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Khadim uz Zahra

The "disadvantages" Of Being A Woman

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(bismillah)

 

(salam)

 

I've been reading this book by Wael Hallaq, entitled An Introduction to Islamic Law, and, in it, I came across an interesting passage where he gives a historical perspective into the dealings of the Muslim courts, with respect to women and I found it an interesting reply to those who argue women are disadvantaged in Islam as it clearly shows that while Islamic Law favours men in certain places (such as daughters only getting half the inheritance of their fathers, as compared to the sons), women also possess distinct advantages in other areas - while, at the same time, giving us valuable insight into how we can reform the current situation within Muslim communities:

 

"Divorce, as the jurists understood very well, and as legal practice testifies, was a very costly financial enterprise for the husband, let alone that in many cases it was effectively ruinous (a fact which may also explain the rarity of polygamy). Upon [the invocation of the right to unilateral] divorce [by the husband], the ex-wife was entitled to maintenance for at least three months, delayed dower, children’s maintenance, any debts the husband incurred to her during the marriage (a relatively frequent occurrence), and if the children were young, a fee for nursing. And if the husband had not been consistent in paying for marital obligations (also a relatively frequent occurrence), he would owe the total sum due upon the initiation of divorce."

 

THAT WAS THE SHORT QUOTE. IF YOU WANT TO READ MORE, WELL, CARRY ON:

Furthermore,

 

"In this context, it must be clear that when women entered marriage, they frequently did so with a fair amount of capital, which explains why they were a source of lending for many husbands and why so many of them engaged in the business of money-lending in the first place. In addition to the immediate dower and the financial and material guarantees for her livelihood, the wife secured a postponed payment, but one that she could retrieve at any time she wished (unless otherwise stipulated in the contract). But equally significant was the trousseau that she received from her parents, customarily consisting of her share of her natal family’s inheritance paid in the form of furniture, clothing, jewelry and at times cash. Many women, before or during marriage, were also endowed with a waqf portion, giving them further income. Whatever the form of the trousseau and the total wealth they could accumulate, women were entirely aware of 66 An Introduction to Islamic Law their exclusive right to this wealth, and understood well that they were under no obligation to spend any portion of it on others or even on themselves. They apparently spent their own money on themselves only if they chose to do so, since such expenses as pertained to sustenance, shelter and clothing (in the expansive meaning of these terms if the husband was prosperous) were entirely his responsibility, not hers. In other words, unlike that of husbands, the property of wives was not subject to the chipping effect of expenditure, but could instead be saved, invested and augmented.

 

Considering the unassailability over the centuries of these rights–which on balance availed women of property accumulation–it is not surprising that, in the historical record, unilateral divorce by the husband appears to be less common than KHULʿ, the contractual dissolution of marriage (where the wife surrenders some of her financial rights in exchange for divorce). The relative frequency ofkhulʿ in Istanbul, Anatolia, Syria, Muslim Cyprus, Egypt and Palestine has been duly noted by historians. It is a phenomenon that explains –in this context –three significant features of Muslim dissolution of marriage. First, while the husband could divorce unilaterally, there was also a“price”that he paid for this prerogative. In other words, the average husband was constrained by hefty financial deterrents, coupled with legal and moral deterrents installed by the law as well. Second, the husband’s unilateral divorce in effect also amounted to a one-way transfer of property from the husband to the wife, beyond and above all that he was–for the duration of the marriage – obliged to provide his wife by default. In fact, an important effect of this transfer was the fact that many repudiated women purchased the husband’s share in the matrimonial house, funneling the divorce payment due to them toward such a purchase. Third,khulʿ, within the economic equation of Muslim marriages, was in a sense less of a depletion of the woman’s property because the payment by the wife was usually the delayed dower her husband owed her, plus her waiting period allowance. This was so typical that the juristic manuals reflected this practice as a normative doctrine. The point, however, remains that it was the very financial promise made by the groom that was used as the bargaining chip for khulʿ.

 

Khulʿ, a means by which a woman could exit an unhappy marriage, provides an excellent context to assess domestic violence against women
and other causes of their marital discord. Because they had fairly easy access to the courts, unhappy wives had the option of addressing themselves to the qadi, who would assign officials of the court to investigate the abuse or other harm that made these women’s marriage unbearable. If abuse was proven, the court had the power to dissolve the marriage, as it often did. The law also allowed the woman the right to self-defense, including, under certain circumstances, the killing of an abusive husband. But if the husband was not at fault, a wife who found her marriage unbearable could at least dissolve it by khulʿ.
 
The formal legal aspect of such situations might well be augmented by another social aspect. Obviously, the ties of the wife/woman with her
original family were not, upon marriage, severed, and her parents, brothers and sisters continued to watch closely as the marriage of their daughter/ sister unfolded. It was, after all, the parents of the wife who had usually arranged the marriage, and who were at least to some extent responsible for it as well as for the well-being of their daughter. If the marriage failed, they not only had to deal with such a failure in the public space, but also had to“take back”their daughter, with all the economic and other consequences this“taking back”might entail. Their interest in the success of their daughter’s marriage explains the close scrutiny many families exercised (and still do) to prevent abuse by the husband of their daughter (including such measures as the beating of the abusive husband by the wife’s brothers). Unlike the present situation of many women who, in the nuclear family of today, must fend for themselves, women in earlier Islamic societies continued to have the psychological and social –and when necessary economic–backing of their original families. This obviously did not prevent abuse in all cases, but it did contribute significantly to its reduction. However, when all attempts had failed, the wife’s original family, often with the collaboration of the husband’s own family, would exercise the necessary pressures to bring the marriage to an end, before the qadi or not.
 
Finally, a few words about women and property rights are in order. Making up about 40 percent of the real estate dealers in some cities, women regularly approached the court to register their sales and purchases, recording in this way the fact that they were heavily involved in
transactions related to house transfers. As court litigation and registries show, women owned both residential and commercial properties, mainly rent-earning shops. They often owned their own houses, and frequently jointly purchased houses with their husbands, during, but also before, the marriage. As already mentioned, when they were repudiated by their husbands, they often bought the latter’s share in their matrimonial house with the very money their husbands owed them as a result of divorce.
 
Women were also participants in one of the most powerful economies in Muslim lands, namely, the real property dedicated as waqf, which, by the dawn of European colonialism, constituted between 40 and 60 percent of all real property. Except for the largest endowments, usually established by sultans, kings, viziers and emirs, many of the founders of medium-size and smaller waqfs were women. They often founded
and managed endowments alone, and to a lesser extent they were also co-founders, along with males and other females. A relatively impressive number of waqfs were established by manumitted female slaves associated with the political and military elites, and these too established waqfs independently as well as with their (former) masters (a fact that attests to the financial, and even political, power of female slaves).Waqfs of modest range appear to have been established by men and women in equal numbers. Their participation in the important waqf economy began early on, and steadily increased throughout the centuries. By the eighteenth century, women constituted between 30 and 50 percent of waqf founders. In some places, there were more women establishing endowments than men. In certain cities, a significant number, and at times more than half, of the endowments established by women were public, dedicated to religious and educational purposes or to caring for and feeding the poor. And like men, most women creating endowments purchased their properties for this purpose.
 
It is only reasonable to assume that more women benefited from waqf endowments as beneficiaries than there were women who founded such
endowments. Quantitative evidence of the proportions of men and women who were waqf beneficiaries has still to be tabulated, but the general evidence thus far points to well-nigh equal numbers. The theory that the juridical instrument of waqf was used to deprive females of their entitlements to inheritance no longer stands, for it appears, to the contrary, that the waqf was resorted to in order to create a sort of matrilineal system of property devolution. Equally important, however, was the crucial factor of avoiding the partition of family property (which Quranic inheritance tended to do), this frequently having harmful economic effects that were curbed by having recourse to the waqf instrument. It should therefore not be surprising to find many waqf deeds that allocate to the beneficiaries the same proportional entitlement to the estate as the Quranic shares.
 
One historian has found that in eighteenth- and nineteenth-century Aleppo women were disadvantaged as inheritors in less than 1 percent of the 468 waqf deeds she examined. Women generally designated more females than males as beneficiaries, while some 85 percent of men designated their wives and/or daughters, a situation that obtained in sixteenth-century Istanbul as well. The same pattern occurs with regard
to rights of residency in the family dwelling of the founder. The great majority of waqf deeds–in Aleppo, Istanbul and elsewhere –did not discriminate against females, nor did they limit their rights in any way. But when they did, the restriction did not preclude the right to live in the house until marriage, or to return to it when they became orphaned or divorced. Nor did preclusion apply to female descendants, a fact that“left the door open for married women and their spouses and their offspring to claim their rights to live in the house.”
 
Women were also deemed to be as qualified as men in their capacity as managers of endowments, an influential administrative and financial position. Although there were more men than women performing this function, a large number of women appear as administrators of waqfs established by their fathers, mothers, grandparents and distant relatives. In the eyes of the court too, women manifestly had precedence over younger males as administrators. And like men, women reserved for themselves the right to be the first administrators of their own endowments. They also reserved and used the right to sue against infringements of waqf rights, on behalf of themselves as well as others.
 
In sum, Muslim women were full participants in the life of the law. As one historian has put it with regard to Ottoman women, they“used their right of access to the courts to promote their interests, in which a manumitted slave could restrict the claim of her past master to her estate, where a farm woman could challenge the claim of a creditor upon the expensive livestock she had purchased, where a widow could assert her priority right to buy her husband’s share in real property, and where a woman traveling alone from one village to another could charge a police officer with obstructing her path.” But if the law depended, in its proper functioning, on the moral community, then women–just as much as men – were the full bearers of the very morality that the law and the court demanded. And as moral denizens, or denizens who aspired to the power that was generated by moral character, they engaged in the law, losing and winning on the way. As participants in the legal system, they developed their own strategies, and drew on the moral and social resources available to them. They no doubt lived in a patriarchy, but the inner dynamics of this patriarchy afforded them plenty of agency that allowed them a great deal of latitude. That“Islamic modernity”has often proven to be oppressive of women, as we shall see inchapter 8, cannot take away from the fact that for a millennium before the dawn of modernity they compared favorably with their counterparts in many parts of the globe, particularly in Europe."
Edited by Khadim uz Zahra

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Wait, so if a husband fails to provide for his wife for the duration of the marriage, and she requests that he divorce her, he is obligated to pay all her normal living expenses that she paid for herself while they were married? And he would also have to repay any that the wife had paid for the support of any children too?

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Wait, so if a husband fails to provide for his wife for the duration of the marriage, and she requests that he divorce her, he is obligated to pay all her normal living expenses that she paid for herself while they were married? And he would also have to repay any that the wife had paid for the support of any children too?

 

I'm sorry, I didn't post the previous section. Here, he is talking about unilateral divorce by the husband, in which case, if he owes any dower to her, or did not fulfill his marital obligation, or was indebted to the wife, at invoking his right to divorce, he is immediately liable to pay all these to his ex-wife. I'll add "unilateral divorce by the husband" in brackets.

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I'm sorry, I didn't post the previous section. Here, he is talking about unilateral divorce by the husband, in which case, if he owes any dower to her, or did not fulfill his marital obligation, or was indebted to the wife, at invoking his right to divorce, he is immediately liable to pay all these to his ex-wife. I'll add "unilateral divorce by the husband" in brackets.

But I stated that he did not fulfil his obligation of support. Would the indebtedness apply if the husband failed to provide for his wife, say for several years, but instead required her to provide for herself and their children.

I am also wondering about the custody of children if the father has failed to provide for them.

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But I stated that he did not fulfil his obligation of support. Would the indebtedness apply if the husband failed to provide for his wife, say for several years, but instead required her to provide for herself and their children.

I am also wondering about the custody of children if the father has failed to provide for them.

 

I'm not sure if I understand your question fully. So, is your question that in the case the woman has her own money and the husband fails to provide for her in terms of food, clothing and shelter, and she uses her own money to provide for herself, at the invocation of his right to divorce, is he obligated to pay back all that he "owes" her for not paying for her livelihood in the first place?

 

If that is indeed the question, well, I am not a fiqh expert but from what I've been reading of his book, then, yes, he would be obligated to do so. I must, however, mention that most of his book deals with Sunni Islam and, so, I am not sure if there would be a difference with the ruling in Shi'i fiqh. Also, his work is more of a historical look at Sharia as opposed to a legal treatise dealing with the treatment of issues so he may not have accounted for all the views on the topic.

 

Therefore, I would suggest that you ask someone more knowledgeable about Fiqh in this regard.

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If there is no practical application today, what is the point of knowing the history?

When did I say there isn't a practical application today. All I said was that according to my understanding of the book, yes, he would have to but he mostly concentrated on the Sunnis and we might have a different view so you should confirm with someone more knowledgeable about fiqh in order to confirm whether the Shi'i view is the same. When I mentioned his book being from a historical perspective, what I was alluding to was that due to the nature of his work, he obviously can't talk about all the views that may have existed along the years as he has to cover a wide period and has to mostly concentrate on what the majority did. Also, due to this being a historical work, he may not have known or mentioned all the intricacies of the law.

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