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By Jamal Badawi
1. The term "equity" is used instead of the more common expression " equality, " which is sometimes misunderstood to mean absolute equality in each and every detailed item of comparison rather than overall equality. Equity is used here to mean justice and overall equality in the totality of rights and responsibilities of both genders and allows for the possibility of variations in specific items within the overall balance and equality. It is analogous to two persons possessing diverse currencies amounting, for each person, to the equivalent of US $1000. While each of the two persons may possess more of one currency than the other, the total value still comes to US $1000 in each case. It should be added that from an Islamic perspective, the roles of men and women are complementary and cooperative rather than competitive.
2. The Quran is universally accepted by Muslims as the word of Allah, or "God," dictated verbatim to Prophet Muhammad (P) through Angel Gabriel. It is divided into 114 units, each called a surah. The Quran is the highest authority for information on Islam. Sunnah refers to the words, actions and confirmations (consent) of Prophet Muhammad (P) in matters pertaining to the meaning and practice of Islam. Another common term that some authorities consider to be equivalent to Sunnah is hadith (plural ahadith), which literally means "sayings." The letter (P) is an abbreviation of "peace be upon him," a form of respect used by Muslims whenever the name of any prophet is mentioned.
3. In both Quranic references, 15:28 and 32:7, the Arabic terms used are basharan and al-insaan. Both mean a human being or a person. English translations do not usually convey this meaning and commonly use the terms "man" or the pronoun "him" to refer to "person," which is actually without a particular gender identification. Equally erroneous is the common translation of "bani-Adam" as "sons of Adam" or "men" instead of the more accurate translation, "children of Adam. "
4. The explanatory "both" was added whenever the Quranic Arabic text addresses Adam and Eve, as in "lahoma, akala, akhrajahoma." This was done in order to avoid misinterpreting the English term "you" to mean an address to a singular person. For the Biblical version of the story and its implications, see The Bible, RSV, American Bible Society, N.Y.,1952, Genesis, chs. 2-3, especially 3:6, 12, 16-17; Leviticus 12:1-7 and 15:19-30, and Timothy 2:11-14. It may be added here that in one surah in the Quran it is Adam, not Eve, who is especially chastised for eating from the "forbidden tree," even through Eve is not regarded as totally blameless:
We (Allah) had already, beforehand taken the covenant of Adam, but he forgot: and We found no firm resolve on his part. (Qur'an 20:1 15)
After relating the story of temptation and the partaking of the "forbidden tree," the Quran states,.
Thus did Adam disobey his Lord, and allow himself to be seduced (by Satan). (Qur'an 20:121)
5. Pregnancy and childbirth are not the only feminine functions that are treated with respect and compassion. The same applies to menstruation. In consideration of the health of husband and wife and to prevent discomfort to the wife, sexual intercourse is prohibited during menstruation. This is what is meant by the Quranic directive,
They ask you [O Muhammad] concerning menstruation. Say: It is a hurt and pollution. So keep away from women (i.e. do not engage in intercourse with them) until they are clean. . . (Quran 2:222)
Two common misunderstandings of this passage need to be cleared:
a. The description of "pollution" does not apply to women but to menstrual blood. Not only is it unhealthy to engage in intercourse during this period, but it may also hurt the woman due to the irritation that may be caused by such an activity.
b. The restriction here is limited to intercourse, not to any other forms of permissible sexual intimacy, as is clearly explained in hadith. Keeping away from women does not mean "do not touch them, sit or eat with them" or even " do not be intimate with them. " Prophet Muhammad (P) used to rest his head on A'isha's lap during her menses and recite the Quran, perform his prayers very close to her, let her comb his hair, drink from the same cup she drank from, and allow her to bring things he needed from the mosque. Numerous ahadith to this effect are narrated by Bukhari and Muslim. See Abu-Shuqqah, Tahrir Al-Mar'ah Al-M uslimah Fi 'Asr Al-Risalah (in Arabic), Dar Al-Qalam, Kuwait, vol 6, pp. 107-109.
6. A common question raised in the West is whether a Muslim woman can be ordained as a minister, as more liberal churches allow. It should be remembered that there is no "church" or "priesthood" in Islam. The question of "ordination" therefore does not arise. However, most of the common "priestly" functions, such as religious education and spiritual and social counseling, are not forbidden to Muslim women in a proper Islamic context. Woman, however, may not lead prayers (except for other women), as Muslim prayers involve prostrations and body contact. Since the prayer leader is supposed to stand in front of the congregation and may move forward in the middle of crowded rows, it would be both inappropriate Islamically and uncomfortable for a female to be in such a position and prostrate, hands, knees and forehead on the ground, with rows of men behind her. A Muslim female may be an Islamic scholar. In the history of Islam, there were many examples of female scholars who taught both genders.
7. This contrasts with the legal provisions in Europe, which did not recognize that right until nearly thirteen centuries after Islam. In Britain, "by a series of acts starting with the Married Women's Property Act in 1870, amended in 1882 and 1887, married women achieved the right to own property and to enter into contracts on a par with spinsters, widows and divorcees." See Encyclopedia Britannica, 1968, vol. 23, p. 624.
8. This period is usually three months. If the wife is pregnant, it extends until childbirth. In the case of widows, the waiting period is 130 days. In case of divorce before a marriage is consummated, there is no required waiting period and the woman may remarry immediately after divorce (Qur'an 33:49).
14. In the event of a family dispute, the Quran exhorts the husband to treat his wife kindly and not overlook her positive aspects (see Quran 4:19). If the problem relates to the wife's behavior, her husband may exhort her and appeal for reason. In most cases, this measure is likely to be sufficient. In cases where the problem continues, the husband may express his displeasure in another peaceful manner, by sleeping in a separate bed from hers. There are cases, however, in which a wife persists in deliberate mistreatment and expresses contempt of her husband and disregard for her marital obligations. Instead of divorce, the husband may resort to another measure that may save the marriage, at least in some cases. Such a measure is more accurately described as a gentle tap on the body, but never on the face, making it more of a symbolic measure than a punitive one. Following is the related Quranic text:
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 you fear disloyalty and ill-conduct, admonish them (first), (next) do not share their beds, (and last) beat (tap) them (lightIy); but if they return to obedience, seek not against them means (of annoyance): for Allah is Most High, Great (above you all).(Quran 4:34)
Even here, that maximum measure is limited by the following:
a. It must be seen as a rare exception to the repeated; exhortation of mutual respect, kindness and good treatment discussed earlier. Based on the Quran and hadith, this measure may be used in the cases of lewdness on the part of the wife or extreme refraction and rejection of the husband's reasonable requests on a consistent basis (nushuz). Even then, other measures, such as exhortation, should be tried first.
b. As defined by hadith, it is not permissible to strike anyone's face, cause any bodily harm or even be harsh. What the hadith qualified as dharban ghayra mabarrih, or light striking, was interpreted by early jurists as a (symbolic) use of the miswak (a small natural toothbrush)! They further qualified permissible "striking" as that which leaves no mark on the body. It is interesting that this latter fourteen-centuries-old qualifier is the criterion used in contemporary American law to separate a light and harmless tap or strike from "abuse" in the legal sense. This makes it clear that even this extreme, last resort, and "lesser of the two evils" measure that may save a marriage does not meet the definitions of "physical abuse," "family violence," or "wife battering" in the 20th century law in liberal democracies, where such extremes are so commonplace that they are seen as national concerns.
c. The permissibility of such symbolic expression of the seriousness of continued refraction does not imply its desirability. In several ahadith, Prophet Muhammad (P) discouraged this measure. Among his sayings are the following: "Do not beat the female servants of Allah;" "Some (women) visited my family complaining about their husbands (beating them). These (husbands) are not the best of you;" and "[Is it not a shame that] one of you beats his wife like [an unscrupulous person] beats a slave and maybe he sleeps with her at the end of the day." (See Riyodh Al-Salibeen,op.cit, p.p. 137-140). In another hadith the Prophet (P) said,
How does anyone of you beat his wife as he beats the stallion camel and then he may embrace (sleep with) her? (Sahih Al-Bukhari, op. cit., vol. 8, hadith 68, pp. 42-43).
d. True following of the Sunnah is to follow the example of Prophet Muhammad (P), who never resorted to that measure, regardless of the circumstances.
e. Islamic teachings are universal in nature. They respond to the needs and circumstances of diverse times, cultures and circumstances. Some measures may work in some cases and cultures or with certain persons but may not be effective in others. By definition, a "permissible" act is neither required, encouraged nor forbidden. In fact, it may be better to spell out the extent of permissibility, such as in the issue at hand, rather than leaving it unrestricted and unqualified, or ignoring it all together. In the absence of strict qualifiers, persons may interpret the matter in their own way, which can lead to excesses and real abuse.
f. Any excess, cruelty, family violence, or abuse committed by any "Muslim" can never be traced, honestly, to any revelatory text (Quran or hadith). Such excesses and violations are to be blamed on the person(s) himself, as it shows that they are paying lip service to Islamic teachings and injunctions and failing to follow the true Sunnah of the Prophet (P).
15. Khul', or divestiture, is an arrangement whereby the wife may offer some financial compensation to her husband (usually by returning his marital gift to him) in return for terminating the marital relationship. It is provided for in cases in which there is "no fault" on the part of the husband (e.g. failure to support his wife, impotence or abuse) and the wife is the one who initiates marriage dissolution. In such cases, it is only fair that she should return to her husband whatever he gave or paid her with the view of permanent and lasting marital commitment. In case of dispute over the amount of compensation, a judge may examine the case and determine the fair amount, which is normally the marital gift (mahr) previously paid by the husband. See Sayyid Sabiq's Fiqh-us-Sunnah, Dar Al-Kitab Al-Arabi, Beirut~ Lebanon, 1969, pp. 294-308.
16. For more details on marriage dissolution and custody of children, see H. Abd al-Ati, Family Structure in Islam, American Trust Publications, Indianapolis, In, 1977, pp. 217-249; Sayyid Sabiq, Figh-us-Sunnah, ibid., vol. 2, p.349.
17. For more details on the issue of polygyny, see Badawi, Jamal. A, Polygyny In Islamic Law, American Trust Publications, Indianapolis, IN; also Islamic Teachings (audio series), Islamic Information Foundation, Halifax, Canada, 1982, album 4. The term polygyny rather than polygamy is used since polygamy means either polygyny (more than one wife of the same husband) or polyandry (more than one husband of the same wife). Only polygyny is permissible in Islam.
18. See, for example, Westermarck, Edward A., The History of Human Marriage, (5th Edition Rewritten), Macmillan and Co., London, 1925, vol. 3, pp. 42-43; also Encyclopedia Biblica (Rev. T.K. Cheney and S. Black, Editiors), Macmillan, London, 1925, vol 3, p. 2946.
19. Matn Al-Bukhari, op. cit., vol. 4, kitab Al-Adab, p.! 47. Translated by the author. For a similar English translation of this hadith, see Sahih Al-Bukhari, translated by M.M. Khan, Maktabat Al-Riyadh Al-Hadeethah, Riyadh, Saudi Arabia, 1982, vol. 8, "The Book of Al-Adab," hadith 2, p.2.
23. An earlier passage in the Quran (4:15-16) appears to prescribe a different punishment for lewdness in the cases of females and males (confinement at the home for the guilty female and unspecified punishment for that guilty male, without requiring his confinement at home). Al-Razi suggests that since the male was the breadwinner of the family, confining him at home would thus punish his innocent dependents. A female, on the other hand, is always guaranteed support, making her confinement a personal punishment only for her. This provision, however, was a transitory one pending the next stage, when "Allah [would] ordain for them some (other) way." That other way was equal punishment for both males and females, as explained in the Quran (24:2), which is flogging each of them with one hundred stripes, provided that four witnesses testify unanimously that they saw everything in graphic detail. Such a requirement is practically impossible, indicating that the severity of the punishment is a statement on sexual morality in an Islamic society and a deterrent from flagrant public indecency (see Al-Sabouni, M.A., Salwat Al-Tafaseer (in Arabic), Dar Al-Qur'an Al-Kareem, Beirut, Lebanon, 1980, vol. 1, p.266). In the case of rape, however, only the rapist is to be punished, while the victim goes free. See A. Owdah, A1-Thashree' Al-Jina'i Fi Al-Islam (in Arabic), Dar Al-Kitab Al-Arabi, Beirut, Lebanon, n.d., vol. 2, p. 364; Ibn Anas, Maik, Muatta'AI-Imam Malik (in Arabic). Dar Al-Qalam, Beruit, Lebanon, 1st ed.., n.d., p. 245; and Sabiq, S., Fiqh-us-Sunnah, op. cit, vol. 2, pp. 427-428.
27. Narrated by Abu-Dawood, also by Ibn Khuzaimah, who rated it as "sound" or "authentic." This is why some notable jurists, such as Al-Mozni, Abu Thawr, and Al-Tabari, are of the opinion that a woman may lead (both genders) in taraweeh prayers, (special prayers during the month of Ramadan), if no memorizer of the Quran is present (see, Al-Shawkani, M., Nayl Al-Awtar (in Arabic), Dar Ajeel, Beirut, Lebanon 1973, vol. 3, pp. 201-202). Some of the Hanbali jurists, following the lead of Ibn-Hanbal, agree with the same opinion. Ibn Taymiyah stated that "it is permissible for an illiterate man to be led in prayers by a woman who is reciter of the Quran in qiyam (prayers) in Ramadan, according to the more commonly known opinion of Ahmad (Ibn Hanbal)." See Ibn Taymiyah, Ar-Radd 'Ala Maratib Al-Iimoa' (in Arabic), Dar Al-Afaq Al-Jadeedah, Beirut, Lebanon, 1980, p. 208, quoted in Abu Shuqqah, A., Tahrir Al-Mar'ah Al-Muslimah, op. cit, vol. 3, pp. 31 and 60. The same opinion was reported by Ibn Qudamah in Al-Mughni, who added that it is permissible (for women) to lead men in taraweeh prayers and stand behind them. See Abu-Shuqqah, ibid. p. 31.
28.Imam Al-Haramain Al-Jawayni states: "They [scholars] are unanimous that women should not be an imam [head of state], even though they differed about her being a judge in matters where her witness is accepted." The failure of Al-Farra to include male gender as a required condition for leadership of the state indicates that the "unanimity" spoken of by Imam Al-Haramain and others is not such a complete " unanimity. " Furthermore, Al-Tabari does not even limit the categories in which a woman may act as a judge. See Al-Qasimi, op. cit, p. 342. Among contemporary scholars who are of the opinion that a woman may be appointed to any state position is M.I. Darwazah, whose main argument can be summarized as follows:
1. The Quran provides for the participation of women in the state, society, and all social and political activities, except for few exceptions related to their gender particularity. Such allowed activities include parliamentary life and representation of all sectors of society; these activities include the participation in the making of laws and regulations and the supervision of public affairs.
2. To oppose this on the grounds that Muslim women are "ignorant and unmindful" overlooks the fact that the great majority of men in Muslim countries are also "ignorant and unmindful." Yet this is not a reason to deprive them of their political rights.
3. Recognition of the political rights of women does not necessarily mean belittling or undermining their crucial functions as homemakers and mothers.
4. The fact that Muslim women did not participate widely in the political life of the community in the earlier times in Muslim history is explained by the nature of social life at that time. This does not in itself negate the rights enshrined in the Quran and Sunnah. See Al Qasimi, ibid., pp. 342-343.
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