Misconception
about woman's right in Islamic law
There
is a common notion among the women of Bangladesh that the Islamic law
has not treated them equally and it gives priority and prerogative to
the male Muslims. The main logic behind their view are -a sons double
share in the parental property, one man being equitable to two woman
in legal testimony, males right to marry up to four wives, males right
to guardianship and custody etc. All these instances deny the absolute
equality of man and woman apparently. But if we study the Holy Quaran,
Hadith and their explanation, it will be manifest that Islamic law not
only secure the right of a woman rather in some cases it offers them
more privilege than a Muslim male. Today people think that women are
liberated in the West and that the women's liberation movement began
in the 20th century. Actually, the women's liberation movement was not
begun by women but was revealed by Allah to a man in the seventh century
by the name of Muhammad (peace be upon him), who is known as the last
Prophet of Islam. The Quran and the Traditions of the Prophet (Hadith
or Sunnah) are the sources from which every Muslim woman derives her
rights and duties. Actually, nowhere does the Qur'an state that one
gender is superior to the other. Some mistakenly translate "qiwamah"
or responsibility for the family as superiority. The Qur'an makes it
clear that the sole basis for superiority of any person over another
is piety and righteousness not gender, color, or nationality: The Quran
states:
O mankind! We created
you from a single (pair) of a male and a female and made you into nations
and tribes that you may know each other. Verily the most honored of
you in the sight of Allah is (one who is) the most righteous of you.
And Allah has full knowledge and is well acquainted (with all things).
(Qur'an 49:13)
It can be understood
from this verse that there is actually no discrimination between man
and woman in the eye of Allah but still then some misconception arises
due to some Islamic rules and regulation. These misconceptions will
be removed if we can find out the logic behind such rules and regulation.
At first, lets discuss
the reason behind the double share of a son in his parental property.
Basically, according to explanation of sharia responsibility attributed
on the man to maintain not only his wife but also his children even
if the woman is wealthier than his husband is. The letter is under an
obligation for her maintenance. The sharia recognizes the full property
rights of women before and after marriage. Greater financial security
is assured for women. They are entitled to receive marital gifts, to
keep present and future properties and income for their own security.
No married woman is required to spend a penny from her property and
income on the household. She is entitled to full financial support during
marriage and during the waiting period ('iddah) in case of divorce.
She is also entitled to child support. Generally, a Muslim woman is
guaranteed support in all stages of her life, as a daughter, wife, mother,
or sister. These additional advantages of women over men are somewhat
balanced by the provisions of the inheritance which allow the male,
in most cases, to inherit twice as much as the female. This means that
the male inherits more but is responsible financially for other females:
daughters, wives, mother, and sister, while the female (i.e., a wife)
inherits less but can keep it all for investment and financial security
without any legal obligation so spend any part of it even for her own
sustenance (food, clothing, housing, medication, etc.). Therefore double
share of the parental property is given to the male due to aid them
to perform their obligation. Again if we speak about the Quranic heir
(who are the class 1 heir), they are 12 in number and 7 of them are
women. So the number of male heir is less than the female heir. It is
a burning example that in case of succession Islamic law gives women
special priority.
Another argument
arises about polygamy that if a Muslim man is permitted to marry up
to four wives why not a Muslim woman is not allowed doing so, The main
reason behind this is that if polygamy were allowed for women it would
be impossible to identify the paternity of children, which would destroy
the fabric of the society. Moreover, only Islamic law allows limited
polygamy and a Muslim male can marry more than one wife only if he can
deal the wives justly. The Quran states 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) The only passage in
the Qur'an(4:3) which explicitly mentioned polygamy and restricted its
practice in terms of the number of wives permitted and the requirement
of justice between them 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 is
to deal with individual and collective contingencies that may arise
from time to time (i.e., imbalances between the number of males and
females created by wars). This provides a moral, practical, and humane
solution to the problems of widows and orphans who are likely to be
more vulnerable in the absence of a husband/father figure to look after
their needs: financial, companions, proper rearing, and other needs.
Again in case of
custody and guardianship father is entitles to the custody of the son
over seven years of age and the right of guardianship of children is
always vested in father. The main logic behind such rule is the socio
economic conditions of the women have the effect of not favoring them
in this case and the preconceived idea remains that women are unable
to maintain the child due to their lack of economic solvency. Therefore
legal responsibility of maintaining the child and also the custody as
well as guardianship remain with the father ultimately.
Again in case of
legal testimony no reference was 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 a relevant
passage (tadhilla) means literally "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 this
is why the general rule of testimony in Islamic law is to have two witnesses
even if they are both males. This leaves us with only one reasonable
interpretation that in an ideal Islamic society as envisioned by Islamic
teachings the female members will give priority to their feminine functions
as wives, mothers, and pioneers of charitable works. This emphasis,
while making them more experienced in the inner function of the family
and social life, may not give them enough exposure and experience to
business transactions and terminology, as such a typical Muslim woman
in a truly Islamic society will not normally be presented when business
dealings are negotiated and if may present may not fully understand
the dealings. In such a case, corroboration by two women witnesses helps
them remind one another and as such give an accurate account of what
happened
So it is quite evident
from the above discussion that Islamic law contains a comprehensible
message concerning equality of the sexes. This is implied by several
verses of Quran. The Quran states: And it becomes not a believing man
or a believing women, when Allah and His Messenger (Muhammad) have decided
on an affair (for them), that they should (after that) claim any say
in their affair; and who so is rebellious to Allah and His Messenger,
he verily goes astray in error manifest. (33:36)
Basically, the Muslim
woman was given a role, duties and rights 1400 years ago that most women
do not enjoy today, even in the West. These are from God and are designed
to keep balance in society; what may seem unjust or missing in one place
is compensated for or explained in another place. Islam is a complete
way of life. Hence, there should not be any scope of misconception regarding
women right in Islamic law.
Putul
LLB(Hons), 2nd year Dhaka University
