The Position of Women in Islam

Introduction

This Article is taken from  THE LIGHT OF LIFE

Woman's status in Islam is one of the most controversial and serious issues of our time, not only among Muslim women and those who represent them in the area of women's rights in the Islamic world, but also among fundamentalist Muslims. The reader may find himself confused owing to the large number of books that treat this subject, for the most part, superficially and partially. Some cover Islam's achievements for the woman,(1) maintaining that it was Islam that gave the woman her rights and honour,(2)while others blame all the disadvantages in the position of Muslim women on Islam.(3)
Since in this book we mean by Islam what the Qur´an and Hadith say, we want to treat the woman's position primarily in these two sources. What rights has Islam given to the woman, and what disadvantages has it brought her? Some commentaries of consequence will also be reviewed. We will also cite the opinions of older theologians and jurists (experts on Sharia), and the comments of the contemporary fundamentalists and their attitudes toward the western and eastern critics who uphold the issue of women's rights.
As will be made clear in the following chapters, it will not be possible to cite the Qur´anic references when treating the woman's position in the Sharia (Islamic law). The Qur´an often remains silent when it comes to certain topics, even if the topics have to do with the heart of the Sharia.(4) There are also matters that the Qur´an touches upon without describing them in detail.(5)

CHAPTER ONE

Women in the Qur´an

Woman appears in the Qur´an in three aspects:
First: As a biological and social being. Second: as a believer. Third: as a character in the biblical salvation narrative.(1)
Apart from the wife of Muhammad's uncle Abu Lahab, and Zainab, one of Muhammad's wives to whom the Qur´an alluded,(2)the Virgin Mary is the most important female character in the Qur´an. The nineteenth sura of the Qur´an is named after her, the only female name the Qur´an mentions. The other women whose stories are narrated in the Qur´an are never mentioned by name, rather they were called the wives of their respective husbands. Among them are: Eve,(3) the wife of Imran (Sura Al Imran 3:35), the wife of the governor (Sura Yusuf 12:30), Pharaoh's wife (Sura al-Qasas 28:9), Lot's wife (Sura al-Tahrim 66:10), Abraham's wife (Sura Hud 11:71), and Noah's wife (Sura al-Tahrim 66:10).
What the Qur´an says about the woman as a biological social being can be considered objective, not diminishing any of her rights, though the prevailing theme in this respect is "Men are the managers of women for that God has preferred in bounty one of them over another, and for that they have expended of their property" (Sura al-Nisa´ 4:34). The Qur´an pictures Mary's mother as being disappointed over the fact that she gave birth to a "female": "Lord, I have given birth to her, a female- (And God knew very well what she had given birth to; the male is not as the female)-" (Sura Al Imran 3:36). We find in such Qur´anic verses Muhammad's attempt to project the Bedouin concept of the woman onto a biblical episode.(4)
As concerns creation, no distinction in rank is found between man and woman. According to Islam, Adam was the first man, as the Bible also says, "He has created the two kinds, male and female" (Sura al-Najm 53:45), and "O mankind, We have created you a male and female, and appointed you races and tribes, that you may know one another" (Sura al-Hujurat 49:13). God addresses His commands, interdictions and statutes to both sexes.(5)
After this brief treatment of the woman as a biological social being and as a character in the Qur´anic stories, we would like to study woman as a believer in the Qur´an. The Qur´anic verses dealing with woman as a believer constitute the basic element and foundation for her legislative and social position. As we shall see in the following chapters, this subject can be grasped by studying woman's status in comparison with man's in marriage, divorce, witnessing, inheritance, veiledness, and concubinage. Inequality between man and woman, at the expense of the woman, stands out clearly in these chapters, in spite of the attempts of zealous Muslims and European orientalists to explain the texts away. These attempts have often lead to the opposite of what the Qur´an means and what the ordinary Muslim understands.(6) We will cite, whenever there are grounds, the opinions of the theologians and jurists who soften the meaning of both the Qur´an and the Hadith.
Those concerned with the Qur´an and those who read it know well that the judgments mentioned in it concerning women form a good part of it. As it is known, the fourth sura is called "Women", and is one of the longer suras. But before looking into the legislative position of women, we would like to touch once again on the status of women in relation to men.

CHAPTER TWO

The Status of Women

There is no Qur´anic distinction between the Muslim and the non-Muslim woman in terms of her status as a biological social being since men are, on principle, in charge of women, and the male is not like the female (Sura Al Imran 3:36). One can understand the prevailing mentality at the time with the aid of the Qur´anic criticisms of the habits of the Meccan idolaters: "Have you considered al-Lat and al-Uzza, and Manat the third, the other? What, have you males, and He females? That were then an unjust division!" (Sura al-Najm 53:19-22). The Qur´an, which condemns the Arab's live burial of girls, conveys to us, at the same time, the prevailing conception of the woman at that time: "And when any of them is given the good tidings of a girl, his face is darkened and he chokes inwardly, as he hides him from the people because of the evil of the good tidings that have been given unto him, whether he shall preserve it in humiliation, or trample it into the dust" (Sura al-Nahl 16:48,59).
If we accept what the Qur´an said about the woman in the pre-Islamic era and what the Muslim historians recorded (trying their best to prove that Islam improved the position of the woman and promoted her from the bottom of the pit to an honourable life), we must admit that Islam was unable to realise a reformation in this arena, for the simple reason that the same conceptions of women still persist in most Islamic countries today. One of the most important reasons for this phenomenon was the pragmatic approach that Muhammad followed, which adopted even the pre-Islamic (Jahili) traditions(1) to uphold his own cause. His ultimate goal was not to establish a new moral code, but to achieve a final triumph for the Shahada, which states, "There is no god but Allah, and Muhammad is the Messenger of Allah," and to force the Bedouins to recognise Allah's sovereignty over all the gods.
As mentioned above, the most important Qur´anic verse the jurists cite as proof of the claim that women are inferior to men is: "Men are the managers of women for that God has preferred in bounty one of them over another, and for that they have expended of their property" (Sura al-Nisa´ 4:34). Al-Tabari says, "By this God (may He be highly praised) means that men are in charge of their women in chastising and restraining them regarding their obligations for God and themselves."(2) He makes further comments, which we will cite: "Ibn Abbas narrated that he said, [Men] are commanders and [the woman] has to obey him in all that God commands her to obey him. Obedience to man is being good to his family." Al-Dhahhak narrated: "Man is in charge of the woman commanding her to obey God. If she refuses, he has [the right] to give her a mild beating, and he had the advantage over her on account of what he provides for her and what he earns." Al-Suddi said, "They should restrain and discipline them."(3)
As to the reason why this verse was given, it is said that a man struck a woman, and she came to the Prophet seeking punishment. The prophet passed his judgment between them, and this verse was revealed, "And hasten not with the Qur´an ere its revelation is accomplished unto you" (Sura Ta Ha 20:114). The verse "Men are the managers of women" (Sura al-Nisa´ 4:34) was also revealed.(4) Ibn Abbas says in a tradition that by "for that God has preferred in bounty one of them over another," (Sura al-Nisa´ 4:34) the Qur´an meant that "God preferred men to women by the former's [sound] mind, dividing of the portions in the booty and inheritance."(5)
Muhammad `Abduh "the Reformer" (1905-1949), who was known for his hostile attitude toward blind tradition, has discovered new aspects of man's superiority over women in this verse: "This superiority is based on two factors; the one has to do with nature, while the other has to do with earning. The natural one consists in the fact that man's disposition is stronger, more accomplished, complete, and beautiful. Perhaps it strikes you as odd that man is more beautiful than woman. Beauty has to do with the completeness and perfection of natural disposition. As far as his living body, man is nothing more than an animal, for the physical nature of both is the same. We see the males of all animals more accomplished and more beautiful than the females, such as you see in the rooster and the hen, the ram and the ewe, and the lion and the lioness. The hair of the beard and the moustache is of the characteristics of the perfection and beauty of man's nature, therefore the hairless man is considered imperfect in nature and wishes he could find a medicine that would cause his hair to grow, even if he were used to shaving his beard. In consequence of this, men are strong in character [disposition], perfect in nature, sound in mind, and of sound judgement in the foundation and end of everything. Doctors and scientists say, 'Sound in body, sound in mind.' It follows then that men are perfect in tasks having to do with earning, for they are more capable of earning a living, inventing, and tackling affairs of everyday life. For this reason they have been commanded to stand above women, protect them, and to carry the onus of general presidency in the milieu of the domestic life of the family. For it is vital that every society should have a president to whom people ought to refer in the standardisation of public welfare."(6)
Abbas Mahmud al-Aqqad (1889-1964), one of the most renowned Arab men of letters in the twentieth century, sets an enviable record in his attacks on women. He says, "Woman has been engaged in preparing food since mankind started cooking in pre-historic times. She has learned it since childhood in the dwelling-places of the family or the tribe. She likes food and craves for it. Yet after she inherited this occupation for thousands of years, she is still not as good at it as the man who dedicates a few years to it. She keeps up with him neither in the high quality of well-known dishes nor in innovating new varieties of improved ones. She is unable to manage a kitchen in which several females and males work together. The same goes for the craft of embroidery and tailoring, which are among the old-time crafts women practised at home. Women rely on men to make their clothing rather than on themselves." Women, as al-Aqqad claims, have no part in knowledge or scientific thinking, even the well-known women in the field of science could not attain any success but for the support and guidance of the men, "The name of Madame Curie is the first name that is mentioned by those who maintain full equality of the two sexes. Even if it is true that this lady matches first class male scientists, this will always remain an undeniably rare exception. The truth about this specific lady keeps her from being reckoned among the exceptional cases in scientific researches, since she did not work apart from her husband and since her work was neither concerned with invention nor with innovation."(7) As to hypocrisy and double-dealing, these are two inherent characteristics of women: "Female hypocrisy, which can be attributed to women especially, is due to a certain weakness in womanhood that she abides by in every society, and is not imposed on her by manners or laws. She does not part company with it by choice or by force- she may even refuse to do so if the choice was hers... There is a major difference between man and women in sexual intercourse- in most days of her period the sexual desire is separated from the reproduction instinct, whereas the sexual desire for man is never an amusement."(8)
This al-Aqqad who is viewed by many people in the east and the west as a genius, believes that woman is a necessary evil, and that she does not possess any talent or virtue at all. "There are none among the estimable ethics of women that are more characteristic of and natural to her femininity than these three qualities: bashfulness, compassion, and cleanliness. She depends on these in her nature or in man's nature. This should have been rather her practice in all the other qualities that men mastered from old... The inborn compassion is not fit for evaluating woman's mercy, since it has to do with what the psychic forces and the power of conscience enjoin on her. It is the comparison between women's and man's compassion for the children of others that is fit as a standard of evaluation. Man could be seen showing compassion for his step-children as much as he does his own, treating them equally even if it were out of courtesy and consideration. Woman, however, behaves differently in her treatment of her step-children; the children sometimes do not escape torture, malevolence, deliberate humiliation, and harm."(9) "The primary point of reference regarding morals with women is sexual restraint, which is an instinct that the female animals have in common, and is not a willful act that distinguishes mankind in particular. There are worlds of difference between this sort of sexual restraint and the virtue of bashfulness, which is regarded as a human moral virtue."(10)
Regarding the advantages man has over women, Ahmad Shalabi says, "He is taller than she, his bones are bigger, and she weighs less than he does. His muscles are stronger, his brain is bigger than hers, and likewise his heart."(11) The sayings of Muhammad concerning women that could be culled from the Hadith do not speak in her favour. There are traditions indicating that Muhammad describes women as though they were deficient in intelligence and understanding. Abu Sa`id al-Jundi narrated: Once the Messenger of God went out to a prayer place to offer the prayer of Greater Bairam or a Lesser Bairam. Then he passed by the women and said, "O women! Give alms, as I have seen that the majority of the dwellers of Hell-fire were you [women]." They asked, "Why is it so, Messenger of God?" He replied, "You curse frequently and are ungrateful to your husbands. I have not seen anyone more deficient in intelligence and religion than you. A cautious sensible man could be led astray by some of you." The women asked, "What is deficient in our intelligence and religion, Messenger of God?" He answered, "Is not the evidence of two women equal to the witness of one man?" They replied in the affirmative. He said, "This is the deficiency in your intelligence. Isn't it true that a woman can neither pray nor fast during her menses?" The women replied in the affirmative. "This is the deficiency in your religion," he said.(12)
In Islamic theological sources, it is put forward as an evidence of the women's deficient intelligence that there is none among them who was known for being knowledgeable or a genius. "As to the deficiency of intelligence, it is known that women have rarely minds as good as men. Perfection and excellence are rarely and exceptionally found among them. Women of reasoning and good discretion are very few in number. Men of this quality, however, are countless."(13) The scholastic expert of fiqh, who showed this magnificent proof of the deficiency of women's minds, could have found the main reason for this in the Hadith of Muhammad: "Do not let [women] into all of the rooms, and do not teach them how to write. Teach them to spin and recite Sura al-Nur."(14) Or "Do not let your women live in rooms, do not teach them how to write, and seek assistance against them. Constantly tell them 'No', because 'Yes' tempts them to ask a lot."(15)
One who studies the sayings of Muhammad pertaining to women cannot help but question why women were created. "One woman, of 99 women, is in heaven, and the rest of them are in Fire."(16)"Fire has been created for the senseless, the women, except for the one who obeyed her husband."(17) "Men perish when they obey women."(18) "Men are in a good state as long as they do not obey women."(19)
Muhammad gives us another reason why men should fear and beware of women: "Beware of women; the first temptation among the Children of Israel was caused by them;"(20) "I fear no temptation that would befall my people but for the temptation of women and wine;"(21) and "But for the woman, man could have entered paradise."(22)
The woman has no right to behave as though she possesses any authority or influence over her husband, for Muhammad "forbade women to talk except by leave of their husbands."(23) Also "Women are not allowed to go out except out of necessity, but for the occasion of the two feasts: The Greater Bairam and the Lesser Bairam. They are also not allowed to walk down the roads, but keep to the edges of the street."(24) "Women are not allowed to use the middle of the road."(25) "Women are not to be greeted nor to greet."(26) "A believing woman is the same among women as a white-footed raven among the ravens. Fire has been created for the senseless, and women are the most senseless of all."(27) If the woman wanted to clear herself of this charge, she had to serve her husband.(28)
In another tradition Muhammad described women as "unclean" creatures. In a Hadith, Muhammad says, "Three things corrupt prayer: Women, dogs, and donkeys."(29) "The Messenger of God said, 'A man's prayer is interrupted if a donkey, black dogs, and women pass by him nearby.' So I said, 'What difference is there between the red one, the yellow one, and the white one?' He said, 'My brother, I asked the Messenger of God just as you asked me. He said, "The black dog is a devil." ' "(30) In a another tradition given by Ibn Abbas, the fire-worshipper, the Jew, and the pig are listed alongside the woman as things that corrupt prayer. The prayer of a Muslim is corrupted if "they pass by him as far as a rock could be thrown."(31)
There are several sayings in which Muhammad reduced women to the level of animals. "Woman is a vile beast,"(32) and "I think that women were created for nothing but evil."(33) It seems that the woman as a source of mischief and evil omen is a rooted concept in Muhammad's mind. This anti-female concept, which goes back to the Jewish traditions,(34) accompanies us in all books of Hadith: "Bad omen is in three things: horses, woman, and the home."(35)
"'The woman has two things to cover her: the grave and marriage.' It was asked, 'Which of them is better?' He said, 'The grave.' "(36)
After all these traditions and stories, which make up a small part of the copious Islamic traditions about women, the words of Mahmud Shaltut seem to be pure mockery. He says about the status of women in Islam, "It is a status that the woman had not enjoyed in any divine law, nor in any society that people set up for themselves."(37) He adds, "Islam has granted women all that is good, and protected her from all that is evil. The only thing it denied her was the liberty that false culture [namely, the western culture] has pushed her into. That liberty causes the western woman, whenever she retreats to her human conscience, to weep tears of blood over her forfeited respect, misused honour, and lost happiness."(38)

CHAPTER THREE

Women's Image in Arabic Literature

The conceptions of Muhammad and the experts of Islamic fiqhhave influenced Arabic literature and shared in the formation of an "imaginative" picture of woman in literature. The reader may possibly ask if this topic is necessary. In fact, we are forced to quote what has been written about women in the writings of the Arab men of letters, because they have not lost any of their popularity, especially those that have been compiled during the Abbasid era and after. There is no escaping the study of such literature if one wants to present a realistic picture of women in Islam.
Attributed to `Ali Ibn Abi Talib is the saying, "Woman is all evil; the most evil thing about her is that she is indispensable."(1) "As to the counsel of women, it is a sign of the hour of doom."(2) "Woman is not in charge of anything that goes beyond herself; for woman is a sweet basil not a governess. She should not promise by her own honour, nor should you provoke her ambition by asking for the mediation of another [woman]. Never be jealous where jealousy is not proper."(3) ) Al-Jahiz (d. 868) holds the same view as Muhammad regarding the deficiency of women's intelligence as he says, "We have seen women; they are weaker in mind than men, while children are weaker in mind than they are. They are also more stingy than women, and women are the weaker in mind in comparison with men. We do not know of anyone who is more wicked than a child: he is the worst liar, the worst gossip, the most evil of mankind, the least in doing good and the most cruel of all."(4) The Ummayad poet al-Farazdaq compares women to serpents. He says,

They are amiable with their husbands when they withdraw;
When they go out, they are like snakes.(5)

In al-Bayan wa al-tabyin, women are mentioned in the same section as imbeciles, mentally handicapped, and children.(6) Ibn `Abd Rabbih quotes the following verses from `Ubada, considered to be the one who knew the most about women:

Ask me about women for I am knowledgeable
And a doctor of the maladies that women cause.
If a man's hair grows gray, or if his money decreases,
He will have no part in their love.
They desire wealth wherever it is found,
And the prime of youth is irresistible for them.(7)

Ibn `Abd Rabbih is not satisfied with quoting the poems and tales of the Arabs, he also quotes from the proverbs of the prophets: "In the wisdom of David, peace be on him, it is said, 'I found among men one in a thousand, but I found none among all women.' "(8)Yet, despite her deceit, unfaithfulness, and other reproachful qualities, women "and especially concubines", are a property that man cannot do without. In describing the ideal concubine, Caliph `Abd al-Malik Ibn Marwan (685-705 A.D.) said, "If you want one for pleasure, take a Berber woman, for bearing children take a Persian woman, if you need one for service take a Christian woman ["rumiyya": also, a Byzantine woman].(9) We know also from the proverbs of literary writers that woman increases in evil in her old age, "They said that the end of man's life is better than its beginning; his patience increases, his resistance [to temptation] becomes stronger, his flame dies down, and his trade is made perfect. The end of women's life, though, is worse than its beginning; her beauty vanishes, her womb grows barren, and her morals deteriorate."(10) As to her beauty, it is said, "A fair handmaid is coloured by the colour of the sun; in forenoon she is pale, and in the evening she is yellow."(11) "Yet, mere beauty is not enough; she must also be smiling and patient, proud among her own folk and humble with her husband, and fruitful."(12) "When someone wants to have a strong child, he should make her angry, and then have sex with her."(13)
So far we have examined the contents of old books that deal with women. It is natural to assume that Muslim scholars and writers nowadays hold other standards and conceptions about the "gentle sex", but the reality is disappointing. Abbas Mahmud al-Aqqad, who cannot be relegated to the fundamentalist circles, is considered an extremist in attacking and despising women. Al-Aqqad claims that his warped opinions of women are backed up by modern sciences, and he quotes Christian Ehrenfels' apology for polygamy: "Polygamy is necessary for the preservation of the Aryan stock."(14) Al-Aqqad's opinion about women will be quoted in the coming chapters, but for now we will give al-Aqqad's "philosophical" analysis of the phenomenon of immodesty amongst women: "This modesty, which is enjoined on woman by morals, exists in women in proportion to how she feels about her husband and how he sees her. If women gather together far away from the eyes of men, they forget about modesty. Then they care for nothing that they would usually observe while they are still in the presence of men. The woman does not cover herself in the [public] bath, unless she has a defect or for fear that her peers and companions should compete with her."(15)
Now if we overlook the romances included in classical Arabic literature in which women appear perfectly equal to their lovers or husbands, we find that both classical and modern writers have a very negative picture of women. This discreditable and troubling issue has been criticised by the Islamic thinker Jamal al-Din al-Afghani (1838-1897 A.D.). The Egyptian writer Qasim Amin, who dedicated the better part of his life to the struggle against the wrong done to women, agreed. The issue of women, as Qasim Amin viewed it, was an issue of civilisation and a social problem that needed to be solved, otherwise any progress in the Egyptian society would only be an unattainable dream. He said, "Women are equal to men, their miserable conditions are due to the injustice of men, who never gave them the chance to act in freedom and in the spirit of responsibility, but rather forced absolute ignorance upon them by all sorts of means."(16) The root of this injustice is the ignorance of Muslim scholars of the nature of women. "It is so strange that scholars have outstripped one another in binding and fettering women through all the inhuman laws and ordinances they could imagine, as though she were a devil to be locked up. If fact, they were shamefully ignorant of her circumstances."(17)

CHAPTER FOUR

Marriage

The Qur´an uses two words to designate the marriage contract: zawaj (meaning marriage) and nikah (meaning wedlock). The word nikah is the most frequently used one in the Sharia. It denotes four things in the Qur´an, according to the experts of Islamic fiqh: marriage, sexual intercourse, bestowal, and marriageable age. As to the first meaning, the Qur´an says, "Do not marry idolatresses until they believe" (Sura al-Baqara 2:221). The same meaning is found in Sura al-Nisa´ 4:25, where it says, "So marry them, with their people's leave," and Sura al-Nisa´ 4:3, "Marry such women as seem good to you....." Also in Sura al-Nur 24:3, "A fornicator may only marry a fornicatress."

The second meaning of the word nikah, which is sexual intercourse, occurs in Sura al-Baqara 2:230, "Until she marries another husband." In this verse the actual sexual intercourse between husband and wife is meant.

The third meaning, marriage of bestowal, is found in Sura al-Ahzab 33:50, "And any woman believer, if she give herself to the Prophet, and if the Prophet desire to take her in marriage, for thee exclusively, apart from the believers." This sort of bestowal is lawful only for the Prophet.

The fourth meaning, marriageable age, is in Sura al-Nisa´ 4:6, "Test well the orphans, until they reach they reach the age of marrying."(1)

Jurists are in unanimous agreement on the fact that nikah means sexual intercourse and that it is used to denote the marriage contract as a figure of speech because the marriage contract is the legal means for having intercourse.(2) Nikah is permissible only after the marriage contract, concluded between the bridegroom and the bride (al-`aqidan), and the bride's guardian in the presence of at least two witnesses. Nikah has two elements without which it cannot be fulfilled: the first is al-´ijab (response), which is the utterance coming from the guardian or his substitute, and the second is qubul (consent), which is the utterance coming from the husband or his proxy. Then the husband has to pay a bridal gift and a marriage portion.(3) The consent of the bride's guardian is essential for making the marriage contract legal, because "Wedlock cannot be concluded except through a guardian."(4) The subject of the marriage contract will be treated in detail later on. Marriage is not a sacrament in Islam as it is in the Catholic church; rather it is a solemn agreement or binding compact that should not be tampered with. The Qur´an says, "You have had intercourse with each other, and they have made a solemn agreement with you" (Sura al-Nisa´ 4:21). Wedlock in Islam is based on civil contract, which need not be recorded in writing.(5)

CHAPTER FIVE

The Rights a Man Acquires over his Wife

Jurists have dealt with the rights of husbands and wives over each other and emphasised the rights of the husband over her wife. Evidence of this fact is the statement of al-Shafi`i: "Wedlock is a sort of bondage [slavery]." She is his slave. A wife ought to obey her husband absolutely in everything he asks of her concerning herself, provided it does not entail disobedience to God.(1) There are Hadiths supporting this position: "God does not regard a woman who does not thank her husband, since she cannot do without him."(2) "It is not permissible that humans should bow down before humans. If humans were permitted to bow down before humans, the wife would have been commanded to bow down before her husband because of his great right over her."(3)`A´isha narrated: "I asked the Prophet, 'Who among people has the greatest right over the woman?' He answered, 'Her husband.' I asked, 'Who has the greatest right over the man?' He answered, 'His mother.' "(4) In Ihya´ `ulum al-din, we read, "There was once a certain man who set out on a journey after having covenanted with his wife that she should not come down from upstairs to downstairs. Her father was downstairs. When he fell ill, the woman sent for the Messenger of God asking his permission to go down to see her father. The Messenger of God said, 'Obey your husband.' The father died. She tried again to get permission from him to see her father, but he said again, 'Obey your husband.' Her father was buried. The Messenger of God sent a message to her that her father was forgiven on account of her obedience to her husband."(5) In al-Ghazzali's opinion, the obedience of the wife to her husband is one of the pillars of faith. "If the woman performs her five [prayers], fasts her month, keeps her genitalia [remains chaste] and obeys her husband, she enters the heaven of her Lord."(6) Al-Ghazzali attributes this narrative to Muhammad. In another narrative, `A´isha said, quoting Muhammad, "A girl asked the Messenger of God, 'O Messenger of God, what right does a husband have over his wife?' He said, 'If he was covered from the parting [of his hair] to the bottom of his feet with matter [or pus], and she licked him, she still has not thanked him enough.' "(7) Ibn Abbas narrated, "A woman from Khath`am came to the Prophet of God, and asked him, saying, 'I am not a virgin, and I want to be married off. What is the right of the husband [over the wife]?' He answered, 'The right a husband acquires over the wife is that she should not keep herself away from him [even] if they were on the back of a camel and he desired her and tried to take her. It is his right that she should not give anything belonging to his house except by his permission; if she does so [without his permission], she will be guilty and he will get the reward. It is his right also that she should not fast voluntarily except by his permission; and if she fasts and goes hungry and thirsty, it will not be accepted of her. If she goes out from his house without his permission, the angels curse her till she comes back to his house or repents.' "(8) In a weak tradition Muhammad is said to have stated that "the woman is nearest to her Lord's Face when she is in the innermost part of her home. Her prayer in the courtyard of her house is better than her prayer in the mosque, and her prayer in her home is better than her prayer in the courtyard of her house, and her prayer in her chamber is even better than her prayer in her home."(9)

Perhaps this stress on keeping the woman confined to her chamber stems from the statement of the Prophet of Islam: "The woman has ten nakednesses; when she marries the husband covers one nakedness, and when she dies the grave covers all ten of them."(10)

Al-Ghazzali lists the rights a husband acquires over his wife as follows:

The rights a husband acquires over his wife are numerous. The most important are two: The first is protection and covering, and the second one is desisting from demanding anything that is beyond the needful, and refraining from what he earns if it were from an unlawful source. This was the way of women in the past. When a man would go out of his home, his wife and daughter would say to him, "Beware of ill-gotten gain; we can endure hunger and hardship, but we can by no means endure the Fire." A man in the past went on a journey. His neighbours resented his departure, and said to his wife, 'Why do you consent to his travelling although he left you no provision?" She replied, "I have known my husband as an eater, not as a provider, and I have a God that provides for me. The eater will perish and the Provider will remain." One of the duties of the wife is not to squander his money but keep it. The Messenger of God said, "She is not allowed to feed [people] from [the provision of] his house except by his permission, barring damp food that is about to rot. If she feeds by his approval, she receives the same reward as he. If she feeds without his permission, he receives the reward and she the guilt." Her parents have the obligation to teach her good conduct and pleasant treatment of the husband.

Some of the rights he acquires over her are:

She should keep her husband's honour in his absence, seek his pleasure in all her affairs, not deal unfaithfully with him in terms of herself or his money, and not go outdoors except by his permission. When she goes out by his permission, she should be shabbily dressed and should seek secluded areas, keeping away from the streets and the market-places, and should be careful not to let a stranger hear her voice or recognise her. On her errands, she should not let herself be known to her husband's friends, but rather conceal her identity from anyone she thinks knows her or vice versa. Her main concern ought to be how to mind her affairs and manage her home, eager to perform her prayer and her fasting. If her husband's friend happens to ask for permission [to come in] while her husband is not there, she ought not to inquire or answer his question out of jealousy over herself and her husband. She should be content with the provision God gives her husband, promoting her husband's rights over her own and her family's rights, observing cleanliness of her body, ready always to let him enjoy her whenever he desires, having compassion for her children, being protective over them, refraining from cursing the children or contradicting her husband. Muhammad said, "Both I and a woman with burnt cheeks, such as these, will be in heaven-- a woman who was hated by her husband, locked herself up, and tended to her daughters until they married [or died]." He also said, "God has forbidden all mankind from entering heaven before me, yet I will look to my right and behold a woman will go ahead of me to the gate of paradise. Then I will say, 'Why is this one going ahead of me?' And it will be answered, 'O Muhammad, this is a fair and beautiful woman who cared for orphans and was patient with them till they reached their destiny, and God thanked her for this.' " The accepted standard of behaviour from her is that she should not boast over her husband for her beauty, or despise him for his ugliness. Then I knew she was a godly woman who had a husband for whom she adorned herself.

She should practice good behaviour and keep herself secluded in her husband's absence, and to return to playfulness and exhilaration [which bring pleasure] in her husband's presence. She is not to hurt her husband by any means. Mu`ads Ibn Jabal narrates, "The Messenger of God said, 'Whenever a woman hurts her husband, his wife of the wide-eyed houris says, "Do not hurt him. May God fight you [or damn you]! With you he is a passer-by, who is about to leave you to come to us.' "(11)

The Hanafite jurist al-Kasani sums up man's rights over his wife in this statement: "He has the right to look at her and touch her in her lifetime, because intercourse [which is established already as his good right] is beyond looking and touching. And since it [i.e. intercourse] has been established as lawful, then looking and touching are established as so after the same manner. It is disputable, however, whether to take pleasure in her apart from the sexual organs when she has her menstrual period or in child-birth. Among these rights is "the possession of pleasure", which means that the husband has the exclusive right to all of her body for the purpose of pleasure, or the possession of herself or her soul as a right for self-gratification, an opinion which is agreed upon by all our theological leaders, for the purposes of intercourse cannot be fulfilled without these.(12) Among these rights is keeping her locked and confined, which means the right to forbid her from going out in public. This is based on God's command to "house women" (Sura al-Talaq 65:6). The command to "house" them actually forbids a woman from going out and showing herself in public, because the command to do a certain thing forbids one from doing its opposite. Were she not forbidden from going out in public, she would be a temptation, and parentage of the children would be in doubt, for this makes a man suspicious and causes him to deny his parentage.(13) The man has the right to forbid his wife and daughters from going out so that there should be no temptation, and because of the danger of "the disorder of parentage."(14)

At the end of this chapter I would like to present a list of a woman's duties to her husband as quoted from a book recently published in Arabic. These are the things she should not do:

1. She should avoid standing on the balcony.
2. She should conceal herself while welcoming men at the door.
3. She should not go out after she has used perfume.
4. She should wear her dresses long and not imitate unbelieving women.
5. She should not speak in a loud voice.
6. She should not walk in the middle of the road.
7. She should not mingle with men or shake hands with them.

The author then lists in brief what she should do in the following:

1. Speak softly and honourably when you are walking.
2. Walk by the side of the road, and keep away from the middle.
3. Beware of standing by the door to welcome guests.
4. Do not go out of your home frequently for unnecessary things.
5. Do not lower your veil outside your house under any circumstances whatever.
6. When you stand in the balcony, take care what you wear.
7. Beware of shaking hands with strange men. Don't travel without a guardian relative. These two actions are abominations and are the pitfalls of the women of our time.
8. Watch not to waste your time uselessly; so praise [God] and ask for His pardon frequently in an inaudible voice.
9. Avoid turning around and always look down.
10. You are weak and in need of your Lord's mercy; so raise your hands up to Him constantly asking for His pardon for your guilt, and for health for your good deeds.(15)

CHAPTER SIX

The Rights a Woman Acquires over her Husband

Muhammad said in his final address, "And now, people, you acquire certain rights over your wives, and they do you. The right you acquire over them is that they should not let someone you hate sleep in your beds, and not to commit a manifest obscenity [or adultery]. If they do [commit it], then God has given you permission to leave them alone in their beds and give them a beating, though not too hard. If they give over, they get their provision and clothing with kindness; I command you good-will for your wives, for they are your captives(1) that do not own anything of their own. You have taken them by the faithfulness of God, and made their sexual organs lawful for you by the words of God."(2)

`Abdullah Ibn `Amr Ibn al-`As narrated: "The Messenger of God said to me, 'O `Abdullah! Have I not been informed that you fast daily during the day and offer prayers every night throughout the Fast?' `Abdullah replied, 'Yes, O Messenger of God!' The Prophet said, 'Don't do that; fast for few days and then give it up for few days, offer prayers and also sleep at night, as your body requires, and your wife has her rights.' "(3) Hakim Ibn Mu`awiya al-Qushayri, quoting his father, said, "I said, 'O Messenger of God, what is the right that the wife of any of us acquires over him?' He replied, 'To feed and clothe her, if you yourself have food and clothing. Do not slap her on the face, nor utter obscenities to her, nor desert her except inside the house.' "(4)

Protection by the husband is one of the rights that the woman acquires. Muhammad said, "I warn you about the right of the two weak ones: the orphan and the women."(5) Sexual intercourse is another right she has over him, because it is the duty of the husband as long as he has no excuse. Malik holds this same opinion.(6) If he travels for any reason or for any necessity, she must forego this right no matter how long his journey lasts. But if he has no substantial excuse, and makes excuses for not having intercourse several times, then they can be separated [by law].(7) If he has a free woman for wife, he has to sleep with her once every four nights, and if he has four wives, each of them receive one night every four nights.(8) He should treat his wives justly. Muhammad said in the Hadith, "If a man has two wives, and he shows favour to one against the other, he will come on the Resurrection Day with a limp."(9)

CHAPTER SEVEN

The Importance of Marriage in Islam

Marriage, according to the Qur´an, is a desirable thing: "Marry the spouseless among you, and your slaves and handmaidens that are righteous" (Sura al-Nur 24:32). It is the religious tradition (sunna) of the Prophet Muhammad: "Wedlock [nikah] is my tradition in religion; whoever does not apply my law has no part with me. Marry, because I will vie the nations in number by you. Whoever has the ability to marry, let him marry, and whoever has not the ability, let him resort to fasting; for fasting is as good as castration."(1) Marriage is also half of the faith: "When the servant marries, he completes half of his religion; so let him fear God in the remaining half."(2) According to the jurists it is an obligation when one has a strong desire; namely one is guilty if he has a desire for a certain woman, is financially able to fulfill it (in marriage), but does not marry. He has committed a cardinal sin.(3)

Muhammad has prohibited celibacy.(4) In Hadith we read: "There will be none in paradise but have two wives; he will be able to see their legs even if they are behind seventy garments."(5) In Musnad of Ahmad Ibn Hanbal, it says, "Our tradition [sunna] is wedlock. The most evil among you are those who are celibate, and the vilest among your dead are those who are celibate."(6) Muhammad once asked a man named `Akaf if he was married, the man replied, "No, by God." He asked, "Do you have a concubine?" The man answered, "No." Muhammad asked, "Are you well off?" He said, "Yes." Muhammad said, "You are, then, a brother of the devils. And if you are a Christian, you are also their brother.(7) But if you are one of us, our life-style is giving in marriage."(8) Muhammad aroused men's interest in marriage because women bring blessing and wealth: "Marry women because they bring possession"(9) and "Two prostrations by a married man are better than seventy by someone who is single."(10)

We learn from the stories of tradition that marriage is not only the law of Muhammad, but the law of all the prophets, as well. "Whoever embraces my religion, and the religion of David, Solomon, and Abraham let him marry so long as he can; otherwise let him fight for the cause of God. If he is martyred [dies in war], God will wed him to the wide-eyed houris. The only exception to this is that if he attends to his parents or if he is under binding obligation to people."(11) So the one who does not marry exposes himself to the curse of God and the angels: "The curse of God and of angels and of all the people is upon anyone who lives in celibacy-- there is no celibacy after John, the son of Zachariah."(12)

The most important reason for marriage is bearing children. Jabir narrated, "While we were returning with the Messenger of God from a certain incursion, I started driving my camel fast, as it was a lazy one. A rider came behind me... Behold the rider was the Prophet himself. He said, 'Why are you in such haste?' I replied, 'I am newly married.' He asked, 'Did you marry a virgin or matron [a previously married woman]?' I answered, 'She is a matron.' He said, 'Then, [seek to beget] children! Children, O Jabir.' "(13)

It seems that in oriental societies it is a tradition and a part of their history to despise and suspect celibates! Anyone who does not marry exposes himself to all sorts of accusations. Ibrahim Ibn Masarra narrated, "Tawus said to me, 'Get married or else I will say to you what `Umar said to Abu al-Zawa´id: "The only thing that keeps you from marrying is impotence or lasciviousness." ' "(14)

CHAPTER EIGHT

The Importance of Marriage from the Viewpoint of the Jurists

The jurists say: "The only worship that has been instituted since the time of Adam till now, which will continue in paradise, is wedlock and faith."(1) Ibn Humam says about the relationship of wedlock to worship, "It is the closest thing to worship; so that occupying oneself with it is better than abandoning it for mere worship."(2)The importance and high position that the jurists place on wedlock (nikah) lie in its being "A cause for the existence of Islam and the Muslim." It is, therefore, preferred to worship and fighting (Jihad). It is the cause of the existence of the Muslim and Islam, while Jihad only furthers Islam.(3) In Radd al-muhtar, the author says, "It has been preferred to Jihad. Both of them are the cause of the existence of the Muslim and Islam, because the result of the marriage of one single Muslim is much more than the result of fighting. In Jihad you only kill and subdue non-Muslims."(4)

Moreover, there are "other interests regarding wedlock, such as keeping women and oneself from fornication. Wedlock is the only means of obtaining pleasure."(5) There are others, as well, who claim that wedlock is a religious obligation just like fasting, praying, and the other requirements of faith; so that any who abandon it, being capable of paying the marriage portion, supporting a wife, and having intercourse, is considered guilty of sin. Shafi`i, however, thinks it is merely permissible, just like selling or bargaining. They infer that it is a religious duty or obligation from the fact that one is enjoined to abstain from fornication. They say, "Since abstaining from fornication is a religious imperative, and since this can only be attained by wedlock, then that which is the only means to attain to a religious imperative, is also an imperative."(6) The jurists, however, think that nikah cannot possibly mean lust; if it were so, they argue, the Prophet, who married more than one wife, should have sufficed himself with one wife.(7) Yet, it seems that there is no real agreement among the jurists that nikah is a religious obligation or duty. Those who disagree on the issue of having to marry as an incumbent religious obligation quote Sura Al Imran 3:39, "The angels called him [Zachariah] while he was standing praying at the shrine: 'God gives news of John, who will confirm word from God, masterful yet circumspect [hasur, i.e. celibate], and a prophet [chosen] from among honourable people.' " "This Qur´anic statement points out the celibacy of John as a merit worthy of praise. Hasur means someone who does not have sexual relations with women in spite of being able to do so. If nikah was a religious obligation, then John wouldn't have been praised on the account of abandoning it; since abandoning an obligation is worthy of blame rather than praise."(8) Al-Sarakhsi rejects this view and argues that "nikah is the tradition of Muhammad, while celibacy was the tradition of John. A Muslim has to follow the tradition of Muhammad."(9) The consensus of jurists agree that the increase of the nation is for the public good, since Muhammad will boast over the rest of the nations on the Day of Resurrection because of the large number of his nation."(10)

CHAPTER NINE

Marriage from the Viewpoint of the Sufis

The Sufis have contradictory attitudes toward marriage which keep us from drawing general conclusions. Yet the mystical (Sufi) Islam, contrary to the rigid orthodox Islam with its theoretical content, was able to shape different and wide-ranging sectors of the Islamic societies with its own mould. It was able to do so through its diversified nature that blended with the social background of the country. It is worth noting, therefore, the positive and the negative opinions of the Sufis on marriage.
Those who elevate the value of marriage to the level of absolute duty base their position on the Hadith and the evident Qur´anic fact that God never mentioned an unmarried prophet in His Book. They said, "John married but did not have sexual relations. He did that to receive the high status [of a married man] and to carry out the tradition. It was also said [that he did so] in order to keep himself from looking [lustfully]. As regarding Jesus, he will get married when he comes back to earth and will have children."(1) In a hadith mentioned by Ghazzali, Muhammad says, "If you receive a man whose religion and trust you approve of, marry him off. If you do not do so, a temptation there will be in the land and a great corruption."(2) According to a weak hadith, Muhammad said, "He who marries for God, and marries someone off for Him, is worthy of God's patronage."(3) In a tradition by Ibn Abbas, Muhammad says, "The piety of the pious one shall not be made complete until he marries." Al-Ghazzali comments on it, saying, "Maybe he made a part of piety, but the more evident explanation is that he meant that one should not yield one's heart to overwhelming lust except through marrying. Piety shall not be made complete except by the emptiness of heart."(4) He ascribes to Ibn Mas'ud the following statement: "If I had only ten days left of my life, I would like to marry so that I should not meet God single." Mu`ads Ibn Jabal narrated that "two wives of his died by the great plague, and he too was afflicted with it. He said, 'Marry me off; I hate to meet God single.' "(5)
It was related that a servant [of God] among the ancient nations excelled his contemporaries in worship. His good worship was thus described to the prophet of his time: "What a good man he is! It is only that he leaves out a part of the tradition." The servant was distressed when he heard it, and asked the prophet about it. The prophet said, "It is marriage that you left out." The servant was distressed again and said, "I do not forbid it, but I am poor and am dependant on people." He replied, "I will marry you to my daughter." So the prophet married him off to his daughter.(6) Bishr Ibn al-Harth said, "Ahmad Ibn Hanbal has been preferred to me for three reasons: He seeks that which is lawful for himself and for others, whereas I seek the same for myself only; that is due to his numerous marriages, and my few marriages. And because he has been appointed an imam to the public."(7) It is said that Ahmad married the second day after his wife, the mother of his son `Abdullah, died, and said, "I hate to stay single for one night." Bishr Ibn Yaminiya said, "`Ali was the most devout among the Companions of the Messenger of God, yet he had four wives and seventeen concubines. Wedlock is a standing tradition and one of the qualities of prophets." It has also been said, "The superiority of the married one to the single one is the same as that of the one who goes out to war (Jihad) to him who stays behind."(8)
It is not surprising, however, to find opinions in the Sufi literature that are antagonistic to marriage, since withdrawal and abstinence from the world are of the most important pillars of the Sufi ethics. It has been pointed out in the previous chapter how some jurists proved that wedlock is not an obligatory duty by means of the Qur´anic verse that speaks of John as being celibate and one of the "honourable" (Sura Al Imran 3:39), yet those who support marriage argued that he married but did not consummate the marriage. As to Christ, there is an ample number of traditions that speak of his marriage after his second coming. Such tales and justifications try to establish marriage as an institution in Islam, on the one side, and to justify Muhammad's harem, on the other side. The Qur´an is not sufficient to prove God's aversion to marriage, and since there is no sound tradition that suggests that, the ascetic quotes, above all, the weak tradition that says, "As to the words that were given as warning against marriage, Muhammad said, 'The best man after the two hundred is the light, sandal-shod man who has neither family nor children.' He also said, 'There will come a time upon people when the perdition of man will be by the hands of his own wife, parents, and children; they will taunt him for his poverty and demand of him that which he cannot bear. So he will enter upon things that destroy his religion and make him perish.' "
One tradition says, "The lack of children is a cause of abundance, and the abundance of children is a cause of poverty." Abu Sulayman al-Darani was once asked concerning wedlock, he said, "Enduring without them is better than enduring them, and enduring them is better than enduring the Fire."(9) He said also, "The one who is alone enjoys the sweetness of work and the emptiness of heart that the married one cannot enjoy." He said once, "I saw none of our companions who married and remained in his first status." He said also, "If anyone seeks these three things, he is relying on this world: Livelihood, marrying a woman, or the books of Tradition."(10) Al-Hasan said, "If God wishes good for one of His servants, He occupies him with neither family nor possessions." Ibn Abi al-Hawwari said, "A certain group of people debated concerning this hadith, and they settled on the supposition that it does not exclude them, but means that he could have them, provided that they do not occupy him." This is a reference to the statement of Abu Sulayman al-Darani: "Whatever family, possessions, or children that divert you from God, will be inauspicious for you." All in all, no one has been quoted as forbidding wedlock (nikah) categorically, except when there is a condition. As to commending wedlock, it has also been quoted as being commended under a condition.(11)

CHAPTER TEN

The Characteristics of an Ideal Wife

Considering the importance of marriage, it was natural for jurists to describe the favourite characteristics of the wife carefully, so that the ideal goals of marriage, as they view them, should be achieved. These desirable characteristics that a wife should possess could be summed up as follows:
1. The woman should be less in age than the man, so that she should not age quickly and be unable to conceive. She should be less in esteem, power, honour, and money since men are to support women (Sura al-Nisa´ 4:34) and protect them. We read in narrated traditions of Muhammad that he said, "A woman is married for four things, i.e. her wealth, her family status, her beauty, and her religion. So you should marry the religious woman [otherwise] you will be a loser."(1) "Do not marry women off for their comeliness; their comeliness may lead them to perdition. Do not marry them off for their possessions; their possessions may lead them to domineer. Marry them for their religion. A black, believing slave is better than a beautiful free women who does not believe."(2) The woman should not be tall or gaunt, short or ugly, or have bad manners. She should not be old or have a child from a previous marriage. She should not be a slave if the man can marry a free woman.(3) Al-Jaziri, however, keeps silent on the issue of the good characteristics a man should possess in order for him to be an ideal husband for his wife!
A younger wife is the tradition (sunna) of Muhammad. "The Messenger of God married me when I was seven years old" `A´isha said, (Sulaiman says six), "and consummated the marriage with me when I was nine years old."(4) Muhammad died when she was eighteen years old.(5) Muhammad's marriage with `A´isha has always been a problem for the jurists, for they do not unanimously agree on the marriageable age of the girl:

Concerning the issue of consummating the marriage with [a girl under age], it was said that she should not be slept with before she attains puberty, but it was said in al-Bahr al-ra´iq that she can be slept with at the age of nine. The majority of Imams are of the opinion that the issue of age plays no role in this respect, and that the criterion is that the woman should be physically fit and big enough to accommodate men, and consequently there would be no fear that she would get sick if she is copulated with, even if she has not reached the age of nine. But if she is thin or gaunt and cannot bear sex, and is in danger of getting sick, her husband is not allowed to sleep with her, even if she is of age- this is the sound opinion."(6)

In a book entitled al-Furu` we read the following, "The best state for a woman is between the age of fourteen and twenty. Her maturity is made perfect at thirty, and she stops at forty, and declines after that."(7)
2. Besides youth, she should preferably be a virgin. Muhammad said, "Seek virgins; they are sweeter of mouth, have more productive wombs and can be contented with the least."(8) When Jabir told him he married a matron, he said to him, "Why not a virgin that you should play with her?"(9) This inequality between the virgin and the matron also manifests itself through Muhammad's own treatment of his wives. Anas Ibn Malik narrated, "If Muhammad marries a virgin he stays with her seven days. If he marries a matron he stays with her three days. This is the tradition."(10) Marrying a matron is permissible if a man is in need of doing so; for example if he has children who need to be raised up by someone who is used to raising up children, or if he is old to a degree that puts a young virgin off and thus intimacy between them will not endure.(11)
3. The jurists not only touched upon the qualities an ideal wife should possess, but went so far as to list the offensive characteristics and faults she should not have. Man's defects that forbid or abolish his marriage are basically these three: madness, castration, and incontinence. Yet woman's defects are enumerated and accounted for in detail. The main defections of woman are seven: madness, elephantiasis, leprosy, cornu, breathing difficulties, and lameness.
Madness is the corruption of mind to the extent that one's decisions becomes erratic owing to passing incapacity and not due to fainting bouts, in which one's decision-making remains the same.
Elephantiasis is the disease that causes stiffening of the organs and rending of the flesh. It is not the same as losing energy, having nodes in the face or roundness of the eyes.(12)
Leprosy is white spots that appear on the surface of the body due to the domination of phlegm.
Cornu is a bony protrusion in the vagina that prevents sex. But if it does not prevent sex, marriage may not be dissolved because there is still a possibility of enjoyment, but it is also acceptable to dissolve marriage because of it in keeping with the outward meaning of the tradition.
Lameness is still debatable whether it could be included among the causes of divorce; but it is certain that it dissolves marriage in case it makes the woman an invalid.
According to some, blockage of the vagina is one of the defects that involve divorce. This may be correct if it prevents sex to start with, as it deprives [the man] of enjoyment when it is impossible to remove it, or when it is possible but [the woman] refuses to submit to medication.
There are no other defects that a woman can have apart from these seven.(13)
In another tradition, Muhammad said to Umm Salim as she was looking at a certain woman, "Smell her shoulders and take a look at her heels."(14)
4. Beauty is a quality that should not be neglected when looking for a wife. A weak tradition teaches us that looking at a beautiful woman sharpens and strengthens eyesight.(15) As mentioned previously, man marries a woman for either of three things: for her beauty, her family status,(16) or for her religion.(17)
`A´isha narrated, "The Messenger of God betrothed a woman from Kalb [tribe]. He sent me to look at her, and asked me, 'How did you see her?' I said, 'I saw no use in her.' He replied, 'I saw a mole on her cheek that caused each of your hairs to stand on end.' I said, 'There is no secret hidden from you.' "(18)
5. It is also agreeable that her bridal gift should be appropriate. Muhammad said, "The marriage that has the greatest blessing is the one that is suitable to provide for."(19)
6. Yet being "fertile" is the most important quality a woman must have. Ma`qil Ibn Yasar narrated, "A man came to the Prophet and said, 'I fell in love with a woman of great beauty and family status; but she does not conceive, shall I marry her?' He replied, 'No.' The man came to him again, and the Prophet forbade him. He came to him a third time, so the Prophet said, `Marry the amiable, fertile one; for I will vie the nations in number by you.' "(20) Al-Jaziri says, "It is better that she [the wife] be fertile; because a barren one cannot carry out the function of reproduction which is necessary for human society."(21) We conclude this chapter by quoting the first benefit of marriage that occurs in Ihya´ `ulum al-din:

Children: They are the original purpose of marriage for which it has been established, and it is for perpetuating offspring so that the world would not be empty of mankind. Lust, however, was created as a stimulating motivation, as is the case with male animals in the production of seed, and the female ones that make cultivation possible. Thus they are gently led to produce a brood through copulation. The same principle is used in scattering grain, which birds lust after, in order to trap them into the net. The eternal power [of God] was not incapable of forging people afresh without cultivation or copulation, but Wisdom required that effects should be dependant on causes, though these causes can be done without, so the power [of God] should be manifest, the wonders of His creation should be made complete, and to accomplish the foreordained purposes of [divine] will. It is a safeguard from the calamities of lust, in that none of them wished to meet God unmarried. In the achievement of offspring, there are four aspects of closeness: The first is being in agreement with the love of God by achieving offspring to preserve mankind. The second is seeking the love of the Messenger of God by increasing the cause of his boasting. The third is seeking the blessing of one's good offspring after one dies. The fourth is seeking intercession by the death of a young child, in case this child dies before his father.(22)

CHAPTER ELEVEN

The Marriage Contract in the Islamic Sharia

After studying the position of marriage and the characteristics of the ideal wife, we would like to quote from the sources of jurisprudence (fiqh) how the marriage contract is concluded, and the conditions necessary for it. Wedlock under ordinary circumstances is the tradition of Muhammad, as mentioned previously, which is established by the narrated traditions of Muhammad and his personal behaviour in this area. The Hanafites hold that wedlock can be a religious obligation, a duty, a tradition, as well as a prohibited and abominable thing. Wedlock is a religious obligation for the person who is sure to fall into fornication if he does not marry. It is a duty, as well, when someone is eagerly desirous of it to the extent that he fears falling into fornication. It is a sure tradition for those who have the desire and are moderate. Yet, wedlock is prohibited if it is sure that illegal gain will ensue from it, and it is an abominable thing when the person feels so but is not sure of it.(1)
Nikah has two elements without which it cannot be fulfilled: the first is al-´ijab (response), which is the utterance coming from the guardian or his substitute, and the second is qubul (consent), which is the utterance coming from the husband or his proxy.(2) As regards the conditions for wedlock, which are listed by some jurists among the elements of wedlock, they are usually mentioned in minute detail. We will, therefore, list them briefly.
The first condition pertains to the form. There are certain terms used to conclude wedlock. Some of them are spoken, such as "I marry you," "I wed myself to you," or "I marry you to my daughter." Some are by indirect declaration of intent (kinaya), such as "I give myself to you," or "I make myself a freewill offering to you." The second condition is called the union of session or gathering (ittihad al-majlis), which necessitates that the two parties involved in the marriage contract should be in one place, since there is no wedlock through recommendation or in writing. This latter condition can be rendered invalid in case the contract is concluded on the back of a moving animal for example, or if the contract is concluded while the two parties are walking. Then it is not binding by reason of the changeability of place. If the marriage is concluded on board a ship, however, while it is sailing, the contract is valid since a ship is considered a place.(3)
Wedlock is valid only in the presence of witnesses. The least number of witnesses required for wedlock is two people. One alone will not do. They don't have to be men; they can be one man and two women. Yet it is not valid by women only, there must be a man with them.(4)
There is a unanimous agreement on prohibiting marriage with mothers, daughters, sisters, paternal aunts, maternal aunts, and nieces. Grandmothers are included with mothers, and granddaughters, even if they be far related, are included with daughters. The analogy applies for the maternal and paternal aunts of both parents, the daughters of nephews and nieces, if they are truly related. There is a general agreement, as well, on prohibiting marriage with foster mothers and foster sisters. Those who follow the literal meaning of the text (ahl al-zahir) and most of the Kharijites advocate it, but most of Islam prohibits it, which is the right stance. There is agreement also on prohibiting mothers-in-law, step-mothers, daughters-in-law, and step-children. There is an agreement, likewise, on prohibiting marriage with two sisters, but disagreement on prohibiting marrying two sisters who are under the control of one's right hand as a marriage of enjoyment. There is a disagreement on prohibiting marriage with a woman and her aunt. All those who disagree on any point that has been a matter of controversy among the older generations of the nation in respect of wedlock- such as prohibiting or permitting a certain woman, or a certain controversial condition of wedlock- such as the witnesses, the terminology, and the guardian- do not rank with the unbelievers.(5)
In addition to what has been mentioned previously, Muhammad prohibited his companions and all the people from ever marrying his wives after him.(6) The Qur´an says, "It is not for you to hurt God's Messenger, neither to marry his wives after him, ever; surely that would be, in God's sight, a monstrous thing" (Sura al-Ahzab 33:53).
All opinions and interpretative judgments regarding whether the guardian should obtain the permission of the bride concerning marriage are irreconcilable, and what they call isti´dsan [asking permission] is in fact a mere formality since her silence, if she is a virgin, is her permission. So her crying can be considered as silence, which is a sign of agreement, since crying indicates extreme shyness!(7) Nevertheless, if a father marries his daughter to a suitable husband wedlock is established, even if the daughter dislikes the man, and regardless of her age, because a father can marry off his young and crazy children and virgin daughters without their permission.(8) A guardian, as well, can marry off a virgin or a crazy girl without her permission. A grandfather can do the same. The contract is rendered invalid only owing to impotence and castration.(9) Competence (or compatibility) is one of the important conditions for marriage. Competence is defined as equality of the man with the woman, which has six aspects in the view-point of the Hanafites: family status, Islam, profession, freedom, religion, and possessions.(10) Competence has to do with man, not the woman, since Muhammad married women of different family status and denominations, yet none of them were compatible with him.(11) A man who has a free Muslim father is not the same as a man whose father and grandfather are free Muslims. A woman can be divorced if she marries a man who is not her equal, even if her guardian receives a bridal gift that indicates his assent.(12)
When performing the marriage contract, the bridegroom must pay a bridal gift or a marriage portion in the presence of the bride's guardian. It is preferable to fix the bridal gift (mahr) during the contract, yet this is not a necessary condition for the validity of the contract. As soon as the bridal gift is agreed upon, the bridegroom has to pay mahr al-mithl, which is a sum of money that suits the living circumstances and differs according to the bride's family status and descent. It also differs according to her mental state, age, and beauty. If the man wants to dissolve the contract, he has to pay back half of the bridal gift.(13)

CHAPTER TWELVE

Polygamy

The Qur´an says, "If you fear that you will not act justly towards the orphans, marry such women as seem good to you, two, three, four [at a time]; but if you fear you will not be equitable, then [marry] only one or what your right hands own, so it is likelier you will not be partial" (Sura al-Nisa´ 4:3). Polygamy was a widespread phenomenon in pre-Islamic times, just as it was with the Semitic peoples of the time.(1) Muhammad restricted the number of wives to four. The concubines will be treated in a separate chapter. The old interpreters understood the permission in this verse as the largest number imaginable in a legal marriage: "Do not marry off but from one to four, and add no more. If you are afraid you will not deal fairly, if you marry more than one, then marry one only or those your hand controls so that you will not act unjustly."(2) Polygamy is one of those Qur´anic judgments that could not affirm their existence among the Islamic nations, for most Muslims are married to one wife. It is not only that economical obstacles hinder men from doing that, but, we should not forget, it is due to the social problems this practice creates. Marrying another wife is a disgrace to the family of the first one. Moreover, moderate Muslims attempted to interpret this verse in such a way that suited the requirements of the time. Qasim Amin, for example, held that a Muslim could infer from Sura al-Nisa´ 4:3 that polygamy is forbidden, since justice to all wives, which the Qur´an stated as a stipulation for this sanction, is impossible.(3) Yet, a scrupulous Muslim, who feels called to defend and justify all that was written in his honourable book, quotes from the "old" and the "new" to prove the divine wisdom underlying polygamy. Al-Sabuni says, "Polygamy is an age-old institution, but it was an unorganised chaos before Islam. It was liable to fancy and enjoyment, but Islam made it a means of excellent life. The fact that everybody should know is that polygamy is one of the things that Islam boasts about, since it was able to solve a difficult problem that is considered one of the most complicated ones that nations and societies today suffer from. There is no solution to this problem except by going back to the judgment of Islam and adopting its system."(4) The reasons and justifications that Muslim writers give suggest that polygamy has been enjoined only to honour and favour women. "What shall we do when the balance is upset and the number of women becomes many times more than men? Shall we deprive women of the blessing of marriage and motherhood; and thus let her walk the way of whoredom and vice, as it happened in Europe owing to the increase in number among women after the last world war? Or shall we solve this problem by noble ways that preserve the woman's honour, the family's purity and the wholeness of society? Which is more honourable and more ethical, that woman should be bound with a holy bond in which she joins another woman under the shelter of a man in a legal, noble manner, or that we let her become a mistress or a girlfriend of that man, the relationship between them then being sinful and evil?"(5)
Sayyid Qutb adds the following in his commentary:

In case the wife is barren and the husband still has his natural desire, there are only two ways he can go:

1. Either to divorce her in order to replace her with another one able to meet man's natural desire to have children.
2. Or to marry another one and still keep his relationship with the first wife. Some impertinent men and women may undiscerningly prefer the first option. Yet, 99 wives (at least) will heap curses on that person who advises the husband to do that, and thus destroy their homes for no apparent reason. One rarely finds a barren women having any more desire to remarry, but you find often that the barren wife is more secure and relaxed with the little children that the other wife conceives for her husband. They fill the house with activity and joy for her, no matter how miserable she is in her own deprivation.(6)

When reading this sort of defence of polygamy, which sounds ridiculous, it isn't easy to think a great scholar such as Sayyid Qutb did not know about adoption, or did not ask himself what could be done if the man himself is impotent! What is the place of the intimate love relationship between husband and wife? Modern scholars and thinkers do not stop in their defence of polygamy at the "text" and the "reality" only, but they are keen on backing up their viewpoint by the European ideas they hear or read. Al-Sabuni tells us for example: "Christian Germany, whose religion forbids polygamy, has chosen and she found no better choice than that which Islam had already chosen. So Germany permitted polygamy so as to protect the woman from taking prostitution as a profession; which results in onerous damages, the leading one of which is the large number of bastards."(7) It is, of course, unnecessary to add that the Germans have not heard of such a decision. Thus, it appears that Islamic apologists are allowed to circulate lies to further their own cause.
He also quotes (without giving any reference) what a "German female university professor" said: "The solution for the problem of the German woman lies in permitting polygamy. I prefer to be one among ten wives of a successful man than to be the only wife of an insignificant, unsuccessful man. This is not my opinion alone, but the opinion of all the women of Germany."(8)
Mr Sabuni claims that the German youth conference (held in Munich, Germany in 1948) recommended polygamy as a solution for the problem of the increase of women and the lack of men after the Second World War.(9) Aqqad also, quoting one time from the philosophers, and another from the western writers known for their racial tendency, tries to cue the reader in on the universality of polygamy. He says, "Westmark thinks that the matter of polygamy has not been resolved yet in the west as being illegal in all western laws. This issue will be tackled again and again every time the conditions of modern society become harder, in terms of family problems. He wonders in his above-mentioned book, "Will monogamy be the last and only system of the future?" He answers himself, saying, "This question has been answered by different opinions. Spencer thinks that monogamy is the last marital system, and that every change in system must lead up to this end. Dr Le Bon believes that European laws will eventually endorse polygamy. Professor Ehrenfels, however, goes to the extreme of saying that polygamy is necessary for the preservation of the 'Aryan race'. Westmark comments that polygamy gains the upper hand when matters go the way they are supposed to take."(10) The most important of these arguments, listed in the writings of Muslim writers in defence and for the justification of polygamy, can be summed up in four points:

1. They claim that the number of women in the world exceeds that of men; it passes the ratio of four to one.(11) Polygamy, then, is the best solution for this predicament.
2. They argue that the period of fertility with man extends to the age of seventy and beyond. Yet, fertility stops with women at the age of fifty or so. So polygamy is a must, since the earth should be populated through reproduction and diffusion.(12)
3. They talk about actual cases of man's desire to satisfy his natural function (sexual relations) whereas the wife is averse to it due to age or sickness. Polygamy is the sole solution to this problem.(13)

Other things that should be added to the list of special cases for which polygamy is allowed are the prolonged menstrual period of the woman, which prevents the husband from having sex with her, or the strong desire of the adult man for nikah, which cannot be quenched by a single woman, so that man is left with a need for marrying more than one wife to relieve his [agonising] soul.(14)Islam has permitted such men to realise their desire within a legal frame so that Satan should not lead them astray.(15) As to Muhammad Rashid Ridha, he does not list any special cases, but starts off with an assumption that man's nature makes it impossible for him to be satisfied with one woman.(16)
4. The problem of barrenness. On reading the books of modern Muslim scholars and writers who put forward and explain the problem of barrenness in defence of their claim that polygamy is an absolute imperative, one perceives that this is the most powerful argument they have. One should not be astonished at this, since children or the assurance of progeny is the reason for the existence of nikah (which was originally sexual intercourse, or, by way of generalisation, marriage). If we study the biography of Muhammad, we see that the Muslim is in no need of citing social problems, special cases, the decisions reached by "the Conference of Munich", or what a female German professor said to justify polygamy. Muhammad himself, about whom the Qur´an says, "you have a good example in God's messenger" (Sura al-Ahzab 33:21), was the leading example in proving that polygamy in Islam is an established tradition, and not a special revelation. The Messenger of God said, "Whatever I command, that you should adopt, and whatever I forbid you, that you should give over."(17) Sunna (or tradition) is of course the second source of the Islamic Sharia, "of which if someone is ignorant, has no guide in the thick darkness of doubt."(18) This "guide" says about himself, "Marry, for the best person of this [Muslim] nation [i.e., Muhammad] of all other Muslims, had the largest number of wives."(19)
Moderate Muslims, who noticed the faults and imperfections of the Islamic Sharia, have tried to reform the religious system and reconcile it with the requirements of the twentieth century. The first attempt of this kind was that made by the great reformer and thinker Jamal al-Din al-Afghani (1837-1897). He cautioned not to apply this verse because it is impossible to "deal fairly" if a man has more than one wife.(20)
At the turn of the century there arose a discussion among the liberal circles about polygamy, which still stirs a wave of anger and indignation. Arab writers, such as the Egyptian writer Nawal al-Sa`dawi and the Moroccan professor Fatima Marnisi, treated this subject in their writings, which were no less severe than the European social studies in the way they criticise society.
As to the legal position of polygamy in the Islamic world, it now falls under the punishment of law in Turkey and Tunis. In Egypt a law was passed in 1979 that added more restrictions on polygamy in preparation to abolishing it altogether. This law had been suggested by the late president of Egypt, Anwar al-Sadat. The Islamic fundamentalists dubbed it "the law of Jihan al-Sadat". This law stated that a woman can call for divorce once her husband marries another in case of her being pregnant, and that she has the right to keep the house, as well.(21) There are some who think that it is disobedience to God, however, to interpret the verse of polygamy in modern terms.(22)

CHAPTER THIRTEEN

Temporary Marriage of Enjoyment

Marriage of enjoyment (or pleasure) differs from the conventional marriage in that its aim is not having a regular marital life and begetting children, but to enjoy sexual relations in a "legal" way. The man who practises such a marriage is often someone who spends a long time abroad for any reason, and thus marries a woman temporarily. The period of marriage is limited to the time when the husband leaves the country, and then the marriage is automatically dissolved.
The traditions relating to marriage of enjoyment indicate that Muhammad warranted such practice for his friends especially during the raids (maghazi). Yet, `Umar Ibn al-Khattab strongly opposed it, as he said, "The Messenger of God permitted mut`a [marriage of enjoyment] three times, and after that he forbade it. By God, if I find that anyone practises mut`a, while being married, I will stone him with rocks, unless he brings me four witnesses that the Messenger of God permitted it after he had forbidden it."(1) A tradition in Bukhari claims that he prohibited it.(2) Still, it is a bone of contention between many jurists. It is narrated that `Imran said, "We practised the tamattu` [marriage of enjoyment] in the life-time of the Messenger of God, and then the Qur´an was revealed (3)[regarding tamattu`] and somebody said what he wished [regarding the same] according to his own opinion."(4)
Regardless of the disputes on the details of mut`a in the Sunni schools of thought, one can say that it is equal to fornication, yet the Shiites turned it into some sort of legal marriage. The Sunni jurisprudence, however, allows mut`a, even if it doesn't call it by name. For example, a man may agree to marry a woman in addition to his marriage contract, and bind themselves to divorce as soon as the term they fixed is finished.(5)
Since the Sunni schools of thought all agreed that mut`a was cancelled and prohibited on the basis of traditions narrated about Muhammad,(6) we would like to treat the subject within the Shiite jurisprudence. According to the Shiites, the legality of mut`a is established in both the Qur´an and the Hadith, and in the traditions about their infallible Imams. Their Qur´anic proof is: "and wedded women, save what your right hands own. So God prescribes for you. Lawful for you, beyond all that, is that you may seek, using your wealth, in wedlock and not in licence. Such wives as you enjoy thereby, give them their wages apportionate; it is no fault in you in your agreeing together, after the due apportionate. God is All-knowing, All-wise. Any one of you who has not the affluence to be able to marry believing freewomen in wedlock, let him take believing handmaids that your right hands own; God knows very well your faith; the one of you is as the other. So marry them, with their people's leave, and give them their wages honourably as women in wedlock, not as in licence or taking lovers. But when they are in wedlock, if they commit indecency, they shall be liable to half the chastisement of freewomen. That provision is for those of you who fear fornication; yet it is better for you to be patient. God is All-forgiving All-compassionate" (Sura al-Nisa´ 4:24,25).
Abu `Abdullah from Ja`far al-Sadiq (the sixth Imam of Twelver Shiism) narrated the following about nikah of enjoyment: "God had made it lawful in His Book, and by the mouth of His Prophet, so it is lawful till the day of Resurrection." One day Abu Hanifa said, "O Abu Ja`far, such as you say that, even though `Umar prohibited and forbade it?" He replied, "Even if he did so." He said, "I adjure you by God not to make lawful that which `Umar has declared prohibited." He answered, "You follow the saying of your friend [`Umar], but I follow the saying of the Messenger of God. What your friend said is untrue." Then, `Abdullah Ibn `Umar came forward and said, "Does it go well with you if your wives, daughters, sisters, and cousins do this?" But Abu Ja`far avoided him when he mentioned his wives, daughters, and cousins.(7)
`Abdurrahman narrated: I heard Abu Hanifa asking Abu `Abdullah concerning mut`a, for which he answered, "Which of the two mut`as are you asking about?" He replied, "I have already asked you concerning the mut`a of Pilgrimage, now tell about the mut`a of women in general; is it legitimate?" He answered, "Praise be God! Have you not read the Book of God Most High? It says, 'Since you have thereby sought enjoyment with them, give them their marriage portion as is stipulated.' " Abu Hanifa said, "By God! It is as though I have never read this verse before."(8)
In a tradition ultimately related by `Ali, Abu Hanifa said to Ja`far Ibn al-Nu`man, "O Abu Ja`far, what do you say concerning mut`a; is it lawful?" He replied, "Yes." He asked again, "Then what keeps you from commanding your women to practise it and earn money for you?" Abu Ja`far answered, "Not all professions are desirable, even if they were lawful. Certain folk have certain lots in life and certain social status. But what do you say, Abu Hanifa, concerning [new sweet wine]; don't you claim that it is lawful?" He answered, "Yes." Abu Ja`far asked, "What keeps you then from letting your women stay at taverns selling wine and earning money for you?" Abu Hanifa said, "Tit for tat; and your arrow penetrates even more." The Abu Ja`far said to him, "The verse in Sura al-Ma`arij [70] speaks of prohibiting mut`a, and the tradition of the Prophet also cancelled it." Abu Ja`far replied, "Abu Hanifa, Sura al-Ma`arij is a Meccan Sura, and the verse pertaining to mut`a is Medinan, and your tradition is anyway doubtful and bad." Abu Hanifa said to him, "The verse pertaining to inheritance, as well, speaks of cancelling mut`a." Abu Ja`far answered, "Wedlock has been already established without inheritance." Abu Hanifa asked, "Where do you deduce that from?" Abu Ja`far answered, "If a Muslim man marries a woman of the people of the Book, and then dies, what do you say about her?" He answered, "She does not inherit from him." He said, "See, wedlock is established without inheritance," and they departed.(9)
The Suni schools of thought consider mut`a as abolished on the grounds of Sura al-Mu´minun 23:5, which says, "Believers will succeed! ...who guard their private parts except with their spouses and whomever their right hands may control, since then they are free from blame." Nevertheless, the Shiites claim that this verse is Meccan and that it has been revealed before mut`a was allowed.(10) It seems that the Shiite interpretation is more in harmony with historical reality, since in many credible traditions (that the Sunnis hold as genuine) we have indication of the fact that Muhammad not only allowed marriage of enjoyment, but commanded his friends to practise, as well.(11) Jabir Ibn `Abdillah narrated that "mut`a will remain forever."(12) Ahmad Ibn Hanbal said in Musnad, "God has given permission for the practice of mut`a, and the Messenger of God made it a law."(13) It is evident from the stories related about Muhammad's friends that they had a hard time trying to understand this permission and adapt it to the morals prevailing at that time. Such a fact is vouched for by the above-mentioned statement of `Umar.
We gather from the Shiite traditions that those who seek the "enjoyment of women" are bound by no numerical limitation. Abu `Ubaid narrated that: He mentioned for him the mut`a [and asked] whether it was one of the four [women]. He answered, "Marry a thousand of them; they are hired."(14) The justification that the Shiites give for the marriage of enjoyment is strange. They say that it was warranted for the single man so that he could keep himself restrained (chaste). Abu al-Fath Ibn Yazid narrated: I once asked Abu al-Hasan concerning mut`a, and he answered, "It is lawfully and absolutely warranted for those who are married, as to those who are not, they should keep themselves restrained by mut`a, but if the latter do get married, they are not in need of it, yet it is still warranted for them if they are away [from home]."(15) The reference here is made to the phrase "keep themselves restrained" occurring in Sura al-Nisa´ 4:6, which is utterly irrelevant to the issue of mut`a even according to the best known and oldest Shiite interpretations.(16) It is strange also to know that not all women are fit for mut`a! There are conditions and a description that women have to meet in order to be suitable. The first of these conditions is that the woman has to be a chaste believer. Abu Ja`far was once asked concerning mut`a, and he answered, "mut`a today is not the same as it was before; they were believers then, but today they are not, so ask them."(17) Abu Sara narrated: I asked Abu `Abdillah about it [meaning mut`a], and he said to me, "It is lawful; so only marry a chaste woman, for God Most High said, '...who guard their private parts' (Sura al-Mu´minun 23:5). So do not place your private part where you do not trust your dirham!(18) Whoever wants to marry a woman according to the marriage of enjoyment has to molest her. If she responds with wantonness, then she is not chaste."(19) Muhammad Ibn Abi al-Fudhail narrated: "I asked Abu al-Hasan concerning the wanton beautiful woman; whether it is permissible for a man to enjoy her for a day or more." He said, "If she was known as a prostitute, then she should not be enjoyed or married."(20)
As regards the stipulations for mut`a marriage, they are summed up as follows: Fixed time and fixed hire. Aban Ibn Taghlib narrated: I said to Abu `Abdillah, "What should I say to the woman when I am left alone with her?" He replied, "You should say, 'I marry you for enjoyment according to the Book of God and the tradition of his Prophet, knowing that you inherit nothing and no one inherits from you, for such and such days. And if you like, for such and such years, for such and such dirhams.' You should fix the price that you agree upon, whether little or much. If she says yes, then she accepts; she is your woman and you are worthy of her." I said, "I am ashamed to mention the condition pertaining to the days." He replied, "It is more damaging for you [if you don't do so]." I asked, "How is that?" He answered, "Unless you stipulate [the days], your marriage would be binding, and you will have to pay her alimony during the days of `idda [40 days after divorce], and she would inherit from you, and you would not be able to divorce her except according to the divorce of the Sunna [or tradition]."(21)
The jurists say that it is unlawful to enjoy a Jewish or a Christian woman. Al-Hasan al-Taflis said, "I asked al-Ridha, 'Can a Jewish or a Christian woman be married for enjoyment?' He answered, 'Enjoying a free believing woman is more favourable to me, and she is more irreproachable than they are.' "(22)

CHAPTER FOURTEEN

Divorce

Divorce, in the terminology of the jurists, is "the abolition of the bond of marriage."(1) Only the man is entitled to initiate divorce. Divorce was known in the Arab Peninsula before the lifetime of Muhammad, and it meant a final and immediate dissolution of the marriage contract. The Qur´an, however, introduced new regulations that were not known to its contemporaries.(2)
The judgments regarding divorce occurring in the sources of fiqh can be summarised as follows: Only the man has the right to divorce, and he does not have to give any reasons.(3) Yet it is regarded as abominable, even forbidden by the Hanafites. The Qur´anic basis for divorce comes in the two verses: "Divorce is [pronounced] twice; then honourable retention or setting free kindly" (Sura al-Baqara 2:229), and "O Prophet, whenever you [and other Muslims] divorce women, divorce them when they have reached their period" (Sura al-Talaq 65:1). As to the Hadith, we find evidence for the permissibility of divorce in what `Abdullah Ibn `Umar narrated: that he had divorced his wife while she was menstruating during the lifetime of God's Messenger. `Umar Ibn al-Khattab asked God's Messenger about that. The Messenger of God said, "Order him [your son] to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again. Then if he wishes to keep her, he can do so; but if he wishes to divorce her he must do so before having sexual intercourse with her. This is the prescribed period [number of days] which God has fixed for the women meant to be divorced."(4)
Hanifite jurists hold that divorce can be one of the following three: excellent, good, or hateful (the one effected at once). The excellent one is when a man pronounces his wife divorced one time while she is clean, having abstained from having intercourse with her since her previous menstruation, with the intention of remarrying her. The good divorce is when a man pronounces his wife divorced three times; on the first, the second, and the third menstruation respectively, while she is clean, having not had intercourse with her. As to the hateful, or atypical divorce, it is to divorce one's wife twice or three times during her menstruation all at once.(5) A free woman should be pronounced divorced three times, and a bondwoman twice. Hateful divorce is also permissible.(6)
In order for divorce to be effective, no goodwill or proper prayer are required. It is effected by the man's saying, "You are divorced," or "I have divorced you." If a man says, "You are divorced from here till Syria," it is one revocable pronouncement of divorce. If he says, "You will be divorced in Mecca [or at Mecca]," her being divorced will be in effect in all other countries. And if he says, "You are divorced before I marry you," it will be no divorce at all. However, if he says "You are divorced if I do not divorce you," or "until I divorce you," or "when I have not divorced you" and she keeps silent, then divorce is in effect. But if he says, "You are divorced unless I do not divorce you," or "if I have not divorced you," she will not be divorced till her death.(7)The jurists are in agreement that divorce can be effected not only through explicit pronouncement, but by implication or in writing as well.(8) Accordingly, a man can say, "Start on your legal period," "Cleanse your womb," or "You are one [time]!" Jurisprudents have gone into detail in regard to this point.(9) If a man pronounces his wife divorced one time, he has the right to have her back during her legal period without her permission. It is enough for him to say, "I have returned to you," or "I retain you."(10) It seems that man's right to have his wife back had been misused during the lifetime of Muhammad: a man would divorce his wife and "return" to her before her legal period was over in order to divorce her afresh, thus forcing her to pay him back the bridal gift he had given her. This compelled Muhammad to correct this situation, so that we now read in the Qur´an: "When you divorce women, and they have reached their term, then retain them honourably or set them free honourably; do not retain them by force, to transgress; whoever does has wronged himself. Take not God's signs in mockery! .....Fear God, and know that God has knowledge of everything" (Sura al-Baqara 2:231-232), and "If he divorces her finally, she shall not be lawful to him after, until she marries another husband" (Sura al-Baqara 2:230). In confirmation of this judgment, the Hadith has it that: "Rifa`ah's wife said to the Messenger of God, "Rifa`ah divorced me finally, and `Abd al-Rahman married me after him. But what he has [namely his penis] is as [limp as] the border of the garment [this means he was impotent]." The Messenger of God asked, 'Do you perhaps want to return to Rifa`ah?' She said yes. But he said, 'No, not until you enjoy intercourse with [`Abd al-Rahman], and he with you.' "(11)
The Dutch orientalist Juynboll states that Muhammad meant to provide a settlement for women through the Qur´anic statement "until she marries some husband other than him [in between]."(12)
Jurisprudents of all schools of thought believe that a man is not obliged to state any reason if he divorces his wife.(13) Yet some modern writers and scholars claim the contrary. Al-Sabuni says, "If all means of reconciliation between the spouses fail, then divorce is inevitable. One of the necessities that make divorce permissible is suspicion on the part of the husband of his wife's behaviour. For example, if he knows that she cheated him [by committing adultery], will he let her spoil his offspring and ruin his life, or will he divorce her? There are other reasons such as impotence or any other sickness that renders it impossible to have an intercourse, any contagious disease that can be transmitted to the other partner, or any of these various similar reasons. God, high to be praised, made it imperative in His law that divorce should be effected over two separate times in between two periods of cleansing [from the menstruation], as the holy Tradition indicates. If the husband desires to retain her, he can, and if he still wishes to divorce, he then can effect the divorce finally. Only a couple that should not remain wedded, for the good of the family and their own good, will be divorced after all this consideration and long-suffering."(14) Often Muslim writers boast about the Islamic law permitting divorce and the judgments of divorce. They claim that Christianity, and its man-made laws that prohibit divorce except on the basis of adultery, place conditions on it that rendered it next to impossible, which contradicts human nature.(15)
We conclude this chapter with the assertion of al-Aqqad: "The law of the holy Qur´an includes both the divine and the secular aspects of life. All the religious sanctity it includes falls under the fact that marriage was supposed to be stripped of its social and sexual benefit, so that worship of God should prevail against the wills of the spouses."