The Legal Position of Women in Islam
Qur'anic
Passages of Legal Importance Concerning Women in Islam
This document deals with
legal matters concerning women and has been developed from Qur’anic verses. In
Islam, the order in which legal matters are presented is the order in which the
corresponding passages appear in the Qur’an – the holy book of the Muslims.
However this document presents the subject using the reverse order of the
Qur'anic passages. In general, the last recorded revelations received by
Muhammad are at the beginning of the Qur'an and the first revelations, from
Muhammad's time in Meccan, are at the end of the Qur’an. Since the desire is to
present a chronological feel for how this subject developed during Muhammad’s
time, we will look through the Qur’an from the end to the beginning.
We will look at 21 passages
in the Qur’an. The verses will be quoted for every topic and a note in the form
of a question will follow. The desire is to discover what the legal issues are
that Muslims under the Shari’a (law of Islam) have tried to conclusively draw
out of every passage. In some simple topics, the legal responses from the four
different schools of the Shari’a will be noted. The four schools of Shari'a
are: (1) Hanafite law practiced in Turkish countries, India, Pakistan and
Bangladesh. (2) Malikite law practiced in North Africa and West Africa. (3)
Shafite law practiced in Palestine, Jordan, Syria, Lebanon, Iraq, East Africa
and Indonesia. (4) Hanbalite law practiced in Saudi Arabia.
This is a very revealing
subject because there is little consideration for women and for private sexual
matters neither in the Qur’an nor of the Shari’a. All aspects of sexual life
are treated very explicitly using words that are rarely spoken. We have tried
to discreetly replace them with more modest English words because the Arabic
amounts to pornography. We evade the most difficult passages.
The oldest
passage on our subject deals with judgments on the 'idda of a woman, that means
on the menstrual waiting period after divorce.
1. Judgments
on the 'idda (menstrual waiting time after divorce)
Sura 65:4-7 Such of
your women as have passed the age of monthly courses, for them the prescribed
period, if ye have any doubts, is three months, and for those who have no
courses (it is the same): for those who carry (life within their wombs), their
period is until they deliver their burdens: and for those who fear Allah, He
will make their path easy. 5 That is the Command of Allah, which He has
sent down to you: and if any one fears Allah, He will remove his ills, from
him, and will enlarge his reward. 6 Let the women live (in 'iddat, that
means this menstrual waiting period) in the same style as ye live, according to
your means: Annoy them not, so as to restrict them. And if they carry (life in
their wombs), then spend (your substance) on them until they deliver their
burden: and if they suckle your (offspring), give them their recompense: and
take mutual counsel together, according to what is just and reasonable. And if
ye find yourselves in difficulties, let another woman suckle (the child) on the
(father's) behalf. 7 Let the man of means spend according to his means:
and the man whose resources are restricted, let him spend according to what
Allah has given him. Allah puts no burden on any person beyond what He has
given him. After a difficulty, Allah will soon grant relief.
Legal issues (that are
treated in connection with this passage are the following):
a) What
is the 'idda of a woman who does not menstruate? This is just a question. There
is a legal waiting period usually of three menstrual periods, which means about
three months. But if a woman has no monthly period, what is 'idda for her? This
is very complex so we won't go into details.
b) What
is at issue when the Allah said: “if you have any doubts, then their prescribed
period is three months?”
c) How
long is the 'idda of the pregnant woman? Usually until the end of her pregnancy
when she gives birth.
d) Has
the divorced woman the right to subsidies and lodging for three months? That
means for three menstrual periods. Here I will summarize the judgments: (Malikite
& Shafite: lodging but no subsidies; Hanafite:
Lodging and subsidies; Hanbalite: neither lodging nor subsidies are
allowed to be given her) To understand why this question may be important,
consider the following. The 'idda, the waiting period, only comes into affect
after a divorce has been pronounced by the husband. Theoretically she should
leave the home because the divorce is final. In event a child was conceived there
should be no conflict as to whether or not it was by the former husband because
she can only remarry after this waiting period of three menstrual times. So
after divorce and during the 'idda time, the question is, what are the
obligations of the former husband with the respect of the wife. The Malikites
and the Shafites say, he has to allow her to live in his home but he doesn't
have to give her something to eat. The Hanafites say she has to live and eat at
the home and the Hanbalites say neither lodging nor food need to be provided by
the former husband.
e) Who
must do the suckling (breast-feeding)?
The next
topic relates to the first three verses of the same Sura.
2. Judgments
on divorce
Sura 65:1-3 O Prophet!
When ye do divorce women, divorce them at their prescribed periods, and count
(accurately), their prescribed periods: And fear Allah your Lord: and turn them
not out of their houses, nor shall they (themselves) leave, except in case they
are guilty of some open lewdness, those are limits set by Allah: and any who
transgresses the limits of Allah, does verily wrong his (own) soul: thou
knowest not if perchance Allah will bring about thereafter some new situation. 2
Thus when they fulfill their term appointed, either take them back on equitable
terms or part with them on equitable terms; and take for witness two persons
from among you, endued with justice, and establish the evidence (as) before
Allah. Such is the admonition given to him who believes in Allah and the Last
Day. And for those who fear Allah, He (ever) prepares a way out, 3 And
He provides for him from (sources) he never could imagine. And if any one puts
his trust in Allah, sufficient is (Allah) for him. For Allah will surely
accomplish his purpose: verily, for all things has Allah appointed a due
proportion.
Legal issues treated
most of the Islamic jurist in connection with this verse follow:
a) Is
divorce permitted or should one be warned against it? That means, is it okay
from the point of view of the Shari’a?
b) What
is the Sunnite divorce and what are its conditions?
c) Does
the women in her 'idda have to leave her house? (Malikite & Hanbalite:
during the day but not at night; Shafite & Hanafite:
neither during the day nor at night)
d) What
is the open lewdness that necessitates a woman in her 'idda to leave the house
permanently?
e) What
is the judgment concerning witnesses in view of the separation of the woman
from her husband and in view of her coming back?
Every one of
these legal issues is usually very complex with many different authorities
cited. This is why we cannot go into detail. We just want to give you an
impression of what type of questions are asked in connection with specific
passages from the Qur’an when you are a jurist in Islam and when you live under
the Shari’a.
The third
topic is from Sura 60:10-13.
3.
Intermarriage between Muslims and al-Mushrikun (Associators,
which means those who associate other gods with Allah, i.e. heathens and
Christians)
Sura
60:10-13 O ye who believe! When there come to you believing
women refugees, examine (and test) them: Allah knows best as to their Faith: if
ye ascertain that they are Believers (that means Muslims), then send them not
back to the Unbelievers. They are not lawful (wives) for the Unbelievers, nor
are the (Unbelievers) lawful (husbands) for them. But pay the Unbelievers what
they have spent (on their dower), and there will be no blame on you if ye marry
them on payment of their dower to them. But hold not to the guardianship of
unbelieving women: ask for what ye have spent on their dowers, and let the
(Unbelievers) ask for what they have spent (on the dowers of women who come
over to you). Such is the command of Allah: He judges (with justice) between
you. And Allah is Full of Knowledge and Wisdom. 11 And if any of your
wives deserts you to the Unbelievers, and ye have an accession (an accusation)
(by the coming over of a woman from the other side), then pay to those whose
wives have deserted the equivalent of what they had spent (on their dower). And
fear Allah, in Whom ye believe. 12 O Prophet! When believing women come
to thee to take the oath of fealty to thee, that they will not associate in
worship any other thing whatever with Allah, that they will not steal, that
they will not commit adultery (or fornication), that they will not kill their
children, that they will not utter slander, intentionally forging falsehood,
and that they will not disobey thee in any just matter, - then do thou receive
their fealty, and pray to Allah for the forgiveness (of their sins): for Allah
is Oft-Forgiving, Most Merciful. 13 O ye who believe! Turn not (for
friendship) to people on who is the Wrath of Allah (these are the Jews); of the
Hereafter they are already in despair, just as the Unbelievers are in despair about
those (buried) in graves.
Legal issues:
a) Did
a peace treaty between Muhammad and his enemies encompass men and women or was
it only applicable to men?
b) What
is the judgment concerning a mushrikat (a woman who associates other gods with
Allah) that comes out to us as a Muslim?
c) Is
it possible to marry a heathen mushrika? (Those who associate gods with Allah
are the Christians, who are members of the people of the book, and the
heathens, who are polytheists. So the question is, is it possible to marry a
mushrika who is heathen?)
d) How
did the Prophet accept fealty? (An act of faithfulness by women enemies, who
offered money so that they could be accepted as a Muslim. That means women
enemies of Islam, either Jews, Christians or the heathens of Mecca, who said:
“Here, take this money. Please accept me into your nation of Islam.")
e) What
does Allah mean when he says “they will not disobey you in any just
matter?"
4. The Zihar
(a special divorcing formula: when the man says to his wife “you are to me like
the back of my mother”) and its atonement.
You are to
me as the back of my mother; this type of divorce is an important legal issue
in Islam.
Sura 58:1-4 Allah has
indeed heard (and accepted) the statement of the woman who pleads with thee
concerning her husband and carries her complaint (in prayer) to Allah: and
Allah (always) hears the arguments between both sides among you: for Allah
hears and sees (all things). 2 If any men among you divorce their wives
by Zihar (calling them mothers, using this swearing formulas: you are to me
like the back of my mothers), they cannot be their mothers: None can be their
mothers except those who gave them birth. And in fact they use words (both)
iniquitous and false: but truly Allah is one that blots out (sins), and
forgives (again and again). 3 But those who divorce their wives by
Zihar, then wish to go back on the words they uttered, (It is ordained that
such a one) should free a slave before they touch each other: Thus are ye
admonished to perform: and Allah is well-acquainted with (all) that ye do. 4
And if any has not (the wherewithal), he should fast for two months
consecutively before they touch each other. But if any is unable to do so, he
should feed sixty indigent ones, this, that ye may show your faith in Allah and
His Apostle. Those are limits (set by) Allah. For those who reject (Him), there
is a grievous Penalty.
Legal issues:
a) Is
zihar lawful like divorce or is it prohibited? Divorce is lawful. Any husband
can divorce his wife whenever he wants.
b) What
judgments apply to zihar?
c) What
does it mean, “to go back on the words they uttered”? The words used in Arabic here are very
obscure, that is why even in Arabic it is not clear what it means.
d) Is
it possible to practice zihar with the non-Muslim woman, such as the dhimmi and
the women of the book? (Dhimmi are the conquered peoples of a once non-Muslim
country who are under the obligation of Islam – like people of the book, who
pay pull-tax because they are Jews or Christians.)
e) Is
it possible to practice zihar with a concubine? (Hanafite & Hanbalite
& Shafite: no; Malikite: yes in connection with
this question)
f)
Can a woman practice zihar? That
means, can she say the same formulas to her husband? (No, because the formula
requires the partner to be female.)
g) Does
zihar only concern the mother or can you also use other people related to you
in the formula?
h) What
is the atonement for zihar? We read the details in the passage.
i)
Does the atonement for zihar become
obsolete if the husband touches his wife before the atonement is effected?
This shows
you how delicate and intricate legal questions are discussed, starting from one
specific text of the Qur’an.
5. The veil
of the Muslim woman
Sura 33:59 O Prophet!
Tell thy wives and daughters, and the believing women, that they should cast
their outer garments over their persons (when abroad): that is most convenient,
that they should be known (as such) and not molested. And Allah is
Oft-Forgiving, Most Merciful.
Legal issues:
a) Do
all women have to be veiled? Yes, and all kinds of traditions are given to
explain this.
b) What
does the veil have to be like? It is not allowed to have ornaments. It has to
be very simple and one should not be able to look through it.
c) Does
a woman have to veil her face? This was debated but the final analysis of the
handbook is, yes.
d) What
are the legal conditions for the veil? Here you have an infinite number of
details that we do not go into.
6. Divorce
before touching the woman
Sura 33:49 O ye who
believe! When ye marry believing women, and then divorce them before ye have
touched them, no period of 'Iddat have ye to count in respect of them: so give
them a present (lit. let them enjoy something). And set them free in a handsome
manner.
Legal issues:
a) Is
it possible to practice divorce before sexual intercourse? (Hanafite
& Malikite: yes; Shafite & Hanbalite:
no. For the Shafites and Hanbalites, that means before sexual intercourse
takes place the marriage has not been effected. Therefore no divorce can take
place, while the Hannafites in India and the Malakites in West Africa say that
the marriage contract completes the marriage without sexual intercourse.
b) Does
true privacy (with wife, in which intercourse might have happened) make it
necessary to pay the dowry and to observe the 'idda? (Hanafite, Malikite &
Hanbalite: yes; Shafite: no) That means, if you were
alone with the wife, regardless of whether something happened between the two
or not, does the dowry have to be paid to the wife and does the 'idda have to
be observed if the husband says, “I don’t want to have you anymore.” The
Hanafites, Malakites and Hanbalites say yes. Only the Shafites in East Africa
and Indonesia say no, even if they are together alone and nothing happens, the
dowry does not have to be paid and 'idda does not have to be observed if they
are separated.
c) What
is the status of the woman who was divorced and then taken back before she was
touched: must she observe the 'idda when her husband takes her back?
d) Has
every divorced woman the right to a present – something to enjoy when she is
divorced? The unanimous answer of all the schools of law is yes. Every divorced
woman has the right to something to enjoy.
7. Asking
for permission (al ista idan) in the times of seclusion (privacy). This is only
indirectly connected to the position of women but it gives you some idea of
what type of questions are treated in the Shari’a.
Sura
24:58-60 O ye who believe! Let those whom your right hands
possess (that means your slaves), and the (children) among you who have not
come of age ask your permission (before they come to your presence in your
privacy), on three occasions: before morning prayer; the while ye take off your
clothes for the noonday heat; and after the late-night prayer: these are your
three times of undress: outside those times it is not wrong for you or for them
to move about attending to each other: Thus does Allah make clear the Signs to
you: for Allah is full of knowledge and wisdom. 59 But when the children
among you come of age, let them (also) ask for permission, as do those senior
to them (in age) (that means they always have to ask permission, when they can
come into your presents): Thus does Allah make clear His Signs to you: for
Allah is full of knowledge and wisdom. 60 Such elderly women as are past
the prospect of marriage, - there is no blame on them if they lay aside their
(outer) garments, provided they make not a wanton display of their beauty: but
it is best for them to be modest: and Allah is One Who sees and knows all
things.
Legal issues:
a) Who
is addressed in the verse? This is often a very important question in the
Shari’a to know to whom the stipulations of the Qur’an actually apply.
b) What
does the expression “those whom your right hands possess” mean in the verse? As
I said, these are the slaves, both male and female.
c) How
can the youngster be exhorted to do something before the youngster comes of
age? As a general doctrine, the Shari’a can only be applied to a young person
after that person comes of age. But here you have a case where an injunction is
addressed to a youngster and he or she is still not of age. So this is a legal
tension.
d) Is
the asking for permission a duty or only an exhortation? There are various
views about it that we won't go into detail on.
e) At
what age do youngsters come of age and become liable to conform to the law? (Hanafite:
18yrs; Malikite:?; Shafite & Hanbalite:
15yrs)
f)
Is the growth of pubic hair an
indication that the child is now of age? This is a question that is dealt with
by various ideas that are difficult to summarize.
g) What
is meant by the laying aside of (outer) garments in the verse regarding elderly
ladies?
8.
Encouragement to marry and warning about prostitution
Sura
24:32-34 Marry those among you who are single, or the virtuous
ones among yourselves, male or female: if they are in poverty, Allah will give
them means out of His grace: for Allah encompasseth all, and he knoweth all
things. 33 Let those who find not the wherewithal for marriage keep
themselves chaste, until Allah gives them means out of His grace. And if any of
your slaves ask for a deed in writing (to enable them to earn their freedom for
a certain sum), give them such a deed if ye know any good in them: yea, give
them something yourselves out of the means which Allah has given to you. But
force not your maids to prostitution when they desire chastity, in order that
ye may make a gain in the goods of this life. But if anyone compels them, yet,
after such compulsion, is Allah, Oft-Forgiving, Most Merciful (to them), 34
We have already sent down to you verses making things clear, an illustration
from (the story of) people who passed away before you, and an admonition for
those who fear (Allah).
This verse
is a source of an infinite amount of suffering among girl slaves.
Legal issues:
a) Who
is addressed in the verse?
b) Is
marriage a duty or recommended? (Hanafite, Malikite &
Hanbalite: recommended; Shafite: Allowed – it is not even
recommended, it is only possible to marry. None of them say that it is a duty.)
c) Can
the guardian force the virgin girl who is of age to marry? (Hanafite,
Malikite & Hanbalite: no; Shafite: yes)
d) Can
a woman be her own guardian in contracting her marriage contract? (All of them
say no; a woman cannot marry herself. She always has to have a male
representative act as her guardian and sign the contract for her.)
e) Can
a freeman marry a concubine? Can a master marry his slave girl? (Hanafite:
yes; Shafite: no; Malikite & Hanbalite:no
ruling)
f)
Do spouses have to be divorced in
case of bankruptcy?
g) What
is the judgment concerning the mut´a marriage? (This is a temporal marriage for
the sole purpose of sexual enjoyment. Sunni Islam forbids this. In Shiite Islam
it is allowed. There is a very simple oral contract with a girl, saying
something like: “I want to enjoy you for a couple of days.” Money is given to
her and then they depart when the "marriage" is over. But in spite of
refusing this mut´a marriage, the Sunnites use this while abroad or while they
are at war. The Sunnites have found a way around it by making a legal contract
of marriage, and immediately after signing the contract, both parties agree to
divorce after a certain time. The whole thing is technically the same as
marriage for the purpose of sexual enjoyment, but it has a legal standing.)
h) Is
it necessary to issue a deed to a slave, so that he/she can earn his/her own
freedom?
i)
Who are the ones addressed in the
expression “give them something yourselves out your means”, and how much is its
amount?
j)
In "but force not your maids to
prostitution," what does it mean to be forced, and does this circumstance
prevent the necessity of punishment? (yes) The passage concerns the forcing of
girls who are concubines, which means slaves, to prostitution. Does this
circumstance prevent the necessity of punishing the girls that are forced into
prostitution, i.e. adultery and fornication? Even a slave girl that is married
can be forced to prostitution and technically she would be an adulteress and
should be stoned, but because she was forced, she is not liable to punishment.
9. The
verses on the veil and on gazing
Sura 24:30-31 (These are
the two verses immediately before the last passage): Say to the believing men
that they should lower their gaze and guard their modesty: that will make for
greater purity for them: And Allah is well acquainted with all that they do. 31
And say to the believing women that they should lower their gaze and guard
their modesty; that they should not display their beauty and ornaments except
what (must ordinarily) appear thereof; that they should draw their veils over
their bosoms and not display their beauty except to their husbands, their
fathers, their husband's fathers, their sons, their husbands' sons, their
brothers or their brothers' sons, or their sisters' sons, or their women, or
the slaves whom their right hands possess, or male servants free of physical
needs, or small children who have no sense of the shame of sex; and that they
should not strike their feet in order to draw attention to their hidden
ornaments (that are attached to their feet). And O ye Believers! turn ye all
together towards Allah, that ye may attain Bliss.
Legal issues:
a) What
is the judgment concerning gazing on foreign women (i.e. women that don’t
belong to your household)? (It is forbidden. You are not allowed to look at
other women. This is why women must be veiled.)
b) What
must by all means be veiled on women and on men? (Hanafite &
Malikite: for women everything except face and hands; Shafite &
Hanbalite: for women everything has to be covered. Nothing of her
flesh should be seen of her body.)
c) What
is "their beauty," which women are forbidden to display? (The unanimous
answer is anything that is: (1) bodily, (2) acquired, (3) apparent and (4)
hidden. A whole list of things apply; e.g. perfume belongs to the beauty of
women so a woman is not allowed to wear perfume outside of the house.)
d) Who
are the people of the household in front of whom a woman may display her
beauty? See the list in verse 31.
e) Is
it possible for a Muslim woman to appear before an infidel woman?
f)
Is it allowed for a woman to
unclothe herself before her slave?
g) Who
are the men with physical needs (before whom a woman may display her beauty)?
These are eunuchs who have been castrated.
h) Who
is the child in front of whom the woman need not be veiled?
i)
Does the voice of the woman belong
to her intimate parts? That means, must she regulate her voice in public. The
answer is yes. She should only mutter very silently, because her voice can
attract men to her.
10. The
li'aan between married couples (the swearing that the partner committed
adultery) (this is one type of effecting divorce)
Sura 24:6-10 And for
those who launch a charge against their spouses, and have (in support) no
evidence but their own, their solitary evidence (can be received) if they bear
witness four times (with an oath) by Allah that they are solemnly telling the
truth; 7 And the fifth (oath) (should be) that they solemnly invoke the
curse of Allah on themselves if they tell a lie. 8 But it would avert
the punishment from the wife, if she bears witness four times (with an oath) by
Allah, that (her husband) is telling a lie; 9 And the fifth (oath)
should be that she solemnly invokes the wrath of Allah on herself if (her
accuser) is telling the truth. 10 If it were not for Allah's grace and
mercy on you, and that Allah is Oft-Returning, full of Wisdom, (Ye would be
ruined indeed).
This is
another tangled web of technical questions for Shari’a people. That’s what they
delight in.
Legal issues:
a) When
is li'aan obligatory? When is it necessary to swear that the woman has
committed adultery and then swear that God shall destroy me if I am telling a
lie?
b) Is
li'aan an oath or a testimony? (Hanafite: testimony; Shafite:
oath. This concerns if it is wrong, what then do you have to do? How do you
precede according to legal process?)
c) Is
it possible to apply li'aan to the infidel, the slave, or the one who is liable
to be stoned for adultery? The answer is no.
d) Is
it possible to practice li'aan without the presence of a judge? The answer is
no. This is a highly legal affair. It is bound to the court situation.
e) How
is li'aan formulated? All kinds of variants are taken in account.
f)
If one of the two spouses does not
counter the li'aan of the other, does punishment have to be executed against
that person? This issue involves only the charge that the other one has
committed adultery.
g) Does
the verse about li'aan abrogate the verse about stoning of the adulterer? There
are various views that we will not summarize here.
h) Should
the spouses that practiced li'aan be separated from each other? (yes,
indefinitely: no remarriage is ever possible again. The other normal types of
divorce allow under certain circumstances the remarriage. But li'ann is an
indefinite separation.)
i)
If the husband retracts his li'aan
by saying he lied about it, may his wife then come back to him? There are
different views about it.
j)
Does the child of li'aan follow his
mother or not?
11. Accusing
married women to have committed adultery
Sura 24:4-5 And those
who launch a charge against chaste women, and produce not four witnesses (to
support their allegations), flog them with eighty stripes; and reject their
evidence ever after: for such men are wicked transgressors; 5 Unless
they repent thereafter and mend (their conduct); for Allah is Oft-Forgiving,
Most Merciful.
Legal issues:
a) What
is chastity? (There are four aspects to chastity, which allow a person to be
muasina (a technical term in Shari’a). First of all the person has to be of
sound mind, not mad; second it has to be a free person; third the person has to
be married (marriage belongs to chastity); and finally the person has to be a
Muslim)
b) What
are the conditions for accusing somebody of adultery?
c) What
conditions must be fulfilled by the one who is accused? That means first of
all, what are the conditions for those who are accusing and then the one who is
accused.
d) What
are the words of accusation that enforce the application of capital punishment?
e) What
is the judgment concerning a man who accuses a group of having committed
adultery?
f)
Must the accusers agree in their
accusation? The unanimous answer is yes.
g) Is
it a condition that the accusers have to testify when they are assembled
together? So that they can speak together. The answer is no.
h) Is
the punishment for the slave the same as the punishment of the freeman? The
answer is no; it is only half.
i)
Is capital punishment one of the
rights of Allah or one of the rights of human beings? There are various
answers. Will the testimony of the accuser be accepted if he repented? The
answer is no.
12. The
punishment for adultery
Sura 24:1-3 A sura
which We have sent down and which We have ordained in it have We sent down
Clear Signs, in order that ye may receive admonition. 2 The woman and
the man guilty of adultery or fornication, flog each of them with a hundred
stripes: Let not compassion move you in their case, in a matter prescribed by
Allah, if ye believe in Allah and the Last Day: and let a party of the
Believers witness their punishment. 3 Let no man guilty of adultery or
fornication marry but a woman similarly guilty, or an Unbeliever: nor let any
but such a man or an Unbeliever marry such a woman: to the Believers such a thing
is forbidden.
Here, of
course, the legal issues are incredible. The following is the summary:
Legal issues:
a) How
was the punishment for adultery before Islam? This is a legal question.
b) What
is the punishment for the unmarried and the punishment for the married
adulterer? (In case of fornication with someone unmarried: 100 lashes; in
case of adultery with someone married: stoning. There are regions in the
Islamic world where stoning is still practiced today, e.g. in Iran.)
c) Is
it necessary to exile the adulterer? (Hanafite: no; Malikite,
Shafite & Hanbalite: yes. An adulterer is no
longer allowed to live in the community where he or she was.)
d) What
is the punishment of adultery with someone married? (Hanafite:
lashes; Malikite, Shafite & Hanbalite: stoning)
e) Who
executes the punishment? (The Imam, leader in a Mosque or community)
f)
How does lashing have to be
administered? A lot of details are given.
g) What
parts of the body must be hit in the punishment? All parts that do not belong
to the beauty of the women and the face has to be covered.
h) Is
there prohibition of intercession for the person being punished?
i)
Who must be present at the execution
of the punishment?
j)
What is the judgment concerning male
and female homosexuals and those who have intercourse with animals? (Male
homosexuality: Hanafite: reprimand; Malikite: execution; Shafite:
lashes or stoning; Hanbalite: execution. Female homosexuality and
intercourse with animals: unanimously only reprimand, no other punishment.)
k) How
is the crime of adultery ascertained? (only on the basis of the testimony of
men, not that of women)
l)
Is it possible to marry an
adulterous woman? (yes)
13. Methods
for dealing with tensions between married couples
This is a
well-known passage where a husband is allowed to beat his wife.
Sura 4:34-36 Men are the
protectors and maintainers of women, because Allah has given the one more
(strength) than the other, and because they support them from their means.
Therefore the righteous women are devoutly obedient, and guard in (the
husband's) absence what Allah would have them guard. As to those women on whose
part ye fear disloyalty and ill conduct, admonish them (first), (Next), refuse
to share their beds, (And last) beat them; but if they return to obedience,
seek not against them Means (of annoyance): For Allah is Most High, great
(above you all). 35 If ye fear a breach between them twain, appoint
(two) arbiters, one from his family, and the other from hers; if they wish for
peace, Allah will cause their reconciliation: For Allah hath full knowledge,
and is acquainted with all things. 36 Serve Allah, and join not any
partners with Him; and do good to parents, kinsfolk, orphans, those in need,
neighbors who are near, neighbors who are strangers, the companion by your
side, the wayfarer (ye meet), and what your right hands possess: For Allah
loveth not the arrogant, the vainglorious.
Legal issues:
a) What
are the steps that Islam guides men to when they have to deal with disobedient
women?
b) Are
these punishments ordained according to the order in which they appear in this
Qur'anic passage?
c) Is
it possible for the arbiters to be from people who are not relatives?
d) Who
is the one addressed in the statement, “If you fear a breach between them?”
e) Can
the arbiters dissolve the marriage without the consent for the couple? (Hanafite:
no; Malikite: yes; Shafite: yes; Hanbalite: no)
14. Women
who are taboo (that means women who cannot be married: three types
of relations. Normal relatives cannot be married, certain co-sacked women, that
means woman who have been breast-feed by the same lady as the man who wants to
marry them and certain in-law-women.)
Sura 4:19-24 O ye who
believe! Ye are forbidden to inherit women against their will. Nor should ye
treat them with harshness, that ye may Take away part of the dower ye have
given them, except where they have been guilty of open lewdness; on the
contrary live with them on a footing of kindness and equity. If ye take a
dislike to them it may be that ye dislike a thing, and Allah brings about
through it a great deal of good. 20 But if ye decide to take one wife in
place of another, even if ye had given the latter a whole treasure for dower,
Take not the least bit of it back: Would ye take it by slander and manifest
wrong? 21 And how could ye take it when ye have gone in unto each other,
and they have Taken from you a solemn covenant? 22 And marry not women
whom your fathers married, except what is past: It was shameful and odious, an
abominable custom indeed. 23 Prohibited to you (For marriage) are: Your
mothers, daughters, sisters; father's sisters, Mother's sisters; brother's
daughters, sister's daughters; foster-mothers (Who gave you suck),
foster-sisters; your wives' mothers; your step-daughters under your
guardianship, born of your wives to whom ye have gone in, no prohibition if ye
have not gone in; (Those who have been) wives of your sons proceeding from your
loins; and two sisters in wedlock at one and the same time, except for what is
past; for Allah is Oft-forgiving, Most Merciful; 24 Also (prohibited
are) women already married, except those whom your right hands possess: Thus
hath Allah ordained (Prohibitions) against you: Except for these, all others
are lawful, provided ye seek (them in marriage) with gifts from your property,
desiring chastity, not lust, seeing that ye derive benefit from them, give them
their dowers (at least) as prescribed; but if, after a dower is prescribed,
agree Mutually (to vary it), there is no blame on you, and Allah is
All-knowing, All-wise.
Legal issues:
a) What
is the amount of the dowry prescribed by the Islamic Shari’a?
b) What
is meant by the dower that you take by slander and manifest wrong (v. 20)?
c) Who
are the women that are taboo for Muslims to which this verse has guided? (certain
normal relatives, certain co-sucked women, certain in-law women)
d) Does
the lowliness of the wife prohibit the marriage relationship?
e) What
is the judgment concerning the mut'a marriage (temporal marriage of sexual
enjoyment) and the views of the jurists about it?
15. The
plurality of wives and its wisdom in Islam (It is allowed for a man to
marry up to four woman.)
Sura 4:1-4 O mankind!
reverence your Guardian-Lord, who created you from a single person, created, of
like nature, His mate, and from them twain scattered (like seeds) countless men
and women; reverence Allah, through whom ye demand your mutual (rights), and
(reverence) the wombs (that bore you): for Allah ever watches over you. 2
To orphans restore their property (When they reach their age), or substitute
(your) worthless things for (their) good ones; and devour not their substance
(by mixing it up) with your own. For this is indeed a great sin. 3 If ye
fear that ye shall not be able to deal justly with the orphans, Marry women of
your choice, Two or three or four; but if ye fear that ye shall not be able to
deal justly (with them), then only one, or (a captive) that your right hands
possess, that will be more suitable, to prevent you from doing injustice. 4
And give the women (on marriage) their dower as a free gift; but if they, of
their own good pleasure, remit any part of it to you, Take it and enjoy it with
right good cheer.
Legal issues:
a) What
it the judgment concerning reverence to the wombs that bore you?
b) Is
an orphan given his money before he comes of age?
c) Is
the saying of Allah “marry women of your choice” a matter of necessity or of
possibility?
d) What
does Allah’s saying mean “two or three or four”?
16. Engaging
women and their right to a dowry (concerns the ruling on engagement
as it relates to the right to a dowry.)
Sura
2:235-237 There is no blame on you if ye make an offer of
betrothal or hold it in your hearts. Allah knows that ye cherish them in your
hearts: But do not make a secret contract with them except in terms Honorable,
nor resolve on the tie of marriage till the term prescribed is fulfilled. And
know that Allah knoweth what is in your hearts, and take heed of Him; and know
that Allah is Oft-forgiving, Most Forbearing. 236 There is no blame on
you if ye divorce women before consummation or the fixation of their dower; but
bestow on them (A suitable gift), the wealthy according to his means, and the
poor according to his means; A gift of a reasonable amount is due from those
who wish to do the right thing. 237 And if ye divorce them before
consummation, but after the fixation of a dower for them, then the half of the
dower (Is due to them), unless they remit it or (the man's half) is remitted by
him in whose hands is the marriage tie; and the remission (of the man's half)
is the nearest to righteousness. And do not forget Liberality between
yourselves. For Allah sees well all that ye do.
Legal issues:
a) What
is the judgment concerning the engagement of women?
b) Is
marriage during the 'idda valid or invalid?
c) What
is the judgment concerning the divorced woman before entering her?
d) Must
the gift necessarily be given to every divorced woman? What is the gift and how
much is it?
17. The
'idda of the woman whose husband dies (that means the waiting
period of a woman whose husband dies and how long the woman has to mourn for
her husband after he dies)
Sura 2:234 If any of
you die and leave widows behind, they shall wait concerning themselves four
months and ten days: When they have fulfilled their term, there is no blame on
you if they dispose of themselves in a just and reasonable manner. And Allah is
well acquainted with what ye do.
Legal issues:
a) How
long is the 'idda of the pregnant woman, whose husband died?
b) What
is mourning, and how long does the woman mourn for her husband?
c) Why
was the 'idda legislated on the woman?
18.
Judgments on the suckles (those who were breast-fed or who are breast-fed) The central
question is whether a woman has to breast-feed her children. Some schools say
yes. Others say no. And how long woman have to breast-feed their babies.
Sura 2:233 The mothers
shall give suck to their offspring for two whole years, if the father desires
to complete the term. But he shall bear the cost of their food and clothing on
equitable terms. No soul shall have a burden laid on it greater than it can
bear. No mother shall be treated unfairly on account of her child. Nor father
on account of his child, an heir shall be chargeable in the same way. If they
both decide on weaning, by mutual consent, and after due consultation, there is
no blame on them. If ye decide on a foster-mother for your offspring, there is
no blame on you, provided ye pay (the mother) what ye offered, on equitable
terms. But fear Allah and know that Allah sees well what ye do.
Legal issues:
a) Who
are the mothers in this verse?
b) Is
the mother obliged to breast-feed? (Hanafite, Shafite &
Hanbalite: no; Malikite: yes)
c) How
long is the prescribed period of breast-feeding? (Hanafite: 30
months; Malikite, Shafite & Hanbalite: 24
months)
d) How
does one estimate the expense for breast-feeding?
e) What
does the phrase “an heir shall be chargeable in the same way” mean?
19.
Legislation on divorce in Islam - The central idea is that the man
can divorce his wife whenever he wants. He only has to utter the divorce
formula three times after each other and then the divorce is perfect. He can
only remarry her after the woman had married a man other than her original
husband.
Sura
2:228-231 Divorced women shall wait concerning themselves for
three monthly periods. Nor is it lawful for them to hide what Allah Hath
created in their wombs, if they have faith in Allah and the Last Day. And their
husbands have the better right to take them back in that period, if they wish
for reconciliation. And women shall have rights similar to the rights against
them, according to what is equitable; but men have a degree (of advantage) over
them. And Allah is Exalted in Power, Wise. 229 A divorce is only
permissible twice: after that, the parties should either hold together on
equitable terms, or separate with kindness. It is not lawful for you, (Men), to
take back any of your gifts (from your wives), except when both parties fear
that they would be unable to keep the limits ordained by Allah. If ye (judges)
do indeed fear that they would be unable to keep the limits ordained by Allah,
there is no blame on either of them if she give something for her freedom.
These are the limits ordained by Allah; so do not transgress them if any do
transgress the limits ordained by Allah, such persons wrong (themselves as well
as others). 230 So if a husband divorces his wife (irrevocably), he
cannot, after that, re-marry her until after she has married another husband
and he has divorced her. In that case there is no blame on either of them if
they re-unite, provided they feel that they can keep the limits ordained by
Allah. Such are the limits ordained by Allah, which He makes plain to those who
understand. 231 When ye divorce women, and they fulfill the term of
their ('Iddat), either take them back on equitable terms or set them free on
equitable terms; but do not take them back to injure them, (or) to take undue
advantage; if any one does that; he wrongs his own soul. Do not treat Allah's
Signs as a jest, but solemnly rehearse Allah's favors on you, and the fact that
He sent down to you the Book and Wisdom, for your instruction. And fear Allah,
and know that Allah is well acquainted with all things.
Legal issues:
a) How
long is the 'idda of the divorced woman?
b) What
are the monthly periods? (Hanafite & Hanbalite:
Menstruation periods; Malikite & Shafite:
periods of purification)
c) What
does the saying of Allah mean: “it is not lawful for them to hide what Allah
Hath created in their wombs?”
d) Does
this verse apply to every divorced woman?
e) What
is the judgment concerning the revocable divorce?
f)
Is a threefold divorce that is
uttered in one sentence three or one? (it is three, i.e. definite)
g) What
does the saying of Allah mean: “divorce is only permissible twice”?
h) Is
it permissible for the husband to accept money for divorcing his wife?
i)
What is the judgment concerning the
woman who has been divorced three times, and how can she marry her first
husband again?
j)
Marriage of a definitely divorced
woman – is it valid or invalid? (Hanafite: discouraged; Malikite,
Shafite & Hanbalite: invalid)
20.
Seclusion of women during menstruation
Sura
2:222-223 They ask thee concerning women's courses. Say: They
are a hurt and a pollution: So keep away from women in their courses, and do
not approach them until they are clean. But when they have purified themselves,
ye may approach them in any manner, time, or place ordained for you by Allah.
For Allah loves those who turn to Him constantly and He loves those who keep
themselves pure and clean. 223 Your wives are as a tilth unto you; so
approach your tilth when or how ye will; but do some good act for your souls
beforehand; and fear Allah. And know that ye are to meet Him (in the Hereafter),
and give (these) good tidings to those who believe.
Legal issues:
a) What
must be secluded or evaded of a woman in case of menstruation? (Hanafite
& Malikite: her abdomen; Shafite: her sexual organ)
b) What
is the atonement for him who comes to his wife in her menstruation? (Hanafite,
Malikite & Shafite: asking Allah for
forgiveness; Hanbalite: payment of a charity of 1 dinar)
c) What
is the length of the period of menstruation and what is its minimum and its
maximum? (Hanafite: 3-10 days; Shafite & Hanbalite:
1-15 days)
d) When
is it allowed to approach the woman (again)? (Hanafite: when
the blood ceases; Malikite, Shafite & Hanbalite:
when in addition she has purified herself with ablutions/ritual cleansings)
e) What
is forbidden for a menstruating woman? (ritual prayer, fasting, pilgrimage,
entering a mosque, touching and reading the Qur’an) All of this goes back
to the statement, when they ask you concerning women’s courses, say they are a
hurt and a pollution. According to Islam women are not only degraded but, due
to their physical constitution, are also unclean and impure for a large portion
of their lives. The type of intimacy and privacy that should be reserved for a
woman is not present in Islam. Everything is revealed in a book and in the
Shari’a. Women are to be secluded and put physically under veils to
counterbalance the inner lewdness, the inner obscenity of what the Shari’a and
the Qur’an really are in view of women.
21. Marrying
the mushrikaat (associators of other gods with Allah)
Sura 2:221 Do not
marry unbelieving women (idolaters), until they believe: A slave woman who
believes is better than an unbelieving woman, even though she allures you. Nor
marry (your girls) to unbelievers until they believe: A man slave who believes
is better than an unbeliever, even though he allures you. Unbelievers do (but)
beckon you to the Fire. But Allah beckons by His Grace to the Garden (of bliss)
and forgiveness, and makes His Signs clear to mankind: That they may celebrate
His praise.
Legal issues:
a) Is
it forbidden to wed the women of the book? (no)
b) Who
are the mushrikaat (associators) whom it is forbidden to marry? (the infidel
women, i.e. heathen women).