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Muslim Personal Law
Dr. Zubair Abbasi
22nd November 2015
Research Essay – First Draft
Gender Equality in Islam:
Reconcilin...
Abstract
The rise of globalization and secular thought in modern times have reopened many
debates challenging the relevanc...
chastity, and for men and women who engage much in Allah's praise, for them has Allah
prepared forgiveness and great rewar...
Islam. The purpose of Gender equality as it is commonly conceived in the popular
imagination, also under the Universal dec...
not absolute or infallible and can be subject to change with the emergence of new
interpretations in modern times.
2 Type ...
treatment against females in marriage arises out of the nature of the relationship between
a husband and a wife rather tha...
a requirement9. The validity of this claim can be exemplified in the case Raja Muhammad
Azram vs Jamila Banaras, 2011 YLR ...
Ghamidi argues that since the Qur’an does not place any restrictions or strict impositions
regarding polygamy in general l...
choose. This criticism is not entirely unqualified and is in fact supported by centuries of
tradition and custom which pro...
adversely affected their inheritance shares severely in many tribal societies, in places like
Nigeria and rural Pakistan. ...
law does not in any way prevent a father from giving away more of his wealth to his
daughter(s) by making a will (one-thir...
a law which is only limited to matters of finances or contract making. The reason behind
such a differentiation is simply ...
society and the challenges it brings with it. It is also conceived that while, there is a dire
necessity of bringing the c...
Bibliography
Hallaq, WB, Sharī‘a: Theory, Practice, Transformations (CUP 2009) ‘Engineering family
law’ 459-73.
Rahman, F,...
Emon, Anver. "The Paradox of Equality and the Politics of Difference: Gender Equality,
Islamic Law, and the Modern Muslim ...
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Gender Equality in Islam - Reconciling traditional Islamic laws with the growing challenges of modernity on gender discriminatory laws.

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Gender Equality in Islam - Reconciling traditional Islamic laws with the growing challenges of modernity on gender discriminatory laws.

  1. 1. Muslim Personal Law Dr. Zubair Abbasi 22nd November 2015 Research Essay – First Draft Gender Equality in Islam: Reconciling traditional Islamic laws with the growing challenges of modernity on gender discriminatory laws. Syed Ahmad Omer Akif Meha Pumbay
  2. 2. Abstract The rise of globalization and secular thought in modern times have reopened many debates challenging the relevance of religious law and its compatibility with universal notions of morality and equality. The present essay explores the issue of gender equality and discrimination in Islamic legal tradition by comparing perspectives of various scholars, court judgments, historical developments and cultural practices. The main argument of this essay is that in its 1400 year history Islamic legal system has undergone an evolutionary process giving rise to numerous new interpretations, however, an important distinction has to be made between the law of primary sources (Quran and Sunnah), the opinion of jurists & scholars and customary law. While the validity of law derived from the Qur’an and Sunnah remains eternal and infallible, other sources can lead to arbitrary decisions and incorrect application of Islamic law. Such an exercise can result in the justification of gender discriminatory laws that are in contravention to the fundamentals of the religion itself. 1 Introduction One of the most fundamental tenets of the Muslim creed is that God has created all human beings equal to each other, and they can be only superior to one another in terms of their piety and actions. This idea of parity between the genders is laid down by the Holy Qur’an itself in the following verse: "For Muslim men and women, for believing men and women, for devout men and women, for true men and women, for men and women who are patient and constant, for men and women who humble themselves, for men and women who give in charity, for men and women who fast, for men and women who guard their
  3. 3. chastity, and for men and women who engage much in Allah's praise, for them has Allah prepared forgiveness and great reward." [33:35]. This present essay will attempt to study Islamic legal discourse on gender-based issues by first understanding the Islamic position on gender equality then applying this standard in the context of multiple domains of marriage including polygamy, divorce, inheritance and testimony before finally attempting to reach a clear verdict on the matter. Adding to the earlier Qur’anic verse, there is a strong contention by adherents and scholars alike that values and principles of Islam are inherently gender neutral. However, it is an admitted fact that due to historically changing contexts, social structures, societal norms and cultural conventions certain facets of the law have treated genders unequally and discriminatorily. This apparent contradiction and lack of consistency between scripture and practice no doubt exists to some extent in the present day. However, these double standards that do exist in the present day Islamic Law do not mean that Islam preaches that women are subordinates to men. In Islamic Law, justice for all is the principle, gender equality is not. This essay aims to prove that the original sources of law need to be interpreted in light of the context that they were revealed in and the societal corrections that they intended to make. Many scholars of Islam like Javed Ahmad Ghamdi, Dr. Jamal Badawi, Dr. Fazlur Rahman and Wael Hallaq are of this belief. In order to facilitate a fair critique of the alleged gender discriminatory laws and rights in classical and modern Islamic legal tradition, it is absolutely necessary to understand albeit briefly what is meant by gender equality, in general, layman terms. This has to be juxtaposed with the Islamic notion of gender egalitarianism and its divergence from the commonly understood definition for an accurate analysis of gender rights in
  4. 4. Islam. The purpose of Gender equality as it is commonly conceived in the popular imagination, also under the Universal declaration of human rights, is to create equality among genders in law and in social situations1. Under such a conception, equality is implied as absolute in all matters which is problematic primarily for a reason which is termed as the paradox of equality by Professor Anwer Emon. The Paradox of equality basically states that in pursuance of equality, people who are similarly situated have to be dealt similarly2. Conversely, people who are differently situated have to be treated differently. The main argument that stems out of this proposition is that often courts and judges are required to legally differentiate between genders in order to uphold principles of justice and fairness. To this end, gender differentiation and gender discrimination are viewed separately where the former finds credence in scripture and tradition while the latter notion is thoroughly invalidated due to a lack of precedence and of its blatant contravention to the essence of the traditional Islamic law. Any analysis or criticism of Islamic legal thought pertaining to gender issues would be fruitless and intellectually dishonest if made outside the context of differentiated equality as mentioned above. In identifying the ‘Islamic’ perspective of almost anything, eminent Islamic scholar, Professor Jamal Badawi emphasizes greatly on the importance of making a distinction between primary sources (Qur’an and Sunnah) and the legal opinion of scholars, jurists, judges whose views may vary considerably with changing circumstances and customs3. The point to be noted is that the second type of sources is 1 "OSAGI Gender Mainstreaming - Concepts and Definitions." UN News Center. Accessed November 22, 2015. http://www.un.org/womenwatch/osagi/conceptsandefinitions.htm. 2 Emon, Anver. "The Paradox of Equality and the Politics of Difference: Gender Equality, Islamic Law, and the Modern Muslim State." Social Sciences Research Network, 2011. Accessed November 22, 2015. 3 Badawi, Jamal. "Gender Equity in Islam." Accessed November 22, 2015. http://www.sultan.org/books/gender_equity_in_islam.pdf.
  5. 5. not absolute or infallible and can be subject to change with the emergence of new interpretations in modern times. 2 Type of legal domains contended under gender equality debate Many questions and criticism about the claim of gender-based equity in Islam come to the forefront in numerous legal disputes. These disputes are usually related to matters of marriage, divorce, inheritance, testimony along with fundamental human rights issues among others. Marriage In an article, (pg 456) Dr. Fazlur Rahman writes that the Quran intended for husband and wife to be equals in marriage4. This idea springs from the very outset when the marriage is being conceived. Contrary to the misguided patriarchal notion that in Islam, marriages are usually arranged by the family and the bride has limited or no say regarding the matter. This view was categorically negated in Allah Nawaz vs Station House Officer where a marriage consented by a 16-year-old girl was declared valid by the court in spite of her guardian’s opposition to it5. The mere fact that the girl had entered into marriage on her own accord warranted the court to decide in her favor. This case, in particular, shows that Islamic law has high regard for the rights of minor girls and their autonomy in marrying whoever they wish. Furthermore, Dr. Rahman and Eminent Muslim scholar Javed Ghamidi argue that some of the apparently discriminatory 4 Rahman, F, 'A Survey of Modernization of Muslim Family Law' (1980) 11 International Journal of Middle East Studies 451. 5 Allah Nawaz vs Station House Officer, Mahmood Kot District, Muzaffargarh, P L D 2013 Lahore 243
  6. 6. treatment against females in marriage arises out of the nature of the relationship between a husband and a wife rather than their respective gender6. They state that the Qur’an assigns higher authority to the husband as the head of the institution of a family whose primary role is being the provider of the family7. Juxtapose this with the idea that upholds the family and marriage as sacred contracts which need represent the values of an Islamic society at the lowest level. This proposition unfortunately, has led to many Islamic nations, like Tunisia and Indonesia, to advance an interpretation that demands complete obedience from wives to the husbands and thus being their subordinates in all domestic matters. The Quran, whose message is presented as eternal, greatly comments on the realities of the time that it was revealed in, where men earned and women did not. The actual Islamic principle can be argued as higher respect for the main earner of the family. According to this reasoning, in cases where the man and woman earn approximately equal amounts, they can both be considered to be equal in respect and owe equal obedience to each other. Polygamy Dr. Fazlur Rahman also posits that the Islamic States have repeatedly tried to limit the practice of Polygamy by imposing restrictions and discouraging it8. Many countries like Egypt and Pakistan, have regulated multiple marriages by making the consent of first wife 6 Rahman, F, 'A Survey of Modernization of Muslim Family Law' (1980) 11 International Journal of Middle East Studies 451. 7 "Islam and Women: Misconceptions and Misperceptions." Javed Ahmad Ghamdi. February 1, 2005. Accessed November 22, 2015. http://www.javedahmadghamidi.com/renaissance/view/islam-and- women-misconceptions-and-misperceptions-part-1-4. 8 Rahman, F, 'A Survey of Modernization of Muslim Family Law' (1980) 11 International Journal of Middle East Studies 451.
  7. 7. a requirement9. The validity of this claim can be exemplified in the case Raja Muhammad Azram vs Jamila Banaras, 2011 YLR 1595, where the court held a man liable for contracting a second marriage without informing or obtaining the consent of his existing wife10. The judgment was marked by a support for the wellbeing and rights of the wife, practically acting as a hindrance to polygamous marriages. The same sentiment is reflected in section 6 of the Muslim Family Law Ordinance 1961 which discourages polygamy in strong words where it makes it a requirement to act in accordance with the will of the wife and the arbitration council before a second marriage can be contracted successfully11. According to Muslim scholar Javed Ahmad Ghamidi, Shariah law does not actively allow, encourage, or prohibit polygamy but it merely advances an existent trend prevalent in the Arab society at the time12. He argues that the much-quoted ayah of the Qur’an, “And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice; (4:3)” was revealed in the historical context of a growing number of unsheltered orphans and widows in the aftermath of the Battle of Uhad. In order to help these people in the crisis, Muslim men were encouraged to take these women into their protection lawfully by marrying them. Furthermore, 9 Mashhour, Amira. "Islamic Law And Gender Equality: Could There Be A Common Ground?: A Study Of Divorce And Polygamy In Sharia Law And Contemporary Legislation In Tunisia And Egypt." Human Rights Quarterly: 562-96. 10 Raja Muhammad Azram vs Jamila Banaras, 2011 YLR 1595 11 "The Punjab Commission On The Status Of Women." Muslim Family Laws Ordinance, 1961, Ordinance VIII. Accessed November 22, 2015. http://pcsw.punjab.gov.pk/muslim_family_laws. 12 "Islam and Women: Misconceptions and Misperceptions." Javed Ahmad Ghamdi. February 1, 2005. Accessed November 22, 2015. http://www.javedahmadghamidi.com/renaissance/view/islam-and- women-misconceptions-and-misperceptions-part-1-4.
  8. 8. Ghamidi argues that since the Qur’an does not place any restrictions or strict impositions regarding polygamy in general like it does on many other issues such as the consumption of alcohol, adultery etc: then it (polygamy) may be regulated or even banned by legislators when societal values can no longer accommodate such a practice. It can also be argued that Islam emphatically discourages polygamy on the pretext of justice, “And you will never be able to be equal [in feeling] between wives, even if you should strive [to do so].” (4:129). In these verses, first, the Quran allows men to marry up to four women on the condition that he can treat them equally, and the Quran further adds that it is impossible to treat women equally. As identified by Dr. Rahman, the two main ways in which Muslim countries restrict polygamy is by maintaining that a husband must be economically strong enough to support multiple wives and that he must obtain the consent of the first wife to undergo a subsequent marriage13. Dr. Rahman finds both these reasons quite unethical as the first makes polygamy legal for the rich and illegal for the poor, reducing marriage to a status similar to legalized prostitution. The second puts a lot of mental and emotional pressure on the existing wife as it cannot be easy for her to agree to share her husband with another woman. Divorce Questions of gender disparity are not limited to obligations and rights during the marriage but also applicable to the annulment of marriage or divorce. The most ardent critics of Islamic legal system specifically point towards the unfair practice of the unilateral right granted to husbands to divorce their wives whenever and however they 13 Rahman, F, 'A Survey of Modernization of Muslim Family Law' (1980) 11 International Journal of Middle East Studies 451.
  9. 9. choose. This criticism is not entirely unqualified and is in fact supported by centuries of tradition and custom which provides the right to initiate divorce exclusively to males. This right is usually construed to be unqualified and unrestricted. That being said, this contention is not entirely legitimate. While it is true that the right to divorce rests with the husband by default, the wife has the option to ask for khula or judicial separation which compensates her to some extent. Secondly, the claim that husband may divorce his wife on completely arbitrary grounds does not stand as an unfettered right either. This is demonstrated by the judgment in Mariyam Akhter & anr vs Petitioners Wazir Mohd which laid down framework including the correct procedure and reasonableness of causes that may justify the exercise of a unilateral divorce14. By relying on Qur’anic dictates, the court argued that a husband cannot capriciously divorce his wife and that he needs to make all possible attempts at reconciliation before executing a divorce for only a reasonable cause. Inheritance In pre-Islamic Arab society, women were not given any property or inheritance as they were themselves treated as transferable property. After the emergence of Islam in Arabia, not less than revolutionary reforms were enacted to uplift the social and financial conditions of women as compared to earlier times. However, even today in many parts of the Muslim world, the outlook for women isn’t a lot better than it was during the pre- Islam Arabian society. The perception that women are inherently inferior to men has 14 Mariyam Akhter & anr vs Petitioners Wazir Mohd (2005) HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Rev No. 51 OF 2005 AND Cr M P No. 15 OF 2005
  10. 10. adversely affected their inheritance shares severely in many tribal societies, in places like Nigeria and rural Pakistan. Professor Jaiyeola Mulikat Bolaji comparatively studied these societies in Nigeria where customary laws greatly undermined the traditional Islamic inheritance law15. Under customary law of inheritance of many ethnic groups in Nigeria, a widow does not have the right to inherit estates of her late husband and even the shares of daughters as compared those given to sons are quite insignificant. In Pakistan, the deep-rooted patriarchal system denies women their due right of inheritance, consequently curbing their socio-economic and political empowerment16. Owing to customary practices and compulsions, many women are either forced to withdraw their right to inheritance in favor of male counterparts. In order to resolve such a dilemma, as suggested by Professor Badawi, distinct cultural practices have to be viewed independently of the dictates of Qur’an, Sunnah and the opinion of jurists and scholars17. A simple refutation of the highly discriminatory inheritance laws and practices in places such as Nigeria and Pakistan, can eloquently be found in this verse of the Holy Qur’an, “For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much - an obligatory share. (4:7)”. In furtherance to this, there is another popular misconception that female children can only get half of what male children get from their parent’s estate. This divine 15 Bolaji, Jaiyeola. "A Comparative Study of Women's Rights of Inheritance in Nigeria Under Islamic Law and Some Customary Laws." Graduate Theses, University of Ilorin, Nigeria, 2011. 16 Wattoo, Ayesha. "Inheritance Rights of Women." Pakistan Today. November 11, 2014. Accessed November 22, 2015. http://www.pakistantoday.com.pk/2014/11/11/comment/inheritance-rights-of- women/. 17 Badawi, Jamal. "Gender Equity in Islam." Accessed November 22, 2015. http://www.sultan.org/books/gender_equity_in_islam.pdf.
  11. 11. law does not in any way prevent a father from giving away more of his wealth to his daughter(s) by making a will (one-third of property) or gifting it. For Hallaq (page 468), the Islamic laws on inheritance are based on the tribal society, where extended families live together, communally sharing their belongings18. This is why the orphan grandchildren are given no share in the inheritance of their grandfather because the Law assumes that the children’s relatives will provide for them. Similar is the case with women. It is assumed that the father, husband, brother or uncles will provide for the entire family (based on the societal norms of pre-Islamic and early Islamic times), therefore, the shares given to women were half of those given to their male counterparts. Another reason of unequal shares in inheritance for men and women, given by Dr. Muhammad Sharif Chaudhry and Fazlur Rahman, is that women receive maintenance and dower from the husband19. Islamic law makes maintenance and dower a compulsion on the husband and this compensates for the unequal inheritance that wives receives20. Thus, the law intends that higher inheritance should equip men to be able to maintain their wives in the prescribed fashion, in a society that it assumes is financially headed by men. Testimony In matters of testimony, it is commonly believed that a woman witness counts only as half of her male counterpart. This is a gross generalization which attempts to protract 18 Hallaq, WB, Sharī‘a: Theory, Practice, Transformations (CUP 2009) ‘Engineering family law’ 459-73. 19 Rahman, F, 'A Survey of Modernization of Muslim Family Law' (1980) 11 International Journal of Middle East Studies 451. 20 Chaudhry, Mohammad. "Women's Rights in Islam by Dr. Muhammad Sharif Chaudhry (Chapter 9)." Books on Islam. October 11, 2003. Accessed November 22, 2015. http://www.shaufi.com/b2/b2_09.htm.
  12. 12. a law which is only limited to matters of finances or contract making. The reason behind such a differentiation is simply the unfamiliarity about such matters of women, especially during the early days of Islam. The stipulation aims to empower and protect women from manipulation and discrimination. Javed Ghamidi argues that Shariah law does not in any way bind Muslims to adopt a particular method to establish proof in criminal or civil matters21. This signifies that universally acceptable methods of legal ethics made by reason and logic can be used without reservation and it is up to the discretion of the judge to accept certain forms of evidence or not. In this regard, there can be absolutely no discrimination between the testimony of men and women. If a woman testifies in a clear and definite manner, her testimony cannot be rejected simply on the pretext that there lack another woman witness and a man to testify alongside her. Likewise, if a male witness presents an ambiguous and vague statement, it cannot be accepted merely on the grounds that he is a man. If a court is satisfied by the statements of witnesses, it has all the authority to declare a case as proven regardless of the gender. Conversely, if a court is not impressed by the given testimony, it possesses the discretion and power to turn it down even if ten men have testified. 3 Conclusion According to most contemporary Islamic scholars, it is generally agreed that legal reform in Islamic tradition has by and large failed to keep up with the demands of modern 21 "Islam and Women: Misconceptions and Misperceptions." Javed Ahmad Ghamdi. February 1, 2005. Accessed November 22, 2015. http://www.javedahmadghamidi.com/renaissance/view/islam-and- women-misconceptions-and-misperceptions-part-1-4.
  13. 13. society and the challenges it brings with it. It is also conceived that while, there is a dire necessity of bringing the current Muslim Personal Law in line with rhetoric of the post united nations and post globalized world to end any form of gender based discrimination, a balance has to be struck between upholding the basic tenets of Islam in light of informed interepretations of the Qur’an and incorporation of discourse focusing on universally accepted values on gender equality.
  14. 14. Bibliography Hallaq, WB, Sharī‘a: Theory, Practice, Transformations (CUP 2009) ‘Engineering family law’ 459-73. Rahman, F, 'A Survey of Modernization of Muslim Family Law' (1980) 11 International Journal of Middle East Studies 451. Chaudhry, Mohammad. "Women's Rights in Islam by Dr. Muhammad Sharif Chaudhry (Chapter 9)." Books on Islam. October 11, 2003. Accessed November 22, 2015. http://www.shaufi.com/b2/b2_09.htm. Wattoo, Ayesha. "Inheritance Rights of Women." Pakistan Today. November 11, 2014. Accessed November 22, 2015. http://www.pakistantoday.com.pk/2014/11/11/comment/inheritance-rights-of- women/. "Islam and Women: Misconceptions and Misperceptions." Javed Ahmad Ghamdi. February 1, 2005. Accessed November 22, 2015. http://www.javedahmadghamidi.com/renaissance/view/islam-and-women- misconceptions-and-misperceptions-part-1-4. Bolaji, Jaiyeola. "A Comparative Study of Women's Rights of Inheritance in Nigeria Under Islamic Law and Some Customary Laws." Graduate Theses, University of Ilorin, Nigeria, 2011.
  15. 15. Emon, Anver. "The Paradox of Equality and the Politics of Difference: Gender Equality, Islamic Law, and the Modern Muslim State." Social Sciences Research Network, 2011. Accessed November 22, 2015. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1758966. "OSAGI Gender Mainstreaming - Concepts and Definitions." UN News Center. Accessed November 22, 2015. http://www.un.org/womenwatch/osagi/conceptsandefinitions.htm. "The Punjab Commission On The Status Of Women." Muslim Family Laws Ordinance, 1961, Ordinance VIII. Accessed November 22, 2015. http://pcsw.punjab.gov.pk/muslim_family_laws. Mashhour, Amira. "Islamic Law And Gender Equality: Could There Be A Common Ground?: A Study Of Divorce And Polygamy In Sharia Law And Contemporary Legislation In Tunisia And Egypt." Human Rights Quarterly: 562-96. Badawi, Jamal. "Gender Equity in Islam." Accessed November 22, 2015. http://www.sultan.org/books/gender_equity_in_islam.pdf. Raja Muhammad Azram vs Jamila Banaras, 2011 YLR 1595 Mariyam Akhter & anr vs Petitioners Wazir Mohd (2005) HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Rev No. 51 OF 2005 AND Cr M P No. 15 OF 2005 Allah Nawaz vs Station House Officer, Mahmood Kot District, Muzaffargarh, P L D 2013 Lahore 243

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