Dr. Reeza Hameed
The All Ceylon Jamiyyathul Ulama (ACJU) is opposed to making any changes to the existing Muslim family law. Mufti Rizwi, who is a member of the Saleem Marsoof Committee appointed to look into reforms to the Muslims Marriages and Divorces Act (MMDA) of 1951, has made the oracular pronouncement that the law is ‘perfect in its present state’ and required no reform. Mufti Rizwi also presides over the ACJU. Regrettably, the views expressed by the Mufti and his outfit are anachronistic and obscurantist.
Matters relating to Islam and Muslim law ought not to be the sole concern of the ulema. In this comment I have touched upon some issues in the hope that it will contribute to the debate on the need for reform.
Minimum age for marriage
In Muslim law marriage is not a sacrament but a civil contract. Neither religious ritual nor having it done in a mosque is essential to confer validity to a marriage. A Muslim marriage is contract like any other in Islamic law. Parties to a marriage should have legal capacity to enter into the contract. There has to be an offer and an acceptance of that offer with the intention of establishing a marital relationship. There must be consideration given to the wife known as mehr. All the schools of law recognise that a person has freedom of choice to enter into a marriage and that he or she cannot be forced into one.
The age at which a young Muslim acquires legal capacity to marry has been a contentious issue. The traditionalist view adumbrated by classical jurists is that a person acquires the legal capacity to marry on attaining puberty. In the Hedaya, the manual on Hanafi law, the earliest age at which puberty is attained by a girl is 9 and by a boy at 12. A similar view is adopted by the Shafi School, which is followed by a majority of Sri Lankan Muslims. The presumption of Muslim law as applied in India and Sri Lanka is that a person attained puberty at 15.
In Sri Lanka, in a case decided in 1948, Justice Gratiaen decided that a Muslim minor becomes emancipated and, therefore, acquires capacity to enter into contracts on proof of attaining puberty or on reaching the age of 15. In 1950, in another case, Justice Swan held that, for the purposes of marriage, a Muslim attains majority on reaching the age of puberty. In my view these decisions ought to be reconsidered.
According to the Shafi School, an unmarried Muslim female requires the consent of her guardian to enter into a contract of marriage. There is no assurance that the guardian would always act in the child’s best interests or prevent child marriages from taking place. There is also the risk that a young girl might be forced into a marriage she is not ready or willing to embark upon. Tahir Mahmood, editor of Fyzee’s standard book on Muslim law, has stated that the reason why Muslim law proclaims the majority of young persons who have reached puberty is to free them from the guardian’s authority to force them into unwanted marriages and not to promote child marriages. In my view, the imposition of a minimum age for marriage is the better safeguard.
Age limits have been prescribed by the law in many areas of human activity. The law does not permit a person from driving a motor vehicle until he is 18. A person is considered not fit enough to vote at an election until she is 18. A person cannot ordinarily bind himself in contract until he is 18. The rationale for denying persons who have not obtained majority is that they are deemed to be lacking in maturity of judgement and the degree of responsibility necessary to engage in such activities.
The ACJU is opposed to the setting of a minimum age for marriage for Sri Lanka Muslims and wishes to retain the attainment of puberty as the event to determine the capacity for marriage. The ulema seem to think that the introduction of a minimum age for marriage would amount to interfering in the religious beliefs and practices of the Muslims. In support of its position, the ACJU has cited the Prophet’s marriage to Aisha claiming that she was either 6 or 9 when it took place.
It is unfortunate that the ACJU has perpetuated the false narration about Aisha’s age to defend child marriages. The Prophet’s detractors have been making this claim in order to denigrate him. The ACJU, by repeating this falsehood, has sullied his good name.
Aisha was about 18 when she married the Prophet. (On this, see Dawn). There are traditions which report that, at the time of her marriage, Aisha had a good knowledge of Arabic poetry and genealogy as well as a good understanding of ethics. These attributes do not fit the profile of a 9 year old.
The Prophet’s daughter Fatima was 18 when he gave her in marriage to Hazrat Ali. They were married in Medina after the prophet migrated to Medina. The Prophet supposedly married Aisha before the migration but moved in to his household in Medina after the migration. If Aisha was 9 at the time, then Fatima would have been 17 or 18. How could the Prophet have taken a girl of 9 into his house as a wife when he had an unmarried daughter of 17 or 18 living with him? It is not plausible.
Historians and ulema have also misrepresented the age of Khadija, the Prophet’s first wife, to whom he was monogamously married for about 25 years. Many biographical accounts of the Prophet give Khadija’s age as 40 and the Prophet’s as 25 when they were married. Khadija was twice married and twice widowed before she married the Prophet. Khadija had given birth to children by both her previous husbands. She also gave birth to seven children by the Prophet, and the last of them was born a year after he attained Prophet-hood at 40. If she was 40 when she married the Prophet, then she would have been 56 years old when she gave birth to her last child, an unlikely proposition even by today’s conditions but especially so then, given the comparatively shorter life spans enjoyed by men and women and, in the case of women, the risks associated with child birth.
According to historians such as ibn Habib and Baladhuri, Khadija was in fact 28 when she married the Prophet. Thus, 12 years have been added to Khadija’s age, and 12 years have been taken off Aisha’s age.
While the ulema are given to citing the Prophet’s supposed underage marriage to Aisha to condone marriages to underage girls, they hardly ever encourage Muslim men to follow the Prophet’s example and marry either a widow or a woman of 40 (or above), as the Prophet supposedly did in Khadija’s case.
There is nothing in the Quran which says that a man should marry a young girl. There are references to marriage in Surah an-Nisa. The title is an indication that this surah’s concern is with women. In Surah an-Nisa verse 3 the Quran says: “And if you have reason to fear that you might not act equitably towards orphans, then marry from among other women…” It is clear from this verse that the marriage contemplated in the Quran is between men and women and not between men and girls.
In verse 6 of the same Surah there is a reference to ‘marriageable age’. The Quran does not specify when a girl reached marriageable age, but it is the commentators who have interpolated puberty as the stage when it is reached. For instance, Maulana Maududi has explained it to mean: “When they are about to attain their puberty, keep an eye upon them and go on testing their intelligence in order to see how far they have become capable of looking after their own affairs.” It is to buttress a false interpretation that the falsehood about Aisha’s marriage has been perpetuated.
It is not in the best interests of a girl to be married off early. Early marriage robs a girl of her childhood. It would cause her childhood to be interrupted and prevent her normal growth into adulthood. She would be denied the opportunity of education and the empowerment that comes with education.
Puberty is a physical fact but does not make a girl mature. Maturity comes with age. Marriage requires physical as well as mental and intellectual maturity. Puberty does not furnish the necessary maturity and intellect to deal with the complexities and demands of married life. Early marriage would prematurely cast upon a child the burdens of childbearing and childrearing for which she is ill equipped and is neither physically nor mentally prepared. It would expose her to the risk of child birth at an early age. Yet, puberty is advocated as an acceptable age at which to confer upon a girl the capacity to undertake the onerous burdens of a marriage and subject her to such risks.
Another contentious issue among Muslims relates to the institution of polygamy. Polygamy existed even before the advent of Islam, but the Quranic impulse is to abolish it. In Surah an-Nur verse 32 the Quran exhorts: “Marry those of you that are single”. It makes no distinction between men and women. There is nothing in this verse to suggest that men ought to take more than one wife.
In Surah an-Nisa verse 3 it is said: “And if you fear that you may not be just to the orphans, then you may marry whom you please of the women: two, and three, and four. But if you fear you will not be fair, then only one…”
Traditionalists among Muslims have argued that this verse encourages polygamy. This verse was revealed shortly after the battle known as the Battle of Uhud in which the Muslim army suffered heavy casualties, leaving many widows without carers. It was no longer possible for them to return to their clans which they had abandoned upon embracing Islam. Membership in the nascent Muslim community was based on affiliation to Islam and not on affiliation to a clan or a tribe. It was in this context that the verse permitting polygamy was revealed to alleviate the condition of those women, reluctantly giving acceptance to the institution, but hedging it with conditions.
The conditions hedging around plural marriages are difficult to fulfil and it is impossible for a person to maintain equality between two or more wives. Indeed, the following warning is given in the Quran in the same Surah at verse 129: “You will not be able to treat all women equally even if you wish to do so.”
Instead of regarding this as an exhortation not to engage in polygamy, the ulema have defended this institution claiming it to be a fundamental aspect of Islam. Maulana Maududi, echoing al-Razi’s view, has even interpreted this verse to mean that because it is not possible for a man to treat all his wives equally, it is too much to demand from a husband that he should mete out equal treatment to all his wives.
Maulana Umar Ahmad Usmani has argued that the Quran does not permit plural marriages except of widows and orphans in exceptional war like situations. The recommendation is for monogamy rather than polygamy. The late Maulana Mumtaz Ali, another product of the Deoband School, argued that marrying four wives simultaneously is not the intention of the Qur’an.
The ACJU is opposed to the appointment of a female as a judge asserting it is contrary to Islam. To support its position, it has relied on a fatwa issued by the Dar ul-Uloom at Deoband, according to which “appointing a woman as a judge was ‘near haram’”. Despite saying that picking and choosing madhabs would cause confusion, the ACJU has done exactly that by choosing a fatwa from the Hanafi Deobandi School.
Two verses from the Quran have been cited to defend the legitimacy of its position. (i) Surah 4 verse 34: “Men are protectors and maintainers of women”. (ii) Surah 2 verse 228: “Men have a degree (of responsibility) over them”. A Hadith, too, has been cited.
The phrase “al rijalu qawwamuna ‘ala l-nisa” appearing in Surah 4 verse 34 has been the foundation on which the arguments about gender relationships have been constructed by the traditionalist ulema, and echoed by the ACJU. The meaning that is ascribed to the concept of qawwamah is central to an understanding of the relationship between men and women as conceived by the Quran.
Variable interpretations have been given to the word qawwamuna depending on the view that has been taken about its root word, with some deriving it from qiyam and others from qawam. The traditionalists, reading of qawwam as a derivative of qiyam (meaning ‘guardianship over other’), have argued that men are in charge of and are superior to women. Maulana Maududi has understood the verse to mean: “Men are the managers of the affairs of women because Allah has made the one superior to the others and because men spend of their wealth on women.” Maulana Ahsraf Ali Thanvi of the Deoband School translated qawwam to mean ruler over women.
Others have interpreted qawwamun as derived from qawam. T.B. Irving says that qawm is a difficult word to translate properly. He has translated the word to mean to ‘stand up’ as in to defend the common interests. In this sense, men are not superior to women but they are required to stand up for the rights and safeguard the interests of women.
Rather than expressing a relationship of superiority over women, qawwamuna implies an obligation on men to maintain women. The Quran in Sura 2 verse 228 comes strongly in favour of gender equality when it says of women: “They have rights similar to those against them.” Surah an-Nisa itself begins with the divine declaration that both men and women are from the same soul and are equally accountable to the Creator.
According to the hadith cited by the ACJU the Prophet had said: “No people will ever prosper who appoint a woman in charge of their affairs.” This hadith is based on a solitary report (ahad) by a person named Abu Bakrah. Hadith scholars distinguish between various types of hadith based on how sound they are. Thus, a mutawatir (massively transmitted) hadith refers to a report that was narrated by large number of people with a degree of consistency in their reports such that that all of them cannot be expected to agree upon a lie. An ahad hadith is lacking in the qualities of a mutawatir hadith and, therefore, does not inspire the same degree of certainty.
It is to be noted that this hadith was included by Bukhari in the chapters on Campaigns and Civil Strife. In Tirmidhi’s collection it has been included only under the chapter on Civil Strife. It is only in al-Nasai’s collection that it has been placed in a chapter dealing with the rules applicable to judges. What it demonstrates is that different hadith collectors have used a single hadith originating from a single source differently by placing it under different subjects, attributing different interpretations upon it. The ulema, in turn, have constructed a rule of far reaching implication for women based on the authority of a single narration of uncertain if not doubtful certainty.
More significantly, this hadith is inconsistent with the story of Bilkis, or the Queen of Sheba, as narrated in the Quran. The Quran says that her rule had been just. Rather than approaching the hadith through the Quran, the ulema have approached the Quran through the Hadith and given preference to the hadith even where it is inconsistent with the Quran.
It was reported that the Committee had asked the ACJU to look into the possible use of the concept of public interest to develop the law when reforming it.
The shariat permits the adoption of a rule which promotes public good and the broader principles of justice. Istihsan, which means giving preference to a regulation in the interests of justice, is a recognised principle of Islamic jurisprudence. It is related to the principle of interpretation known as maslaha. Maliki law has an equivalent principle known as istidlal.
In 1936, the late Maulana Ashraf Ali Thanvi issued a fatwa in which he advocated the adoption of certain principles of the Maliki School with a view to empowering women subject to Hanafi law to have their marriages dissolved on grounds recognised by Maliki law. Maulana Thanvi was from the Deoband School which adheres to the law as expounded by the Hanafi School. Hanafi law prevented Muslim women from getting divorced without their husbands’ consent. Maliki law recognised a woman’s right to divorce based on certain grounds such as the husband’s refusal to provide maintenance or his insanity.
The Maulana, motivated by his desire to ameliorate the hardship of Muslim women locked into miserable marriages, issued the fatwa to recommend the dissolution of marriages based on grounds recognised by Maliki law. His efforts resulted in the enactment of the Dissolution of Marriages Act 1939. The statement of objects of this Act declares that the Hanafi jurists have clearly laid down that, where the application of the Hanafi law causes hardship, it is permissible to apply the provisions of the Maliki, Shafi or Hanbali law, and the Act was being enacted “in order to relieve the sufferings of countless Muslim women.” This is an example of a change in the law brought about in the public interest.
It demonstrates that in Islamic jurisprudence there is no impediment to picking and choosing from different madhabs, or to change the law on public interest grounds.
Moving from one madhab to another should raise no objection because the orthodoxy of all four schools is accepted by each other. Choice is an essential feature of sharia and courts have upheld this choice. Hence, the submission made by ACJU that if the madhab is not specified it could lead to people picking and choosing from different madhabs, is a reflection of confused thinking.
There is, of course, a case for removing the word ‘sect’ from the Act. The term ‘sect’ is commonly rendered in translation as a heresy, but a Sunni madhab is not a heresy.
*The writer, Dr Reeza Hameed is an Attorney-at-Law