Women's Rights in Islaam
The Muslim woman has been bestowed with many rights by Allaah Almighty, and it is of great importance in Da'wah that she - the Muslim woman - familiarises herself with the rights that Islaam has blessed her with. Not only will she, herself, then appreciate Islaam more, but in the eyes of those people who think she is 'oppressed' and without rights, she will be able to effectively prove their views wrong. So much so that many of their women, when realising the rights Islaam has given the Muslim woman, will feel envious of her dignified position in Islaam.
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Let us now tackle the important question of polygamy. Polygamy is a very ancient practice found in many human societies. The Bible did not condemn polygamy. To the contrary, the Old Testament and Rabbinic writings frequently attest to the legality of polygamy. King Solomon is said to have had 700 wives and 300 concubines (1 Kings 11:3). Also, King David is said to have had many wives and concubines (2 Samuel 5:13). The Old Testament does have some injunctions on how to distribute the property of a man among his sons from different wives (Deut. 22:7). The only restriction on polygamy is a ban on taking a wife's sister as a rival wife (Lev. 18:18). The Talmud advises a maximum of four wives. [Swidler, op. cit., pp. 144-148]
European Jews continued to practice polygamy until the sixteenth century. Oriental Jews regularly practiced polygamy until they arrived in Israel where it is forbidden under civil law. However, under religious law which overrides civil law in such cases, it is permissible. [Hazleton, op. cit., pp 44-45]
What about the New Testament? According to Father Eugene Hillman in his insightful book, Polygamy Reconsidered:
"Nowhere in the New Testament is there any explicit commandment that marriage should be monogamous or any explicit commandment forbidding polygamy." [Eugene Hillman, Polygamy Reconsidered: African Plural Marriage and the Christian Churches, New York: Orbis Books, 1975, p. 140]
Moreover, Jesus has not spoken against polygamy though it was practiced by the Jews of his society. Father Hillman stresses the fact that the Church in Rome banned polygamy in order to conform to the Greco-Roman culture (which prescribed only one legal wife while tolerating concubines and prostitution). He cited St. Augustine:
"Now indeed in our time, and in keeping with Roman custom, it is no longer allowed to take another wife." [Ibid., p. 17]
African churches and African Christians often remind their European brothers that the Church's ban on polygamy is a cultural tradition and not an authentic Christian injunction.
The Qur'an, too, allowed polygamy, but not without restrictions:
"If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two or three or four; but if you fear that you shall not be able to deal justly with them, then only one." [Al-Qur'an 4:3]
The Qur'an, contrary to the Bible, limited the maximum number of wives to four under the strict condition of treating the wives equally and justly. It should not be understood that the Qur'an is exhorting the believers to practice polygamy, or that polygamy is considered as an ideal. In other words, the Qur'an has "tolerated" or "allowed" polygamy, and no more, but why? Why is polygamy permissible? The answer is simple: there are places and times in which there are compelling social and moral reasons for polygamy. As the above Qur'anic verse indicates, the issue of polygamy in Islam cannot be understood apart from community obligations towards orphans and widows. Islam as a universal religion suitable for all places and all times could not ignore these compelling obligations.
In most human societies, females outnumber males. In the U.S. there are, at least, eight million more women than men. In a country like Guinea there are 122 females for every 100 males. In Tanzania, there are 95.1 males per 100 females. What should a society do towards such unbalanced sex ratios? There are various solutions, some might suggest celibacy, others would prefer female infanticide (which does happen in some societies in the world today!). Others may think the only outlet is that the society should tolerate all manners of sexual permissiveness: prostitution, sex out of wedlock, homosexuality, etc. For other societies , like most African societies today, the most honorable outlet is to allow polygamous marriage as a culturally accepted and socially respected institution. The point that is often misunderstood in the West is that women in other cultures do not necessarily look at polygamy as a sign of women's degradation. For example, many young African brides, whether Christians or Muslims or otherwise, would prefer to marry a married man who has already proved himself to be a responsible husband. Many African wives urge their husbands to get a second wife so that they do not feel lonely. [Ibid., pp. 88-97]
A survey of over six thousand women, ranging in age from 15 to 59, conducted in the second largest city in Nigeria showed that 60 percent of these women would be pleased if their husbands took another wife. Only 23 percent expressed anger at the idea of sharing with another wife. Seventy-six percent of the women in a survey conducted in Kenya viewed polygamy positively. In a survey undertaken in rural Kenya, 25 out of 27 women considered polygamy to be better than monogamy. These women felt polygamy can be a happy and beneficial experience if the co-wives cooperate with each other. [Philip L. Kilbride, Plural Marriage For Our Times, Westport, Conn.: Bergin & Garvey, 1994, pp. 108-109]
Polygamy in most African societies is such a respectable institution that some Protestant churches are becoming more tolerant of it. A bishop of the Anglican Church in Kenya declared that:
"Although monogamy may be ideal for the expression of love between husband and wife, the church should consider that in certain cultures polygyny is socially acceptable and that the belief that polygyny is contrary to Christianity is no longer tenable." [The Weekly Review, Aug. 1, 1987]
After a careful study of African polygamy, Reverend David Gitari of the Anglican Church has concluded that polygamy, as ideally practiced, is more Christian than divorce and remarriage as far as the abandoned wives and children are concerned. [Kilbride, op. cit., p. 126]
I personally know of some highly educated African wives who, despite having lived in the West for many years, do not have any objections against polygamy. One of them, who lives in the U.S., solemnly exhorts her husband to get a second wife to help her in raising the kids.
The problem of the unbalanced sex ratios becomes truly problematic at times of war. Native American Indian tribes used to suffer highly unbalanced sex ratios after wartime losses. Women in these tribes, who in fact enjoyed a fairly high status, accepted polygamy as the best protection against indulgence in indecent activities. European settlers, without offering any other alternative, condemned this Indian polygamy as 'uncivilised'. [John D'Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America, New York: Harper & Row Publishers, 1988, p. 87]
After the Second World War, there were 7,300,000 more women than men in Germany (3.3 million of them were widows). There were 100 men aged 20 to 30 for every 167 women in that age group. Many of these women needed a man not only as a companion but also as a provider for the household in a time of unprecedented misery and hardship. The soldiers of the victorious Allied Armies exploited these women's vulnerability. Many young girls and widows had liaisons with members of the occupying forces. Many American and British soldiers paid for their pleasures in cigarettes, chocolate, and bread. Children were overjoyed at the gifts these strangers brought. A 10 year old boy on hearing of such gifts from other children wished from all his heart for an 'Englishman' for his mother so that she need not go hungry any longer. [Ute Frevert, Women in German History: from Bourgeois Emancipation to Sexual Liberation, New York: Berg Publishers, 1988, pp. 263-264 & 257-258]
We have to ask our own conscience at this point: What is more dignifying to a woman? An accepted and respected second wife as in the native Indians' approach, or a virtual prostitute as in the 'civilised' Allies approach? In other words, what is more dignifying to a woman, the Qur'anic prescription or the theology based on the culture of the Roman Empire?
It is interesting to note that in an international youth conference held in Munich in 1948 the problem of the highly unbalanced sex ratio in Germany was discussed. When it became clear that no solution could be agreed upon, some participants suggested polygamy. The initial reaction of the gathering was a mixture of shock and disgust. However, after a careful study of the proposal, the participants agreed that it was the only possible solution. Consequently, polygamy was included among the conference final recommendations. [Sabiq, op. cit., p. 191]
The world today possesses more weapons of mass destruction than ever before and the European churches might, sooner or later, be obliged to accept polygamy as the only way out. Father Hillman has thoughtfully recognized this fact:
"It is quite conceivable that these genocidal techniques (nuclear, biological, chemical ... ) could produce so drastic an imbalance among the sexes that plural marriage would become a necessary means of survival ... Then contrary to previous custom and law, an overriding natural and moral inclination might arise in favour of polygamy. In such a situation, theologians and church leaders would quickly produce weighty reasons and biblical texts to justify a new conception of marriage." [Hillman, op. cit., p. 12]
To the present day, polygamy continues to be a viable solution to some of the social ills of modern societies. The communal obligations that the Qur'an mentions in association with the permission of polygamy are more visible at present in some Western societies than in Africa. For example, In the United States today, there is a severe gender crisis in the black community. One out of every twenty young black males may die before reaching the age of 21. For those between 20 and 35 years of age, homicide is the leading cause of death. Besides, many young black males are unemployed, in jail, or on dope. [Nathan Hare and Julie Hare, ed., Crisis in Black Sexual Politics, San Francisco: Black Think Tank, 1989, pp. 25-26]
As a result, one in four black women, at age 40, has never married, as compared with one in ten white women. Moreover, many young black females become single mothers before the age of 20 and find themselves in need of providers. The end result of these tragic circumstances is that an increasing number of black women are engaged in what is called 'man-sharing'. That is, many of these hapless single black women are involved in affairs with married men. The wives are often unaware of the fact that other women are 'sharing' their husbands with them. Some observers of the crisis of man-sharing in the African American community strongly recommend consensual polygamy as a temporary answer to the shortage of black males until more comprehensive reforms in the American society at large are undertaken. By consensual polygamy they mean a polygamy that is sanctioned by the community and to which all the parties involved have agreed, as opposed to the usually secret man-sharing which is detrimental both to the wife and to the community in general. The problem of man-sharing in the African American community was the topic of a panel discussion held at Temple University in Philadelphia on January 27, 1993. Some of the speakers recommended polygamy as one potential remedy for the crisis. They also suggested that polygamy should not be banned by law, particularly in a society that tolerates prostitution and mistresses. The comment of one woman from the audience that African Americans needed to learn from Africa where polygamy was responsibly practiced elicited enthusiastic applause. [Kilbride, op. cit., pp. 94-99]
Philip Kilbride, an American anthropologist of Roman Catholic heritage, in his provocative book, Plural marriage for our time, proposes polygamy as a solution to some of the ills of the American society at large. He argues that plural marriage may serve as a potential alternative for divorce in many cases in order to obviate the damaging impact of divorce on many children. He maintains that many divorces are caused by the rampant extramarital affairs in the American society. According to Kilbride, ending an extramarital affair in a polygamous marriage, rather than in a divorce, is better for the children,
"Children would be better served if family augmentation rather than only separation and dissolution were seen as options."
Moreover, he suggests that other groups will also benefit from plural marriage such as: elderly women who face a chronic shortage of men and the African Americans who are involved in man-sharing. [Ibid., p. 118]
In 1987, a poll conducted by the student newspaper at the university of California at Berkeley asked the students whether they agreed that men should be allowed by law to have more than one wife in response to a perceived shortage of male marriage candidates in California. Almost all of the students polled approved of the idea. One female student even stated that a polygamous marriage would fulfil her emotional and physical needs while giving her greater freedom than a monogamous union. [Lang, op. cit., p. 172]
In fact, this same argument is also used by the few remaining fundamentalist Mormon women who still practice polygamy in the U.S. They believe that polygamy is an ideal way for a woman to have both a career and children since the wives help each other care for the children. [Kilbride, op. cit., pp. 72-73]
It has to be added that polygamy in Islam is a matter of mutual consent. No one can force a woman to marry a married man. Besides, the wife has the right to stipulate that her husband must not marry any other woman as a second wife. [Sabiq, op. cit., pp. 187-188] The Bible, on the other hand, sometimes resorts to forcible polygamy. A childless widow must marry her husband's brother, even if he is already married (see the "Plight of Widows" section), regardless of her consent (Genesis 38:8-10).
It should be noted that in many Muslim societies today the practice of polygamy is rare since the gap between the numbers of both sexes is not huge. One can, safely, say that the rate of polygamous marriages in the Muslim world is much less than the rate of extramarital affairs in the West. In other words, men in the Muslim world today are far more strictly monogamous than men in the Western world.
Billy Graham, the eminent Christian evangelist has recognized this fact:
"Christianity cannot compromise on the question of polygamy. If present-day Christianity cannot do so, it is to its own detriment. Islam has permitted polygamy as a solution to social ills and has allowed a certain degree of latitude to human nature but only within the strictly defined framework of the law. Christian countries make a great show of monogamy, but actually they practice polygamy. No one is unaware of the part mistresses play in Western society. In this respect Islam is a fundamentally honest religion, and permits a Muslim to marry a second wife if he must, but strictly forbids all clandestine amatory associations in order to safeguard the moral probity of the community." [Abdul Rahman Doi, Woman in Shari'ah, London: Ta-Ha Publishers, 1994, p. 76]
It is of interest to note that many, non-Muslim as well as Muslim, countries in the world today have outlawed polygamy. Taking a second wife, even with the free consent of the first wife, is a violation of the law. On the other hand, cheating on the wife, without her knowledge or consent, is perfectly legitimate as far as the law is concerned! What is the legal wisdom behind such a contradiction? Is the law designed to reward deception and punish honesty? It is one of the unfathomable paradoxes of our modern 'civilised' world.
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Because of the fact that the Old Testament recognized no inheritance rights to them, widows were among the most vulnerable of the Jewish population. The male relatives who inherited all of a woman's deceased husband's estate were to provide for her from that estate. However, widows had no way to ensure this provision was carried out, and lived on the mercy of others. Therefore, widows were among the lowest classes in ancient Israel and widowhood was considered a symbol of great degradation (Isaiah 54:4). But the plight of a widow in the Biblical tradition extended even beyond her exclusion from her husband's property. According to Genesis 38, a childless widow must marry her husband's brother, even if he is already married, so that he can produce offspring for his dead brother, thus ensuring his brother's name will not die out.
"Then Judah said to Onan, 'Lie with your brother's wife and fulfil your duty to her as a brother-in-law to produce offspring for your brother.' " [Genesis 38:8]
The widow's consent to this marriage is not required. The widow is treated as part of her deceased husband's property whose main function is to ensure her husband's posterity. This Biblical law is still practiced in today's Israel. [Hazleton, op. cit., pp. 45-46]
A childless widow in Israel is bequeathed to her husband's brother. If the brother is too young to marry, she has to wait until he comes of age. Should the deceased husband's brother refuse to marry her, she is set free and can then marry any man of her choice. It is not an uncommon phenomenon in Israel that widows are subjected to blackmail by their brothers-in-law in order to gain their freedom.
The pagan Arabs before Islam had similar practices. A widow was considered a part of her husband's property to be inherited by his male heirs and she was, usually, given in marriage to the deceased man's eldest son from another wife. The Qur'an scathingly attacked and abolished this degrading custom:
"And marry not women whom your fathers married - except what is past - it was shameful, odious, and abominable custom indeed." [Al-Qur'an 4:22]
Widows and divorced women were so looked down upon in the Biblical tradition that the high priest could not marry a widow, a divorced woman, or a prostitute:
"The woman he (the high priest) marries must be a virgin. He must not marry a widow, a divorced woman, or a woman defiled by prostitution, but only a virgin from his own people, so he will not defile his offspring among his people." [Lev. 21:13-15]
In Israel today, a descendant of the Cohen caste (the high priests of the days of the Temple) cannot marry a divorcee, a widow, or a prostitute. In the Jewish legislation, a woman who has been widowed three times with all the three husbands dying of natural causes is considered 'fatal' and forbidden to marry again. [Ibid., pp. 47 & 49]
The Qur'an, on the other hand, recognizes neither castes nor fatal persons. Widows and divorcees have the freedom to marry whomever they choose. There is no stigma attached to divorce or widowhood in the Qur'an:
"When you divorce women and they fulfil their terms [three menstruation periods] 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 anyone does that, he wrongs his own soul. Do not treat Allah's signs as a jest." [Al-Qur'an 2:231]
"If any of you die and leave widows behind, they shall wait 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 manner." [Al-Qur'an 2:234]
"Those of you who die and leave widows should bequeath for their widows a year's maintenance and residence. But if they [the widows] leave (the residence) there is no blame on you for what they justly do with themselves." [Al-Qur'an 2:240]
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The Old Testament in several places commands kind and considerate treatment of the parents and condemns those who dishonor them. For example:
"If anyone curses his father or mother, he must be put to death," [Lev. 20:9] and,
"A wise man brings joy to his father but a foolish man despises his mother." [Proverbs 15:20]
Although honoring the father alone is mentioned in some places, e.g.
"A wise man heeds his father's instruction" [Proverbs 13:1],
the mother alone is never mentioned. Moreover, there is no special emphasis on treating the mother kindly as a sign of appreciation of her great suffering in childbearing and suckling. Besides, mothers do not inherit at all from their children while fathers do. [Epstein, op. cit., p. 122]
It is difficult to speak of the New Testament as a scripture that calls for honoring the mother. To the contrary, one gets the impression that the New Testament considers kind treatment of mothers as an impediment on the way to God. According to the New Testament, one cannot become a good Christian worthy of becoming a disciple of Christ unless he hates his mother. It is attributed to Jesus to have said:
"If anyone comes to me and does not hate his father and mother, his wife and children, his brothers and sisters - yes, even his own life - he can not be my disciple." [Luke 14:26]
Furthermore, the New Testament depicts a picture of Jesus as indifferent to, or even disrespectful of, his own mother. For example, when she had come looking for him while he was preaching to a crowd, he did not care to go out to see her:
"Then Jesus' mother and brothers arrived. Standing outside, they sent someone to call him. A crowd was sitting around him and they told him, 'Your mother and brothers are outside looking for you.' 'Who are my mother and my brothers?' he asked. Then he looked at those seated in a circle around him and said,' Here are my mother and my brothers! Whoever does God's will is my brother and sister and mother.' " [Mark 3:31-35]
One might argue that Jesus was trying to teach his audience an important lesson that religious ties are no less important than family ties. However, he could have taught his listeners the same lesson without showing such absolute indifference to his mother. The same disrespectful attitude is depicted when he refused to endorse a statement made by a member of his audience blessing his mother's role in giving birth to him and nursing him:
"As Jesus was saying these things, a woman in the crowd called out, 'Blessed is the mother who gave you birth and nursed you.' He replied, 'Blessed rather are those who hear the word of God and obey it.' " [Luke 11:27-28]
If a mother with the stature of the virgin Mary had been treated with such discourtesy, as depicted in the New Testament, by a son of the stature of Jesus Christ, then how should an average Christian mother be treated by her average Christian sons?
In Islam, the honor, respect, and esteem attached to motherhood is unparalleled. The Qur'an places the importance of kindness to parents as second only to worshipping God Almighty:
"Your Lord has decreed that you worship none but Him, And that you be kind to parents. Whether one or both of them attain old age in your life, Say not to them a word of contempt, nor repel them, But address them in terms of honor. And out of kindness, Lower to them the wing of humility, and say: 'My Lord! bestow on them Your Mercy as they Cherished me in childhood.'" [Al-Qur'an 17:23-24]
The Qur'an in several other places puts special emphasis on the mother's great role in giving birth and nursing:
"And We have enjoined on man to be good to his parents: In travail upon travail did his mother bear him and in two years was his weaning. Show gratitude to Me and to your parents." [Al-Qur'an 31:14]
The very special place of mothers in Islam has been eloquently described by Prophet Muhammad:
"A man asked the Prophet: 'Whom should I honor most?' The Prophet replied: 'Your mother'. 'And who comes next?' asked the man. The Prophet replied: 'Your mother'. 'And who comes next?' asked the man. The Prophet replied: 'Your mother!'. 'And who comes next?' asked the man. The Prophet replied: 'Your father.'" [Agreed upon]
Among the few precepts of Islam which Muslims still faithfully observe to the present day is the considerate treatment of mothers. The honor that Muslim mothers receive from their sons and daughters is exemplary. The intensely warm relations between Muslim mothers and their children and the deep respect with which Muslim men approach their mothers usually amaze Westerners. [Armstrong, op. cit., p. 8]
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One of the most important differences between the Qur'an and the Bible is their attitude towards female inheritance of the property of a deceased relative. The Biblical attitude has been succinctly described by Rabbi Epstein:
"The continuous and unbroken tradition since the Biblical days gives the female members of the household, wife and daughters, no right of succession to the family estate. In the more primitive scheme of succession, the female members of the family were considered part of the estate and as remote from the legal personality of an heir as the slave. Whereas by Mosaic enactment the daughters were admitted to succession in the event of no male issue remained, the wife was not recognized as heir even in such conditions." [Epstein, op. cit., p. 175]
Why were the female members of the family considered part of the family estate? Rabbi Epstein has the answer:
"They are owned - before marriage, by the father; after marriage, by the husband." [Ibid., p. 121]
The Biblical rules of inheritance are outlined in Numbers 27:1-11. A wife is given no share in her husband's estate, while he is her first heir, even before her sons. A daughter can inherit only if no male heirs exist. A mother is not an heir at all while the father is. Widows and daughters, in case male children remained, were at the mercy of the male heirs for provision. That is why widows and orphan girls were among the most destitute members of the Jewish society.
Christianity has followed suit for long time. Both the ecclesiastical and civil laws of Christendom barred daughters from sharing with their brothers in the father's patrimony. Besides, wives were deprived of any inheritance rights. These iniquitous laws survived till late in the last century. [Gage, op. cit., p. 142]
Among the pagan Arabs before Islam, inheritance rights were confined exclusively to the male relatives. The Qur'an abolished all these unjust customs and gave all the female relatives inheritance shares:
"From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large - a determinate share." [Al-Qur'an 4:7]
Muslim mothers, wives, daughters, and sisters had received inheritance rights thirteen hundred years before Europe recognized that these rights even existed. The division of inheritance is a vast subject with an enormous amount of details (4:7,11,12,176). The general rule is that the female share is half the male's except the cases in which the mother receives equal share to that of the father. This general rule if taken in isolation from other legislations concerning men and women may seem unfair. In order to understand the rationale behind this rule, one must take into account the fact that the financial obligations of men in Islam far exceed those of women (see the "Wife's property?" section). A bridegroom must provide his bride with a marriage gift. This gift becomes her exclusive property and remains so even if she is later divorced. The bride is under no obligation to present any gifts to her groom. Moreover, the Muslim husband is charged with the maintenance of his wife and children. The wife, on the other hand, is not obliged to help him in this regard. Her property and earnings are for her use alone except what she may voluntarily offer her husband. Besides, one has to realize that Islam vehemently advocates family life. It strongly encourages youth to get married, discourages divorce, and does not regard celibacy as a virtue.
Therefore, in a truly Islamic society, family life is the norm and single life is the rare exception. That is, almost all marriage-aged women and men are married in an Islamic society. In light of these facts, one would appreciate that Muslim men, in general, have greater financial burdens than Muslim women and thus inheritance rules are meant to offset this imbalance so that the society lives free of all gender or class wars. After a simple comparison between the financial rights and duties of Muslim women, one British Muslim woman has concluded that Islam has treated women not only fairly but generously. [B. Aisha Lemu and Fatima Heeren, Woman in Islam, London: Islamic Foundation, 1978, p. 23]
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The three religions have remarkable differences in their attitudes towards divorce. Christianity abhors divorce altogether. The New Testament unequivocally advocates the indissolubility of marriage. It is attributed to Jesus to have said:
"But I tell you that anyone who divorces his wife, except for marital unfaithfulness, causes her to become adulteress, and anyone who marries the divorced woman commits adultery." [Matthew 5:32]
This uncompromising ideal is, without a doubt, unrealistic. It assumes a state of moral perfection that human societies have never achieved. When a couple realizes that their married life is beyond repair, a ban on divorce will not do them any good. Forcing ill-mated couples to remain together against their wills is neither effective nor reasonable. No wonder the whole Christian world has been obliged to sanction divorce.
Judaism, on the other hand, allows divorce even without any cause. The Old Testament gives the husband the right to divorce his wife even if he just dislikes her:
"If a man marries a woman who becomes displeasing to him because he finds something indecent about her, and he writes her a certificate of divorce, gives it to her and sends her from his house, and if after she leaves his house she becomes the wife of another man, and her second husband dislikes her and writes her a certificate of divorce, gives it to her and sends her from his house, or if he dies, then her first husband, who divorced her, is not allowed to marry her again after she has been defiled." [Deut. 24:1-4]
The above verses have caused some considerable debate among Jewish scholars because of their disagreement over the interpretation of the words "displeasing", "indecency", and "dislikes" mentioned in the verses. The Talmud records their different opinions:
"The school of Shammai held that a man should not divorce his wife unless he has found her guilty of some sexual misconduct, while the school of Hillel say he may divorce her even if she has merely spoiled a dish for him. Rabbi Akiba says he may divorce her even if he simply finds another woman more beautiful than she." [Gittin 90a-b]
The New Testament follows the Shammaites opinion while Jewish law has followed the opinion of the Hillelites and R. Akiba. [Epstein, op. cit., p. 196]
Since the Hillelites view prevailed, it became the unbroken tradition of Jewish law to give the husband freedom to divorce his wife without any cause at all. The Old Testament not only gives the husband the right to divorce his "displeasing" wife, it considers divorcing a "bad wife" an obligation:
"A bad wife brings humiliation, downcast looks, and a wounded heart. Slack of hand and weak of knee is the man whose wife fails to make him happy. Woman is the origin of sin, and it is through her that we all die. Do not leave a leaky cistern to drip or allow a bad wife to say what she likes. If she does not accept your control, divorce her and send her away." [Ecclesiasticus 25:25]
The Talmud has recorded several specific actions by wives which obliged their husbands to divorce them:
"If she ate in the street, if she drank greedily in the street, if she suckled in the street, in every case Rabbi Meir says that she must leave her husband." [Git. 89a]
The Talmud has also made it mandatory to divorce a barren wife (who bore no children in a period of ten years):
"Our Rabbis taught: If a man took a wife and lived with her for ten years and she bore no child, he shall divorce her." [Yeb. 64a]
Wives, on the other hand, cannot initiate divorce under Jewish law. A Jewish wife, however, could claim the right to a divorce before a Jewish court provided that a strong reason exists. Very few grounds are provided for the wife to make a claim for a divorce. These grounds include: A husband with physical defects or skin disease, a husband not fulfilling his conjugal responsibilities, etc. The Court might support the wife's claim to a divorce but it cannot dissolve the marriage. Only the husband can dissolve the marriage by giving his wife a bill of divorce. The Court could scourge, fine, imprison, and excommunicate him to force him to deliver the necessary bill of divorce to his wife. However, if the husband is stubborn enough, he can refuse to grant his wife a divorce and keep her tied to him indefinitely. Worse still, he can desert her without granting her a divorce and leave her unmarried and undivorced. He can marry another woman or even live with any single woman out of wedlock and have children from her (these children are considered legitimate under Jewish law). The deserted wife, on the other hand, cannot marry any other man since she is still legally married and she cannot live with any other man because she will be considered an adulteress and her children from this union will be illegitimate for ten generations. A woman in such a position is called an agunah (chained woman, pl. agunot). [Swidler, op. cit., pp. 162-163]
In the United States today there are approximately 1000 to 1500 Jewish women who are agunot, while in Israel their number might be as high as 16000. Husbands may extort thousands of dollars from their trapped wives in exchange for a Jewish divorce. [The Toronto Star, Apr. 8, 1995]
Islam occupies the middle ground between Christianity and Judaism with respect to divorce. Marriage in Islam is a sanctified bond that should not be broken except for compelling reasons. Couples are instructed to pursue all possible remedies whenever their marriages are in danger. Divorce is not to be resorted to except when there is no other way out. In a nutshell, Islam recognizes divorce, yet it discourages it by all means. Let us focus on the recognition side first. Islam does recognize the right of both partners to end their matrimonial relationship. Islam gives the husband the right for talaq (divorce). Moreover, Islam, unlike Judaism, grants the wife the right to dissolve the marriage through what is known as khula' - if the husband dissolves the marriage by divorcing his wife, he cannot retrieve any of the marriage gifts he has given her. [Sabiq, op. cit., pp. 318-329. See also Muhammad al Ghazali, Qadaya al Mar'a bin al Taqalid al Rakida wal Wafida, Cairo: Dar al Shorooq, 4th edition, 1992, pp. 178-180]
The Qur'an explicitly prohibits the divorcing husbands from taking back their marriage gifts no matter how expensive or valuable these gifts might be:
"But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit of it back; Would you take it by slander and a manifest wrong?" [Al-Qur'an 4:20]
In the case of the wife choosing to end the marriage, she may return the marriage gifts to her husband. Returning the marriage gifts in this case is a fair compensation for the husband who is keen to keep his wife while she chooses to leave him. The Qur'an has instructed Muslim men not to take back any of the gifts they have given to their wives except in the case of the wife choosing to dissolve the marriage:
"It is not lawful for you (Men) to take back any of your gifts except when both parties 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." [Al-Qur'an 2:229]
Also, a woman came to the Prophet Muhammad seeking the dissolution of her marriage, she told the Prophet that she did not have any complaints against her husband's character or manners. Her only problem was that she honestly did not like him to the extent of not being able to live with him any longer. The Prophet asked her: "Would you give him his garden (the marriage gift he had given her) back?" she said: "Yes". The Prophet then instructed the man to take back his garden and accept the dissolution of the marriage. [Recorded by Imam al-Bukhari]
In some cases, A Muslim wife might be willing to keep her marriage but find herself obliged to claim for a divorce because of some compelling reasons such as: Cruelty of the husband, desertion without a reason, a husband not fulfilling his conjugal responsibilities, etc. In these cases the Muslim court dissolves the marriage. [Ibid., pp. 313-318]
In short, Islam has offered the Muslim woman some unequalled rights: she can end the marriage through khula' and she can sue for a divorce. A Muslim wife can never become chained by a recalcitrant husband. It was these rights that enticed Jewish women who lived in the early Islamic societies of the seventh century C.E. to seek to obtain bills of divorce from their Jewish husbands in Muslim courts. The Rabbis declared these bills null and void. In order to end this practice, the Rabbis gave new rights and privileges to Jewish women in an attempt to weaken the appeal of the Muslim courts. Jewish women living in Christian countries were not offered any similar privileges since the Roman law of divorce practiced there was no more attractive than the Jewish law. [David W. Amram, The Jewish Law of Divorce According to Bible and Talmud, Philadelphia: Edward Stern & CO., Inc., 1896, pp. 125-126]
Let us now focus our attention on how Islam discourages divorce. The Prophet of Islam told the believers that:
" ... among all the permitted acts, divorce is the most hateful to God." [Abu Dawud]
A Muslim man should not divorce his wife just because he dislikes her. The Qur'an instructs Muslim men to be kind to their wives even in cases of lukewarm emotions or feelings of dislike:
"Live with them (your wives) on a footing of kindness and equity. If you dislike them it may be that you dislike something in which Allah has placed a great deal of good." [Al-Qur'an 4:19]
Prophet Muhammad gave a similar instruction:
"A believing man must not hate a believing woman. If he dislikes one of her traits he will be pleased with another." [Muslim]
The Prophet has also emphasized that the best Muslims are those who are best to their wives:
"The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives." [Tirmidhi]
However, Islam is a practical religion and it does recognize that there are circumstances in which a marriage becomes on the verge of collapsing. In such cases, a mere advice of kindness or self restraint is no viable solution. So, what to do in order to save a marriage in these cases? The Qur'an offers some practical advice for the spouse (husband or wife) whose partner (wife or husband) is the wrongdoer. For the husband whose wife's ill-conduct is threatening the marriage, the Qur'an gives four types of advice as detailed in the following verses:
"As to those women on whose part you fear disloyalty and ill-conduct, (1) Admonish them, (2) refuse to share their beds, (3) beat them; but if they return to obedience seek not against them means of annoyance: For Allah is Most High, Great. (4) If you fear a break between them, appoint two arbiters, one from his family and the other from hers; If they wish for peace, Allah will cause their reconciliation." [Al-Qur'an 4:34-35]
The first three are to be tried first. If they fail, then the help of the families concerned should be sought. It has to be noted, in the light of the above verses, that beating the rebellious wife is a temporary measure that is resorted to as third in line in cases of extreme necessity in hopes that it might remedy the wrongdoing of the wife. If it does, the husband is not allowed by any means to continue any annoyance to the wife as explicitly mentioned in the verse. If it does not, the husband is still not allowed to use this measure any longer and the final avenue of the family-assisted reconciliation has to be explored.
The Prophet Muhammad has instructed Muslim husbands that they should not have recourse to these measures except in extreme cases such as open lewdness committed by the wife. Even in these cases the punishment should be slight and if the wife desists, the husband is not permitted to irritate her:
"In case they are guilty of open lewdness you may leave them alone in their beds and inflict slight punishment. If they are obedient to you, do not seek against them any means of annoyance." [Tirmidhi]
Furthermore, the Prophet of Islam has condemned any unjustifiable beating. Some Muslim wives complained to him that their husbands had beaten them. Hearing that, the Prophet categorically stated that:
"Those who do so (beat their wives) are not the best among you." [Abu Dawud]
It has to be remembered at this point that the Prophet has also said:
"The best of you is he who is best to his family, and I am the best among you to my family." [Tirmidhi]
The Prophet advised one Muslim woman, whose name was Fatimah bint Qais, not to marry a man because the man was known for beating women:
"I went to the Prophet and said: 'Abul Jahm and Mu'awiah have proposed to marry me.' The Prophet (by way of advice) said: 'As to Mu'awiah he is very poor and Abul Jahm is accustomed to beating women.'" [Muslim]
It has to be noted that the Talmud sanctions wife beating as chastisement for the purpose of discipline. [Epstein, op. cit., p. 219]
The husband is not restricted to the extreme cases such as those of open lewdness. He is allowed to beat his wife even if she just refuses to do her house work. Moreover, he is not limited only to the use of light punishment. He is permitted to break his wife's stubbornness by the lash or by starving her. [Ibid, pp 156-157]
For the wife whose husband's ill-conduct is the cause for the marriage's near collapse, the Qur'an offers the following advice:
"If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best." [Al-Qur'an 4:128]
In this case, the wife is advised to seek reconciliation with her husband (with or without family assistance). It is notable that the Qur'an is not advising the wife to resort to the two measures of abstention from sex and beating. The reason for this disparity might be to protect the wife from a violent physical reaction by her already misbehaving husband. Such a violent physical reaction will do both the wife and the marriage more harm than good. Some Muslim scholars have suggested that the court can apply these measures against the husband on the wife's behalf. That is, the court first admonishes the rebellious husband, then forbids him his wife's bed, and finally executes a symbolic beating. [Muhammad Abu Zahra, Usbu al Fiqh al Islami, Cairo: al Majlis al A'la li Ri'ayat al Funun, 1963, p. 66]
To sum up, Islam offers Muslim married couples much viable advice to save their marriages in cases of trouble and tension. If one of the partners is jeopardizing the matrimonial relationship, the other partner is advised by the Qur'an to do whatever possible and effective in order to save this sacred bond. If all the measures fail, Islam allows the partners to separate peacefully and amicably.
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