MARRIAGE AND DIVORCE

2.The female has the right to accept or reject marriage proposals. Her consent is a prerequisite to the validity of the marital contract, according to the Prophet's teaching. It follows that if an "arranged marriage" means the marrying of a female without her consent, then such a marriage may be annulled if the female so wishes:


Ibn Abbas reported that a girl came to the Messenger of Allah, and she reported that her father had forced her to marry without her consent. The Messenger of God gave her the choice...(between accepting the marriage or invalidating it) (Ahmad, Hadith no. 2469). another version of the report states that "the girl said: 'Actually, I accept this marriage, but I wanted to let women know that parents have no right to force a husband on them.'" (Ibn-Majah)

3. The husband is responsible for the maintenance, protection and overall leadership (qiwamah) of the family, within the framework of consultation and kindness. The mutuality and complementary of husband and wife does not mean "subservience" by either party to the other. Prophet Muhammad (P) helped with household chores although the responsibilities he bore and the issues he faced in his community were immense.


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 you decide on a foster-mother for your offspring, there is no blame on you, provided you pay (the mother) what you offered on equitable terms. But fear Allah and know that Allah sees well what you do. (Qur'an 2:233)
Prophet Muhmmad (P) instructed Muslims regarding women, "I commend you to be kind to women." He said also, "the best of you is the best to his family (wife)." The Qur'an urges husbands to be kind and considerate to their wives, even if a wife falls out of favor with her husband or disinclination for her arises within him. It also outlawed the pre-Islamic Arabian practice whereby the stepson of the deceased father was allowed to take possession of his fathers widow(s) (inherited them) as if they were part of the estate of the deceased:


O you who believe! You are forbidden to inherit women against their will. Nor should you treat them with harshness, that you may take away part of the martial gift you have given them, except when they have been guilty of open lewdness; on the contrary, live with them on a footing of kindness and equity. If you take a dislike to them, it may be that you dislike a thing through which Allah brings about a great deal of good. (Qur'an 4:19)
Should maritual disputes arise, the Quran encourages couples to resolve them privately in a spirit of fairness and probity. UNDER NO CIRCUMSTANCES DOES THE QUR'AN ENCOURAGE, ALLOW OR CONDONE FAMILY VIOLENCE OF PHYSICAL ABUSE. In extreme cases, and whenever greater harm, such as divorce, is a likely option, it allows for a husband to administer a gentle pat to his wife that causes no physical harm to the body nor leaves any sort of mark. It may serve, in some cases, to bring to the wife's attention the seriousness of her continued unreasonable behavior (refraction, and may be resorted to only after exhausting other steps discussed in endnote 14. If the mild measure is not likely to prevent a marriage from collapsing, as last measure, it should not be resorted to. Indeed the Qur'an outlines an enlightened step and a wise approach for the husband and wife to resolve persistent conflict in their marital life: In the event that dispute cannot be resolved equitably between husband and wife, the Qur'an prescribes mediation between the parties through family intervention on behalf of both spouses.

5. Divorce is a last resort, permissible but not encouraged, for the Qur'an esteems the preservation of faith and the individuals right--male and female alike--to felicity. Forms of marriage dissolution include an enactment based upon mutual agreement, the husband's initiative, the wife's initiative (if part of her marital contract), the court's decision on a wife's initiative (for a legitimate reason),and the wife's initiative without a "cause," provided that she returns her marital gift to her husband (khul', or divestiture).

6. Priority for the custody of young children (up to the age of about seven) is given to the mother. A child later may choose the mother or father as his or her custodian. Custody questions are to be settled in a manner that balances the interests of both parents and the well-being of the child.



POLYGYNY
1.Associating polygyny with Islam , as if it were introduced by it or is the norm according to its teachings, is one of the most persistent myths perpetuated in Western literature and media. No text in the Qur'an or Sunnah explicitly specifies either monogamy or polygyny as the norm, although demographic data indicates strongly that monogamy is the norm and polygyny the exception.

In almost all countries and on the global level, the numbers of men and women are almost even, with women typically slightly outnumbering men. As such, it is a practical impossibility to regard polygyny as the norm, since it assumes a demographic structure of at least two-thirds female and one third males (or eighty percent females and twenty percent males, if four wives per male is the norm!) No Qur'anic "norm" is based on an impossible assumption. The Qur'an was revealed by Allah, Who is the creator of males and females. Allah created about equal numbers of human males and females. This is His law in the physical world. It follows that His "norms" in the social realm must be consistent with His norms in the physical realm. Only monogamy fits as a universal norm, with polygamy as an exception.

2. Islam did not outlaw polygyny, as did many other peoples and religious communities; rather, it regulated and restricted it. It is neither required nor encouraged, but simply permitted and did not outlaw. Edward Westermarck gives numerous examples of the sanctioning of polygyny among Jews, Christians and others.

3. The only passage in the Qur'an (4:3) that explicitly addresses polygyny and restricts its practice, in terms of the number of wives permitted and the requirement of justice between them on the part of the husband, was revealed after the battle of Uhud , in which dozens of Muslims were martyred, leaving behind widows and orphans. This seems to indicate that the intent of its continued permissibility, at least in part, is to deal with individual and collective contingencies that may arise from time to time (e. g., imbalances between the number of males and females, created by war). This provides a moral, practical and humane solution to the problems of widows and orphans, who would otherwise surely be more vulnerable in the absence of a husband and father figure in terms of economics, companionship, proper child rearing and other needs.


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...(Qur'an 4:3)
4. It is critically important to point out with regard to polygyny that all parties involved have options. Men may choose to remain monogamous. A proposed second wife may reject the marriage proposal if she does not wish to be party to a polygynous marriage. A prospective first wife may include in her marital contract a condition that her prospective husband shall practice monogamy. If this condition is mutually accepted, it becomes binding on the husband. Should he later violate this condition, his first wife will be entitled to seek divorce with all the financial rights connected with it. If such a condition was not included in the marital contract, and if the husband marries a second wife, the first wife my seek khul' (divestiture), explained in endnote 15.

While the Qur'an allowed polygyny, it did not allow polyandry (a woman's marriage to multiple husbands). Anthropologically speaking, polyandry is quite rare. Its practice raises thorny problems related to the lineal identify of children and the law of inheritance, both important issues in Islamic law.

In the case of polygyny, the lineal identities of children are not confused. They all have the same father and each of them knows his or her mother. In the case of polyandry, however, only the mother is known for sure. The father could be any of the "husbands" of the same wife. In addiction to lineal identity problems, polyandry raises problems relating to inheritance law. For example, which of the children inherits of shares in the estate of a deceased "probable" father?



AS A MOTHER
1. The Qur'an elevates kindness to parents (especially mothers) to a status second only to the worship of Allah.


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. (Qur'an 17:23)
And We have enjoined on every human being (to be good) to his/her parents: in travail upon travail did his/her mother bear him/her and in years twain was his/her weaning: (hear the command) "Show gratitude to me and to your parents: to Me is (your final) destiny." (Qur'an 31:14)

2. Naturally, the Prophet specified this behavior for his followers, rendering to mothers an unequaled status in human relationships.


A man came to Prophet Muhammad (P) asking, "O Messenger of Allah, who among the people is the most worthy of my good companionship?" The Prophet (P) said, "Your mother". The man said, "Then, who is next?" The Prophet (P) said, "Your mother". The man said, "Then, who is next?" The Prophet (P) said, "Your mother". The man further asked, "Then who is next?" Only then did the Prophet (P) say, "Your father." (Al-Bukhari)

AS A SISTER IN FAITH (GENERALLY)
1. According to Prophet Muhammad's (P) saying, "Women are but sisters shaqa'iq, or twin halves) of men." this hadith is a profound statement that directly relates to the issue of human equality between the genders. If the first meaning of shaqa'iq is adopted, it means that a male is worth one half (of society), with the female worth the other half. Can "one half" be better or bigger than the other half? Is there a more simple but profound physical image of equality? if the second meaning, "sisters," is adopted, it implies the same. The term "sister" is different from "slave" or "master."

2. Prophet Muhammad (P) taught kindness care and respect toward women in general ("I commend you to be kind to women"). It is significant that such instruction of the Prophet (P) was among his final instructions and reminders given in the "farewell pilgramage" address given shortly before his passing away.


MODESTY AND SOCIAL INTERACTION
1. There exists a gap between the normative behavior regarding women outlined in the Qur'an and the prevalent reality among Muslims, both as societies in the Muslim world and as communities in the west. Their diverse cultural practices reflect both ends of the continuum -- the liberal West and the ultra-restrictive regions of the Muslim world. Some Muslims emulate non-Islamic cultures and adopt their modes of dress, unrestricted mixing, and behavior, which influence them and endanger their families' Islamic integrity and strength. On the other hand, in some Muslim cultures undue and excessive restrictions for women, if not their total seclusion, is believed to be the ideal. Both extremes seem to contradict the normative teachings of Islam and are consistent with the virtuous yet participate nature of both men and women in society at the time of the Prophet Muhammad (P).

2. The parameters of proper modesty for males and females (dress and behavior) are based on revelatory sources (the Qur'an and authentic Sunnah) and, as such, the regarded by believing men and women as divinely-based guidelines with legitimate aims and divine wisdom behind them. They are not male-imposed or socially imposed restrictions.

3. The near or total seclusion of women is alien to the prophetic period. Interperative problems in justifying seclusion reflect, in part, cultural influences and circumstances in different Muslim countries. There is ample evidence in authentic (sound) hadith supporting this thesis. Women at the Prophet's (P) time and after him participated with men in acts of worship, such as prayers and pilgrimage, in learning and teaching, in the market place, in the discussion of public issues (political life) and in the battlefield when necessary.



THE LEGAL AND POLITICAL ASPECT
EQUALITY BEFORE THE LAW

1. Both genders are entitled to equality before the law and courts of law. Justice is genderless. According to the Qur'an, men and women receive the same punishment for crimes such as theft (5:38),fornication (24:2), murder and injury (5:45). Women do possess and independent legal entity in financial and other matters. One legal issue is widely misunderstood: testimony. A common but erroneous belief is that as a "rule," the worth of women's testimony is one half of men's testimony. A survey of all passages in the Qur'an relating to testimony does not substantiate this claimed "rule."


TESTIMONY

Most Qur'anic references to testimony (witness) do not make any reference to gender. Some references fully equate the testimony of males and females.


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; And the fifth (oath) (should be) that they solemnly invoke the curse of Allah on themselves if they tell a lie. But if would avert the punishment from the wife if she bears witness four times (with an oath) by Allah that (her husband) is telling a like; And the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth. (Qur'an 24:6-9)
One reference in the Qur'an distinguishes between the witness of a male and a female. It is useful to quote this reference and explain it in its own context and in the context of other Qur'anic references to testimony:


O you who believe! When you deal with each other in transactions involving future obligations in a fixed period of time, reduce them to writing. Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as Allah has taught him, so let him write. Let him who incurs the liability dictate, but let him fear his Lord, Allah, and not diminish aught of what he owes. If the party liable is mentally deficient, or weak, or unable himself to dictate, let his guardian dictate faithfully. And get two witnesses out of your own men, and if there are not two men, then a man and two women, such as you choose for witnesses so that if one of them errs, the other can remind her. The witnesses should not refuse when they are called on (for evidence). Disdain not to reduce to writing (your contract) for a future period, whether it be small or big: it is more just in the sight of Allah, more suitable as evidence, and more convenient to prevent doubts among yourselves, but if it be a transaction with you carry out on the spot among yourselves, there is not blame on you if you reduce it not to writing, But take witnesses whenever you make a commercial contract; and let neither scribe nor witness suffer harm. If you do (such harm), it would be wickedness in you. So fear Allah; for it is Allah that teaches you. And Allah is well acquainted with all things. (Qur'an 2:282)
A few comments on this text are essential in order to prevent common misinterpretations:

a. It cannot be used as an argument that there is a general rule in the Qur'an that the worth of a female's witness is only half the male's. This presumed "rule" is voided by the above reference (24:6-9), which explicitly equates the testimony of both genders on the issue at hand.

b. The context of this passage (verse, or ayah) relates to testimony on financial transactions, which are often complex and laden with business jargon. The passage does not make a blanket generalization that would otherwise contradict 24:6-9, cited above.

c. The reason for variations in the number of male and female witnesses required is given in the same passage. No reference is made to the inferiority or superiority of one gender's witness or the other's. The only reason given is to corroborate the female's witness and prevent unintended errors in the perception of the business deal. The Arabic term used in this passage, tadhilla, literally means "loses the way," "gets confused," or "errs." But are females the only gender that may err and need corroboration of their testimony? Definitely not, and that is why the general rule of testimony in Islamic law is to have two witnesses, even when they are both male.

One possible interpretation of the requirements related to this particular type of testimony is that in numerous societies, past and present, women generally may not be heavily involved with and experienced in business transactions. As such, they may not be completely cognizant of what is involved. Therefore, corroboration of a woman's testimony by another woman who may be present ascertains accuracy and, hence, justice. It would be unreasonable to interpret this requirement as a reflection on the worth of women's testimony, as it is the ONLY exception discerned from the text of the Qur'an . This may be one reason why a great scholar like Al-Tabari could not find any evidence from any primary text (Qur'an or hadith) to exclude women from something more important than testimony: being herself a judge who hears and evaluates the testimony of others.

d. It must be added that unlike pure acts of worship, which must be observed exactly as taught by the prophet (P), testimony is a means to an end, ascertaining justice as a major objective of Islamic law. Therefore, it is the duty of a fair judge to be guided by this objective when assessing the worth and credibility of a given testimony, regardless of the gender of the witness. A witness of a female graduate of a business school is certainly far more worthy than the witness of an illiterate person with no business education or experience.


PARTICIPATION IN SOCIAL AND POLITICAL LIFE

2. The general rule in social and political life is participation and collaboration of males and females in public affairs.

The believers, men and women, are protectors, one of another: they enjoin what is just and forbid what is evil: they observe regular prayers, practice regular charity, and obey Allah and His apostle. On them will Allah pour His mercy: for Allah is Exalted in power, Wise. (Qur'an 9:7)

3. There is sufficient historical evidence of participation by Muslim women in the choice of rulers, in public issues, in lawmaking, in a administrative positions, in scholarship and teaching, and even in the battlefield. Such involvement in social and political affairs was conducted without the participants' losing sight of the complementary priorities of both genders and without violating Islamic guidelines of modesty and virtue.


WOMEN IN LEADERSHIP POSITIONS

There is no text in the Qur'an or Sunnah that precludes women from any position of leadership, except in leading prayer (however, women may lead other women in prayer),due to the format of prayer, as explained earlier. There are exceptions even to this general rule, as explained later in this chapter. Another common question relates to the eligibility of Muslim women to be heads of state.

There is no evidence from the Qur'an to preclude women from headship of state. Some may argue that according to the Qur'an (4:34), men are the protectors and maintainers of women. Such a leadership position (responsibility, or qiwamah) for men in the family unit implies their exclusive leadership in political life as well. This analogy ,however, is far from conclusive. Qiwamah deals with the particularity of family life and the need for financial arrangements, role differentiation, and complementary of the roles of husband and wife. These particularities are not necessarily the same as the headship of state, even if some elements may be similar. Therefore, a Qur'anically based argument to exclude women from the headship of state is neither sound nor convincing. Most arguments for exclusion, however, are based on the following hadith, narrated by Abu bakrah:

During the battle of Al-Jamal (in which A'isha, the Prophet's widow, led an army in opposition to Ali, the fourth Caliph), Allah benefited me with a word. When the Prophet heard the news that the people of Persia had made the daughter of Khorsrau their queen (ruler), he said, "Never will such a nation succeed as makes a woman their ruler."

While this hadith has been commonly interpreted to exclude women from the headship of state, other scholars do not agree with that interpretation. The Persian rulers at the time of the prophet (P) showed enmity toward the Prophet (P) and toward his messenger to them. The Prophet's response to this news may have been a statement about the impending doom of that unjust empire, which did not take place later, and not about the issue of gender as it relates headship of the state in itself. Z. Al-Qasimi argues that one of the rules of interpretation known to Muslim scholars is that there are cases in which the determing factor in interpretation is the specificity of the occasion (of the hadith and not the generality of its wording. Even if the generality of its wording is to be accepted, that does not necessarily mean that a general rule is applicable, CATEGORICALLY, to any situation. As such, the hadith is not conclusive evidence of categorical exclusion.

Some argue that since women are excluded from leading the prayer for a mixed gathering of men and women, they should be excluded from leading the state as well. This argument, however overlooks two issues: (1) Leading the prayer is a purely religious act and, given the format of Muslim prayer and its nature, it is not suitable for women to lead a mixed congregation. This point was discussed earlier. Leading the state, however, is not a "purely" religious act but a religiously based political act. Exclusion of women in one instance does not necessarily imply their exclusion in another.

(2) Even the matter of whether women may lead prayer is not without exception. Prophet Muhammad (P) asked a woman by the name of Umm Waraqah to lead her household in prayer, which included a young girl, a young boy, and a mu'azzin (caller to prayer--who is always male).

Al-Qasimi notes that the famous jurist, Abu-Ya'la al-Farra' (known for his writings on the political system of Islam), did not include among the qualifications of the imam (head of state) being a male. It should be noted, however, that the head of state in Islam is not a ceremonial head. He leads public prayers on some occasions and constantly travels and negotiates with officials of other states (who generally are men). He may be involved in confidential meetings with them. Such heavy and secluded involvement of women wth men and its necessary format may not be consistent with Islamic guidelines related to the proper interaction between the genders and to the priority of feminine fuctions at home and their value to society.

Furthermore, the conceptual and philosophical background of the critics of this limited exclusion is that of individualism, ego satisfaction, and the rejection of the validity of divine guidance in favor of other man-made philosophies, values or "isms." The ultimate objective of a Muslim man or woman, however, is the selflessly serve Allah and the Ummah in whatever appropriate capacity. In the incident of Al-Hudaybiyah, Umm Salamah, a wife of the Prophet (P), played a role equal to what we would refer to today as "chief advisor of the head of state."



THE IDEAL AND THE REALITY
ISLAMIC REFORMATION AND RENEWAL

This work focuses on the normative , or ideal, relating to gender equity in Islam. This ideal may serve as a yardstick against which the reality of present-day Muslims should be evaluated. It serves also as the objective toward which any Islamic reformation and renewal should be directed, reformation of wrong practices and renewal of adherence to the Islamic ideal.

When assessing the realities of Muslims, two extremes should be avoided:

1. Justifying injustices done to most Muslim women by religiously flavored cultural arguments. Most problematic in that extreme is the subtle assumption of the "correctness" of traditional cultural practices and attitudes, followed by a selective search for endorsement in the primary sources of Islam

2. Failing to see numerous positive aspects in Muslim societies, such as family stability and cohesiveness, the respect and adoration of mothers, and the sense of self-fulfillment of women who are not frequently seen in public; in the meantime, painting a stereotypical picture of Muslim women as ignorant, submissive, oppressed and almost totally enslaved by women-hating chauvinist men. The focus on injustices and on magnifying them is sometimes partly based on questionable interpretations of outsiders' observations. For example, the smaller percentage of career women in many Muslim societies is interpreted in a Western framework and is seen as an indication of Muslims' oppressing women and depriving them of job opportunities. Little attention, if any, is given to the personal choices of Muslim women and their concepts of family happiness, which may or may not be the same choices or concepts of their non-Muslim sisters.


RELATING TO INTENRATIONAL BODIES AND MOVEMENTS
Once an objective and fair assessment of Muslim practices is made, it should be compared with the normative teachings of Islam. There are enough indications to show that a gap does exists between the ideal and the real. Given the existence of such a gap, a wide gap at times, it follows that Muslim reformers and other international bodies and movements share at least one thing in common: an awareness of the need to close or at least narrow that gap. The problem arises, however, as to the most effective frame of reference and to the particulars of implementation.

International bodies and women's rights organizations tend to consider documents and resolutions passed in conferences as the ultimate basis and standard expected of all diverse peoples, cultures and religions. Committed Muslims, however, both men and women, believe in the ultimate supermacy of what they accept as God's divine revelation (the Qur'an and authentic hadith). To tell Muslims that one's religious convictions should be subservient to "superior" man-made (or woman-made) standards or to secular humanism, is neither acceptable or practical. Even if pressures, economic and otherwise , are used to bring about compliance with such resolutions or documents, the resulting changes are not likely to be deep-rooting and lasting. For Muslims, divine injunctions and guidnace are not subject to a "voting" procedure ot to a human election, editing or whimsical modifications. they constitute, rather, a complete way of living within Islam's spiritual, moral, social, political and legal parameters. Imposed cultural imperialism is not the solution.


IMPOSITION OR REFORM FROM WITHIN

On the other hand, reformation from within requires the following:

2. Social scientists, legislators and rulers should avoid using the argument of cultural particularity to justify anti-Islamic and non-Islamic practices and to continue oppressing men and women alike.

3. Scholars should not continue to quote and repeat some of the long-standing juristic interpretations as if they were equal in authority and finality to the two primary sources of Islam. Nor should they engage in a fragmentary and selective approach in seeking justification of the erroneous status quo. They should realize that even the greatest of jurists are fallible humans, whose interpretations have been affected by the culture and circumstances under which they have lived. With the host of pressing and significant contemporary issues, a fresh ijtihad (interpretation) is needed.

One of the main obstacles in the way of such a reexamination of some of the traditional views is worry on the part of some scholars about the reaction of other scholars or of the public to their conclusions. Yet, it is not the duty of the scholar to speak for what others want or expect. A qualified scholar is duty-bound to give practical answers to contemporary issues and problems without losing sight of the boundaries of proper interpretation. In the final analysis, it is Muslims' practices and understanding that need revision, not the revelatory sources, if properly understood, and more important, implemented.


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