time of marriage . . ." is actually a reference to 'Talaq-e-Tufweez': As a man may in person repudiate his wife, so he may commit the power of repudiating [talaq] her to herself (divorcing her to herself) -- or even to a third party. The authority to divorce when delegated by the husband is a delegation of the right/authority to divorce by a husband to his wife is called Tufweez. This is why the wording used by the author ("permission for the khula in advance") is not strictly correct because this is a situation of talaq not khula! And here again, since the wife is acting as an agent of the husband from whom she has received the delegated authority to in effectdivorce her husband, the husband's 'opinion' or 'decision' has no bearing in the matter -- it is the wife's unilateral action period! This is what is meant by the archaic phrase 'repudiating her to herself' i.e., she is exercising the right of divorce as an agent of the husband to divorce her own self.

The author has  made it very clear from the Prophetic tradition quoted in the article that Khula means as follows: When the wife, owing to her aversion to her husband, or her unwillingness to fulfil the conjugal duties, is desirous of obtaining a divorce, she may obtain a release from the marital contract by giving up either he settled dower, or some other property; such a divorce is consequently called khula. When a divorce is effected by mutual consent on account of mutual aversion, it is called mubarat which operates as a release and a discharge on both sides. Khula and mubarat take effect as an irrevocable divorce.

#3     It  seems appropriate, in order to illustrate this point further,  that the following excerpt from The Digest of Moohummadan Law by Neil Baillie be given here because it gives the gist of what is involved, according to Fatawa-e-Alamgiri: "Lian [or 'reciprocal cursing'] according to (Kifayah, Vol. II, page 316) or testimonies confirmed by oaths on both sides, referring to a curse on the part of the man, which is a substitute for hudd-ul-kuzf, or a specific punishment of scandal [which is 80 stripes if the slanderer be free and 40 stripes if they be a slave] and for ghuzub or wrath on the part of the woman, which is a substitute for the hudd-uz-zina, or a specific punishment of adultery. . . . The cause for lian a husband scandalizing his wife in such a manner as would cause her the infliction of hudd, if the parties were strangers to each other, though, it induces only lian between married persons.  When a man has said to his wife, 'O adulteress!' or, 'thou hast committed adultery;' or 'I have seen thee in the act of adultery,' -- lian is obligatory. . ."