Women's Rights and Islamic Family Law: Perspectives on Reform by Lynn Welchman

Review by: Muhammad Tahir Mansoori

Islamic Studies, Vol. 48, No. 2 (Summer 2009), pp. 280-285
Published by: Islamic Research Institute, International Islamic University, Islamabad
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 BOOKREVIEWS
280

All in all, the author has accomplished a major academic task.His

valuable studywill remainof immensehelp forresearchersand studentsin the
years to come.

ZiauddinFalahi

OOO

Lynn Welchman. Ed. Women's Rights and Islamic Family Law:

Perspectives on Reform. London-New York: Zed Book Ltd, 2004. Pp.

xii+300. Paperback.ISBN 184277095 0.No pricegiven.

Gender debate in theMuslim societies currentlyoscillates between two poles.

On theone hand, themodernists and human rightsactivistsadvocatewomen's
rightswithin the frameworkof international instrumentsof human rights
whereas, on the other hand, the traditionalistssummarilyreject themodernist
notions of human rights.Any initiativeto provide social justicetowomen and
as
improve their lot is generallydubbed by them part of theWestern agenda
aimed at secularizingMuslim society.The traditionalists, on thewhole, appear
to be more or less satisfiedwith the present state of women's rights in the
Muslim societies.
The fact,however, is thatwomen are among the oppressed segmentsof
humanity, inmore or less all countries of theworld, including theMuslim
countries. Women's situation is marred by injustice, oppression and
exploitation. There is, therefore,a dire need that serious effortsbe made to
improve theirstatusespecially inMuslim societies,for it is indeed amatter of
shame that there should be lack of fairnesstowardwomen inMuslim societies
even though Islam had liberated them fromwrong and injustice. It is,
however, necessary that the agendas forpromoting justice forwomen should
norms aswell as theobjectives of
primarilydraw upon Islam'smoral and legal
the SharYah.The internationalinstrumentsof human rightscan also serve as
an instrumentfor the achievementofwomen's rightsand there isno harm in
benefitingfrom them as long as theyarenot inconsistent with theSharVah.
The book under review attempts to suggest in women's
improvements
condition in thedomain of familylaw in the Islamic framework.It is a part of
the project "Islamic Family Law: Possibilities of Reform through Internal
Initiatives"directed by ProfessorAbdullah Al-Na'im at theLaw andReligion
at Emory University.
Program

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BOOKREVIEWS
281

The book examinesMuslim Family Law in Egypt, Palestine and USA.

The choice of these countrieswas perhaps dictated by the fact that they
represent three differentmodels of Muslim Family Law. Some thematic
studiesfromtheperspectiveof human rightsare also a part of thebook, which
comprises contributions of scholars from differentdisciplines of social
sciences.Apart fromLynnWelchman, the editor, the authors includeEssam
Fawzy, Penny Johnson,Rema Hammami, Fadwa al-Zabadi, Asifa Quraishi,
Najeeba SyeedMiller and Lisa Hajjar.
The book is divided into fourparts. Part I was written by Essam Fawzi
under the title: "Muslim Personal StatusLaw inEgypt: The Current Situation
and Possibilities of Reform through International Initiatives (pp. 15-92) It
presents a case studyof thePersonal StatusLaw inEgypt aswell as the social
attitudes invogue there.At the outset the author provides an overview of the
effortsmade by the Egyptian government for themodernization of family
law, thenmoves on to discuss some "contested issues" relating toMuslim
Family Law such as judicial khul\ qiwamah (or the authority of men over
women in family life), thewife's right to maintenance in case sheworks
outside home without thehusband's consent,polygamousmarriageswithout
the consent of thewife, etc.
It is pertinent to note that the Personal StatusLaw of Egypt represents
many adaptationswith the purpose to improve the statusofwomen. Among
the areaswhere the legislatorsinEgypt have tried to adapt the Shari'ah rules
are the following: fixingof minimum age formarriage, limitationson the
father's absolute authority (wildyahal4jbdr)} contractual stipulations, and
judicial hhul\ It is also pertinent tomention that theduly recognisedkhuV in
Islamic Law requires the consent of the husband for the grantof khul*at the
request of thewife. In otherwords, khuV is based on the principle ofmutual
agreementbetween the spouses.The judicialkhul\however, overrides thewill
of thehusband and grants thepower of decision to the judge.Article 20 of the
Law of judicial khul* 2000 as enforced in Egypt gives thewife the absolute
right to obtain khul1 through the court on the grounds that she does not like
herhusband(p.68).
Part I of the book also includes analyses of the resultsof public opinion
surveyson important issuesof family law, such as the ideal age ofmarriage,
the rightof a young girl to choose her husband, thehusband's responsibilities
towardshis family,thewife's righttowork outside her home, polygamy, the
duties of theworking woman towards familyand children, the rightof the
husband to physically punish his wife, and similarother issueswhich affect
women's position in the society(pp.45-56) The purpose of the surveyis to elicit
public opinion and socialattitudestowardsthecriticalissuesof Islamicfamilylaw.

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 BOOK REVIEWS
282

Part II of the book titled "IslamicLaw and theTransition to Palestinian

Statehood: Constraints andOpportunities forLegal Reform" (pp. 95-171) by
Penny Johnson and LynnWelchman presents the case studyof Palestine on
the statusof Personal StatusLaw during the period 1994-2000 and examines
the debates around Muslim Family Law and the attitudes towards legal
reformsof Personal StatusLaw inPalestine. The authors conclude that "while
there is a strongemotional commitmentforShariah to remain the framework
for personal status law in Palestine, there is a lot of room for negotiating
change with this.More specifically, there is popular legitimacy for an
extensionofwomen's rightsin familylaw" (p. 143).
Part II of the book also includes surveyson important issuesofMuslim
Family Law. The various polls tend to show that there is a high degree of
support forwomen's rightswithin familylaw.There is a high levelof support,
for instance,forwomen's rightto choose their spouse (p. 138).The polls also
show popular disapproval of thehusband's rightto beat hiswife (p. 133).
The thirdcountry study in thevolume (partIII) is byAsifa Quraishi and
Najeebah SyeedMiller. The study titled: "No Altars: A Survey of Islamic
Family Law in theUnited States" (pp. 177-229) examines the role of Islamic
family law forMuslims in theUnited States. It surveys the application and
perception of Islamic family law in America, the intellectual and social
discourse ofUS Muslims on topics pertaining to Islamic family law and the
practices of Muslims in conducting their marital lives. It also reviews courts
cases involvingMuslim marriage and divorce litigationsin theUnited States. It
is a very informative study that covers differentaspects of the topic. It
introduces the reader to the magnificent scholarlywork undertaken by
Muslim scholars inAmerica on IslamicLaw, especially Islamic familylaw.A
remarkable number of books, articles, magazines, etc. are available on Muslim

family law.Many organizations are engaged in enhancing the familiarityof

Muslims with Islamic law. It is noteworthy that theMuslim organizations
working inAmerica have divergent stanceson questions relating towomen
(p. 185). Some take a somewhat progressive attitude towards the issuewhile
others advocate amore traditionalinterpretation.The traditionalistsgenerally
tend to emphasise the primacy of motherhood, discourage public careers
cross-gender interaction, and emphasise household management as
involving
thewife's primary responsibility.
The scholars in America have debated and discussed almost all the
issues that affect women's status in the Muslim
important society. Many
modernist scholars have criticized Islamic law, especially the patriarchal
interpretationsof the SbarVah texts on gender relations which, in their
opinion, create biases in the law. The renowned American Muslim legal

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BOOK REVIEWS
283

scholars Azizah al-Hibri

and Maysam for instance, have re
al-Faruqi,
verses often cited on the subject of women's
interpreted the Qur'anic rights
as male over female, the of wife's obedience, the
(such superiority requirement
right of the husband to beat his wife), providing a critical analysis of the
juristic interpretation of each. "Karama" Muslim Women Lawyers forHuman

Rights, strongly advocates the insertion of additional stipulations in the

marital contract in favour of women. It is evident that there is a growing
interest among Muslim women, especially the activists among them, to fully
use the potential of marriage contract and contractual for
stipulations
protecting their rights.
Asifa Quraishi, one of the co-authorsof part III, has also identifiedthe
areas of tension and conflictbetween the Shan ah law andUS law (pp. 192
197). One of the areas where the t^vo laws are in direct
opposition is

polygyny. Whereas the classical Islamic law allows men to marry upto four

wives, US law clearly prohibits it. Another area of conflict is

inter-religious
law does not put any restriction on
marriages: US inter-religious marriages,
whereas the SharVah does not allow*a -MUslimwoman to marry a non-Muslim.
It goes without aMuslim man to marry a
saying, of course, that4Islam allows
Christian or Jewish woman while it does not allow aMuslim woman tomarry
a Christian or Jewish man. Several scholars have their reservation
expressed
regardingthis law (p. 194).
To resolve this issue, Azizah al-Hibri suggests that both Muslim men and
women should be prohibited frommarrying outside theirfaith.She adduces a
Shari'ah-bzsed argument in support of this position. She contends that "the
reason classical Muslim a woman the option of marrying a non
jurists denied
Muslim man was to protect her from the husband's
potential denial of her free
exercise of religion" (p. 194).Hibri concludes that the 'illah still exists.Asifa
Quraishi andNajeebah Miller have alsq (discussedin detail some specificissues
of Islamic family law arising from the enforcement of Muslim marriage
contract in US courts. The authors tell us that a Muslim contract is
marriage
inUS courts as a valid contract if the
generally recognized couple followed in
the first place the state law in it. The US courts also enforce mahr
registering
provisions of the contract due upon dissolution. As regards Muslim divorces,
"the basic rule governing the validity of divorces in US courts is lex domicile,
that is, thevalidity of thedivorce isd^pfndantupon the law of thedomicile of
courts also
the parties" (p. 208). US adjudicate childcustody
cases. In such
cases the courts sometimes enforce the SharVah law and sometimes, in their

opinion, uphold theprinciple of the "best interestof the child" (p. 210-211).
Part III of thevolume is very fich4n content as itdeals with a variety of
issues. It explains in a lucid manner the application and perception of Islamic

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 BOOK REVIEWS
284

law inUS. It provide a very comprehensivesurveyof the literatureavailable in

US on Islamic family law. It analyzes the issues arising from the enforcement
of Islamic family law inUS courts and provides guidance as to how the
Muslim community canmeet the requirementsof the SharVah as well as the
US Law, without compromising the principles of the SharVah.Many Case
Laws have also been cited in thepaperwhich hasmade the studyan authentic
legal referenceonMuslim familylaw inUnited States.
Part IV of the volume titled "Domestic Violence and Shariah: A
Comparative Study ofMuslim Societies in theMiddle East, Africa and Asia"
(pp. 233-272) has been contributed by Lisa Hajjar, a sociologist at the
University ofCalifornia at Santa Barbara. Lisa Hajjar has attemptedto explore
the relationshipbetween domestic violence and theSharVah.For thispurpose,
she has explained theproblem of domestic violence inMuslim societies in the
Middle East, and analysed variant interpretationsand applications of the
SharVah in regard to inter-familyviolence.
The author is dissatisfiedwith the dominant interpretationsof the
principle of qiwamah (man's authority) and ta'ah (obedience)which accords
man the status of the head of his familywith guardianship over women
(p. 243). She is also not comfortablewith thenotion of "wife beating" in the
Qur'an which, in her opinion, "has impeded efforts to prohibit and
criminalize violence, and contributes to social attitudes about beating as a
legitimatereprisalfordisobedience" (p. 245).
The fact is thatQur'an limits the possibility of hitting one's wife in
extreme cases of nushuz (recalcitrance/sedition). The Prophet (peace be on
him) in his Farewell Address seems to consider this in terms of (fahishah
mubayyanah) lewdnesswhich may lead to adulteryand qualified thehittingto
in his address: with women ....
be light. He stated "Intend and behave well

except if they commit (fahishah mubayyanah) lewdness, if theydo, thenGod

has permittedyou to desert them in bed and hit them lightly."1] Such hitting
lightly should not reach theproportion of violence. In doing so a husband is
not allowed to cross reasonable limits and engage in violent and unworthy
behaviour.2Any hittingwhich is injuriousor leaves itsmark on thewoman's
body is a criminaloffence.
Hajjar has described "marital rape" as a form of domestic violence
(p. 245). To this author this is a strangeconcept coined by thematerialistic

1
Abu IsaMuhammd b. Isa al-Tirmidhi,Jdmi'al-Tirmidhi,Kitab al-Rida', Bab Ma Ja*flHaqq al
Mar'ah 'ala Zawjiha.
2
The Prophet (peace be on him) categorically forbade fromhitting thewomen severelyor in
their face. See, for example, Abu Dawud Sulayman b. Ash'ath al-Sijistani,Sunan Abi Dawud,
Kitab al-Nikah, Bab Haqq al-Mar'ah 'alaZawjiha.

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BOOK REVIEWS
285

civilization and a produce of its profane values. All religions value the
marriage contract to be sacred which not only legitimizes the sexual
relationshipbetween the spouses but also limits itwithin this bond making
spouses the focal point ofmutual love,mercy and seeking tranquilityin each
other (see, e.g.Qur'an 30: 21).Moreover, all religionsconsider sexual relations
outside or beyond thewedlock a serious crime liable to severe punishment
even to the extantof stoning to death, to discipline the human thoughtsand
emotions to keep the spouses constantlyfocusof each other's tenderthoughts
and emotions.The materialistic civilizationby legitimizingtheout ofwedlock
sexual relations by mutual consent has deprived the spouses from exclusive
love and care of each other.This lack of exclusive love and care foreach other
has produced in due time the attitudesresponsible for "marital rap" though
the consent of sexual relations is inherentand in-builtin thevery concept and
contract of marriage.

Hajjar has frequentlycitedCEDAW (Convention on Elimination of all

formsof Discrimination AgainstWomen) as a standard forwomen's rights.
She wants the SharVah Law to adapt itself to international standards on
women rights [CEDAW]. The fact is thatCEDAW does contain provisions
which categoricallyconflictwith the principles of the SharVah.This explains
why the Muslim countries recorded their reservations on some of its
provisions. In this articleHajjar, however, generallyadvocates and promotes
the distinctlymodern notions of human rights and gives the international
instrumentsof human rightsa superiorposition as compared to theprovisions
of theSharVah.
All in allWomen's Rights and IslamicFamily Law. Perspectiveson Reform
is a good source book on Muslim family law in themodern world that
addresses complex contemporary issues regarding the application of Islamic
family law inMuslim societies.The treatmentof the issues is scholarly.All
statements made in the book are documented. One
general observation about
the content of the book, however, is that it does not seem to regard the
SharVah compatible with women's human rights. No wonder, many dominant
classical interpretationsof the SharVah textshave been criticized in the book,
(see, e.g. pp. 7, 12,31,244)
Despite these observations,one cannot deny the academicworth of the
book. One hopes that the book will inspire researchersto investigatewith
greaterdepth the question of the compatibilityof the SharVahwith women's
human rights.

Muhammad TahirMansoori

ooo

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