In our discussion about the legal position of the woman in Islam, we shall make frequent reference to the Shariah handbook “Reliance of the Traveller” of the Shafi’i school, one of the four great Sunni schools of Islamic jurisprudence. We strongly recommend the purchase of this book.
We stress here that our discussion does not reflect our own interpretation of the Koran and the Hadith but rather that of Islamic scholars who have devoted their entire life to the study of Islam. The major schools agree on the most important principles. How these principles ought to be implemented has raised some slight differences amongst the scholars themselves. In practice, there is departure from many points of the Shariah in Islamic nations. This does not mean, however, that the Shariah is somehow flexible. It simply means that in these countries it is felt that the Shari’ah is no longer current for what concerns a number of such points of difference. And it should be noted here that there is no question of the existence of a kind of moderate Shariah, however highly desirable this would be.
We refer in the text below to the following of our webpages:
Are men and women equal in Islam?
Muslims proclaim that men and women are equal in Islam. This is correct, but it pertains only to the relationship between a believer and Allah. In Allah’s eyes, they are equal. Anyone believing in Allah and Muhammad, and respecting his brothers and sisters in the faith, shall be “amply rewarded” by Allah once he gets to heaven. This we know from the following Quran:
33.35. For Muslim men and women,- for believing men and women, for devout men and women, for true men and women, for men and women who are patient and constant, for men and women who humble themselves, for men and women who give in Charity, for men and women who fast (and deny themselves), for men and women who guard their chastity, and for men and women who engage much in Allah.s praise,- for them has Allah prepared forgiveness and great reward.
This verse is repeated ad nauseam by Muslims who claim reciprocal equal rights between men and women. But the verse doesn’t deal with that at all. It is a “religious” verse that in no way has any legal bearing on the life of a Muslim.
Allah has given different rights and duties to men and women. Below, we explain how different the rights of men and women are in reality. There are dozens, well nigh hundreds, of verses to illustrate this. We shall give a summary of them on this page with referral to other texts.
Men are the custodians of women, Quran verse 4.34
The following verse presents a summary of the reciprocal relationship between women and men. It states that men must assume responsibility for women as their custodians. A woman is thus treated as some kind of minor always dependent on a man. Likewise, it is stated that a woman owes obedience to her husband. If necessary, a husband must “punish” his wife in order to keep her on the straight and narrow path, in the way parents do with their kids. But the reverse is not true; no compunction is placed on a man to obey his wife, and neither is it her responsibility to keep him on the correct track and to “punish” him if necessary.
4.34. 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 (lightly); but if they return to obedience, seek not against them Means (of annoyance): For Allah is Most High, great (above you all).
We should point out that the phrases in parentheses, such as “lightly”, are translator’s insertions and do not exist in the original Arabic. Besides Quran verse 4.34, there are traditions from Muhammed/Hadith that establish in broad outlines the relationships between men and women:
Narrated 'Abdullah bin 'Umar: The Prophet said, "Everyone of you is a guardian and everyone of you is responsible (for his wards). A ruler is a guardian and is responsible(for his subjects); a man is a guardian of his family and responsible (for them); a wife is a guardian of her husband's house and she is responsible (for it), a slave is a guardian of his master's property and is responsible (for that). Beware! All of you are guardians and are responsible (for your wards)."
Narrated Ibn 'Umar: The Prophet said, "All of you are guardians and are responsible for your wards. The ruler is a guardian and the man is a guardian of his family; the lady is a guardian and is responsible for her husband's house and his offspring; and so all of you are guardians and are responsible for your wards."
TRANSPOSED INTO ISLAMIC LAW, THIS MEANS:
Duties of a husband/father:
1- He shall pay for all needed expenditures of his wife and children. What a husband should spend on his wife is established in detail (see here). The condition attached to this maintenance obligation is that the wife behaves herself (see here what that means). If a husband grants his wife permission to work, she can keep the money thus earned since she has no maintenance duties towards her family or herself. She is likewise free to spend the money in any way she wants.
2- As head of the family, the husband decides where to live, to whom to marry his daughters, how to spend the money he earns ... Islamic law grants him this authority. We give an example from Saudi Arabia. A man married off his 8-year old daughter to his 58-year old friend. The mother appealed to the courts to have the marriage annulled. The judge ruled that she was not competent to proceed in this way since she was not the girl’s legal guardian; the father was. The judge ruled that the girl had to wait until she had reached puberty before she herself could petition for a divorce. Until puberty, she did not have the right to act for herself. See following link. In most Islamic countries, men will consult with their spouse(s) before taking a decision. This is however a matter of “culture”, not of Islam. Under Islamic law, the man does not need his wife’s permission for anything. His decisions are sovereign.
3- A father is responsible for his sons until they reach puberty, at which time a youth is considered an adult. Puberty is described in the above-mentioned Judicial Code in § k 13.8 as when a youth has undergone his first “wet dream”, at the latest when he turns 15. A youth is then an adult and makes his own decisions.
4- A father is responsible for his daughters until the time of their marriage, irrespective of their age. This is evident from the fact that a woman is given away in marriage by her father; see the above-mentioned Judicial Code, § m 3.4.
Duties of a spouse/woman
1- She must obey her husband. This is mentioned, amongst others, in verse 4.34:
4.34. ... So the pious wives are obedient… But those women whom you fear would disobey and defy, admonish them; and (if they do not amend,) separate them (from yourselves) in beds; and (if they still do not improve,) beat them (softly to bring reform). Then if they become obedient to you, do not seek any way (to oppress) them...
However, a man cannot force his wife to act contrary to the rules of Islam. Here is a text from the Hadith in illustration.
2- She has to submit to her husband’s sexual demands, at all times; in Islamic terminology, disobedience in a woman generally means that she refuses to submit to sex. Read more about this here. This rule is based on the Koran verse 2.223 and a number of Hadith texts, amongst others, Bukhari 7.62.81, 7.62.121 and 7.62.122.
2.223. 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.
The Quran commentator Ibn Kathir, based on reliable traditions of Bukhari, Muslim, and Abu Dawood, states that verse 2.223 deals with sex; see the following link. According to this verse, a husband must have access to his wife anytime he wishes. Since the Quran for the most part is addressed to men, nothing is mentioned about satisfying the sexual needs of women.
Narrated 'Uqba: The Prophet said: "The stipulations most entitled to be abided by are those with which you are given the right to enjoy the (women's) private parts (i.e. the stipulations of the marriage contract)."
Narrated Abu Huraira: The Prophet said, "If a man Invites his wife to sleep with him and she refuses to come to him, then the angels send their curses on her till morning."
3- She needs her husband’s permission to leave the home. read on
The Quran prescribes that a woman should remain at home unless she has a good reason for leaving it. Working and earning money is not included in this. That is the exclusive province of the husband.
Although the following Quranic verse pertains primarily to the wives of Muhammad, there exist a number of Hadith texts stating that women need permission to leave the home.
33.33. And remain in your houses with calm and peace and do not display adornment like that of the days of ignorance and establish Prayer and pay Zakat (the Alms-due) and keep obeying Allah and His Messenger (blessings and peace be upon him). Allah intends only to remove all impurity of sins from you, O People of the House (of the Prophet, [even a doubt or trace of shortfall,]) and make you absolutely pure and clean by blessing you with (perfect) purity and wholesomeness.
One of the Hadith texts of Bukhari, namely 7.62.165 that states women need their husband’s permission to leave the home, reads as follows:
Narrated Salim's father: The Prophet said, "If the wife of anyone of you asks permission to go to the mosque, he should not forbid her."
In this instance, Muhammad grants permission for a specific activity, namely going to the mosque. The woman must ask for permission and the husband must allow her to go.
It turns quite humorous when Muhammad grants women permission to leave the home to use the toilet outside. In this case they even don’t need permission from their husbands. It is interesting to note that Muhammad needed a “divine inspiration” when issuing this directive. That permission to allow women to leave the home was apparently not all that evident is demonstrated by the following Hadith text of Bukhari 7.62.164:
Narrated 'Aisha: Once Sada bint Zam'a went out at night for some need, and 'Umar saw her, and recognizing her, he said (to her), "By Allah, O Sada! You cannot hide yourself from us." So she returned to the Prophet and mentioned that to him while he was sitting in my dwelling taking his supper and holding a bone covered with meat in his hand. Then the Divine Inspiration was revealed to him and when that state was over, he (the Prophet was saying: "O women! You have been allowed by Allah to go out for your needs."
The expression “to satisfy a certain need” is illustrated in a Hadith text of Bukhari namely 1.4.148 and is explained as “answering the call of nature”, meaning “going to the toilet”.
4- The woman needs her husband’s permission to allow visitors inside the home.
This is based on the following Hadith of Bukhari 7.62.123:
Narrated Abu Huraira: Allah's Apostle said, "It is not lawful for a lady to… allow anyone to enter the house (of her husband) except with his permission;…"
Most conspicuous instances of discrimination against women in the Shari’ah
1- A woman needs permission from a male family member to get married: a male who has reached puberty can decide for himself whom he wants to marry.
In the event a woman wants to marry a man of whom “the family” disapproves, she needs to appeal to the courts and institute a suit. She then needs to prove that the intended husband is indeed a fit partner for her. If he is of lower birth, or when there exists doubt about his ability to maintain her in the style to which she is accustomed, chances are she will lose her suit.
There exist various Hadith texts demonstrating that, in principle, a woman must be given in wedlock by a male member of her family:
Abu Dawood Book 11, Number 2078:
Narrated Aisha, Ummul Mu'minin: The Apostle of Allah (peace_be_upon_him) said: The marriage of a woman who marries without the consent of her guardians is void. (He said these words) three times. If there is cohabitation, she gets her dower for the intercourse her husband has had. If there is a dispute, the sultan (man in authority) is the guardian of one who has none.
Narrated AbuMusa: The Prophet (peace_be_upon_him) said: There is no marriage without the permission of a guardian.
2- A man is entitled to keep four wives; a woman can have only one husband
The verse that allows a man to keep four wives is 4.3:
4.3. And if you have the apprehension that you will not be able to treat the orphan girls justly then marry the women you like and who are lawful for you, two or three or four (but this sanction is conditional on justice). Then if you fear that you will not be able to treat (more than one wife) justly then (marry) only one woman or the maids who have come under your possession (in accordance with the Islamic law). This makes it more likely that you refrain from committing injustice.
The right of a man to have 4 wives is an absolute right, provided he has the means to maintain them, a provision that also applies for the first wife. Hence, if a man can meet his commitments, he may keep 4 women. A cynical example of this right is given in a Hadith of Abu Dawood, Book 12, Number 2233:
Narrated Al-Harith ibn Qays al-Asadi: I embraced Islam while I had eight wives. So I mentioned it to the Prophet (peace_be_upon_him). The Prophet (peace_be_upon_him) said: Select four of them.
Some Muslims try to reason their way out of this by pointing out it is written in the above-mentioned verse 4.3 that a man may have only one wife since he cannot possibly treat them all equally and thus cannot be “just”. That he cannot treat his wives equally is also recognized by Allah and this is stated in the following verse:
4.129. And you simply do not have the ability to do (ideal) justice amongst your (more than one) wives, however ardently you may desire to do it. Do not, therefore, incline with absolute fondness (towards one, thus) leaving the other like something suspended (in the midst). But if you mend your ways and refrain (from injustice and maltreatment), Allah is Most Forgiving, Ever-Merciful.
What is understood by “just” is explained in a lengthy Hadith of Bukhari 7.62.29 wherein Aisha, the child-bride of Muhammad, reports that verse 4.3 was proclaimed in reaction to the fact that custodians of orphan girls were paying a dowry below their “market value” to marry them.
Being just thus means paying a dowry according to current market prices, which, amongst others, depends on the woman’s status. Being just also means adherence to verse 4.34, wherein it is stated that the man must assume responsibility for his wives’ maintenance (4.34. Men are custodians of women since Allah has made the one superior to the other and since they spend of their riches...). If both conditions are fulfilled, a man can take 4 wives.
The condition that a man has to ask his wife for permission to take on an extra wife has nothing to do with Islam. In a number of countries, e.g., Morocco, this condition does indeed exist, while in Tunisia, polygamy is even prohibited, but this is wholly divorced from Islamic law. The restriction of polygamy is a cultural phenomenon, inspired by “modernisation” of the legislation. And this inspiration is drawn from Western culture, not from Islam.
Verse 4.129 recognizes that, in his affections, a man will never succeed in treating his wives equally, but he is encouraged not to make this evident.
In defence of Islam in Western countries, people often claim that a woman has the right to divorce her husband when he takes another woman. This is only so when this right has been written into her marriage contract. In that case, it is an extra right she has been granted. This kind of clause is not normally entered into a contract since it simply constitutes an insult to the man, and marriage contracts are invariably concluded by men.
What is possible, however, is that a girl (who has reached puberty) or a woman (a widow or divorcee) may refuse marriage to a man already married.
What is not possible is for a woman wishing to marry a man who already has at least one wife to demand that the man divorce his other wife/wives. This is written down in a Hadith text of Bukhari, namely in 7.62.82.
Narrated Abu Huraira: The Prophet said, "It is not lawful for a woman (at the time of wedding) to ask for the divorce of her sister (i.e. the other wife of her would-be husband) in order to have everything for herself, for she will take only what has been written for her."
3- A man has the right to divorce without giving a reason, whereas a woman can only get a divorce via the courts and provided she can present a dossier with good arguments
In principle, a man declares three times that he wants to divorce his wife and his wish is fulfilled. The rules for divorce are written in the Quran verses 2.227 to 2.241.
That a woman cannot get a divorce at her own initiative is evidenced by a Hadith such as 7.63.197 of Bukhari:
Narrated Ibn 'Abbas: The wife of Thabit bin Qais came to the Prophet and said, "O Allah's Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him)." On that Allah's Apostle said (to her), "Will you give back the garden which your husband has given you (as Mahr)?" She said, "Yes." Then the Prophet said to Thabit, "O Thabit! Accept your garden, and divorce her once."
The following points are striking in the above citation:
- A woman wanting a divorce must present a reason (a man not), in this case un-Islamic conduct
- When the woman takes the initiative towards divorce, she needs to buy or negotiate her freedom. This proposition is also supported by Quran verse 2.229 that talks of “becoming free”. “...If you are in doubt that they will be able to abide by Allah’s dictates, neither of them shall be culpable of sin in what she gives back in order thereby to be set free...”. The Quran here implicitly holds that marriage for woman means a kind of confinement.
- In his role of judge, Muhammad orders the man to divorce his wife. Hence, Muhammad himself does not dissolve the marriage. It is rather the husband who does it. In Saudi-Arabia, men that refuse divorce simply don’t show up for the divorce proceedings; as a result, the woman does not “become free”.
There are Hadith texts such as 7.63.226 of Bukhari where Muhammad dissolves the marriage, and this in case of an (unproven) accusation of adultery:
Narrated 'Abdullah: An Ansari man accused his wife (of committing illegal sexual intercourse). The Prophet made both of them takes the oath of Lian, and separated them from each other (by divorce).
The Shari’ah handbook “Reliance of the Traveller” of the Shafi’i school holds in § n 1.1 that a divorce is only considered valid when so declared by:
- the husband
- who is mentally capable
- has reached puberty
- and does not act under pressure,
These writers of the Shafi’i school thus state that a youth can already be married prior to the age of puberty. For pointing out such statements, non-Muslims are accused of Islamophobia. Given that children prior to their puberty cannot conclude marriage contracts, this means that the youth in question was married off by his father. He can only dissolve the marriage after he has reached puberty.
4- The merit of a woman’s testimony is worth only half that of a man
This discriminatory rule is based on the following verse:
2.282. O Believers! Whenever you strike deals with one another for a fixed period, reduce the transaction to writing. And the scribe amongst you should write it with justice and should not refuse to write as Allah has taught him to write. So he should write (i.e. he should meet the requirements of documentation with utmost honesty, in accordance with the law of the land). And he on whom the liability (i.e. debt) falls should dictate the contents of the contract. And he should fear Allah, Who is his Sustainer, and (while writing) he should not diminish anything (from the indebted sum). Then if he who has undertaken the liability is mentally deficient or physically weak or lacks the ability to dictate the contents, his guardian should dictate with fairness. And get two witnesses out of your own men. But if two men are not available then a man and two women: (they) should be from among those whom you like as witnesses (i.e. consider trustworthy), so that if either of the two women forgets, the other may remind her. And the witnesses should not refuse whenever they are called (for evidence). And do not be weary of writing it down for its term whether the transaction is small or large. This documentation by you is more just in the sight of Allah, and makes evidence more solid and nearer to keeping you from doubt, except that if transactions are hand-to-hand which you carry out among yourselves then there is no sin on you if you do not write it down. And take witnesses whenever you bargain among yourselves. And let no harm be done to either the scribe or the witness, but if you do so, it will be sheer disobedience on your part. And keep fearing Allah. And Allah grants you knowledge of (principles of mutual dealing) and Allah knows everything well.
The following points are noteworthy in this verse:
- In principle, only men can testify. Women can only testify when no second man is present and available. Hence, two men can testify, or one man and two women, but not four women.
- The Quran states that women may be mistaken and that one woman must then assist the other to correct the error. Male witnesses make no mistakes.
- Verse 2.282 deals with contracting a loan. The various Islamic schools hold divergent opinions about testimony in other instances. Some maintain that only in a case of contracting loans are women allowed to testify and not in other cases (except for womanly affairs such as giving birth where men are generally absent). Other schools maintain that the rule is generally valid, albeit with exceptions (in cases where only male witnesses are permitted). For instance, in the matter of drawing up of a testament, 5.106 mentions the testimony of 2 just men, an instance where women cannot even bear witness at all.
5.106. O Believers! When death approaches anyone of you, then at the time of making a bequest there should be two men of probity from amongst you (for) taking testimony or (any) two men from among others if you are travelling in the land and (in the meanwhile) the agony of death overtakes you….
- The undesirability of women witnesses is made clear in the following Hadith: Bukhari, (1.6.301):
“Narrated Abu Said Al-Khudri: … He [Muhammad] said, "Is not the evidence of two women equal to the witness of one man?" They [a group of women] replied in the affirmative. He said, “This is the deficiency in her intelligence.”
This Hadith illustrates how Muhammad himself interpreted the Quran! According to him, the need arises to have 2 women witnesses as substitutes for just one man because women are somewhat short on intelligence; and the proof that they are short on intelligence is that the evidence of two women is worth that of one man. Muhammad is talking here about bearing witness in general, thus not specifically about contracting loans.
5- A woman inherits half of what male heirs receive
This discriminating rule is based on the following verse:
4.11. Allah commands you concerning (inheritance of) your children: The share of a son is equal to that of two daughters; then if there are only daughters (two or) more, they are entitled to two-thirds of the inheritance; if there is only one daughter, her share will be one half; the mother and the father of the deceased will get one-sixth of the inheritance each, if the deceased leaves children behind; but in case the deceased has no children and the heirs are only his mother and his father, the mother’s share is one-third (and the rest is the father’s); then, if he has brothers and sisters, the mother will have a sixth portion. This distribution will be (executed) after (the fulfilment of) the will he may have made or after (the payment of) the debt. You know not which of them, whether your parents or your sons, are closer to you in bringing you benefit. This (distribution) is a duty assigned (i.e. fixed) by Allah. Surely, Allah is All-Knowing, Most Wise.
6- Custody of children in the event of a divorce
The rules governing the custody rights of children following a divorce vary considerably amongst the various Islamic schools, but generally grant the custody of small children to the mother. As of a certain age, the children then move into the custody of the father.
A divorcee who remarries automatically loses custody of her children as she needs to place herself completely at the disposal of her new husband. This rule generally prevents divorcees from remarrying until the children are adults, which means that she is usually too old to be attractive to a new partner. And as a result she spends the rest of her life alone or becomes the second, third, or fourth wife of a husband who happens to take pity on her.
The rule is based on a Hadith such as the one of Abu Dawood, Boek 12, Nummer 2269:
Narrated Abdullah ibn Amr ibn al-'As: A woman said: Apostle of Allah, my womb is a vessel to this son of mine, my breasts, a water-skin for him, and my lap a guard for him, yet his father has divorced me, and wants to take him away from me. The Apostle of Allah (peace_be_upon_him) said: You have more right to him as long as you do not marry.
You can find more information about this in the following link.