An Introduction to Islamic Law (30 page)

None of these areas of the law was so politically charged as that of
polygamy, however. The first step taken in further limiting the scope of this practice was the
Ottoman Law of 1917 which provided that, in her marriage contract, a wife might stipulate that, should her husband take a co-wife, she had the right to claim a judicial divorce. This device, centuries old, became commonplace in subsequent legislation throughout the Muslim world, but was often combined with other measures – also centuries old – empowering wives to sue for dissolution should certain unfavorable conditions arise in their marriage. These means consisted of (a) predicating the husband’s unilateral divorce upon the occurrence of certain conditions (i.e., if X happens, then divorce shall take effect), and (b) delegating the husband’s power to divorce to the wife herself (as well as to a third party). This delegated power was to be exercised by her upon the occurrence of particular conditions that she construed as disadvantageous to her, including her husband taking a co-wife.

Yet another approach to curbing polygamy was taken in a number of
Egyptian legislative proposals during the 1920s, but these were not to become actual law until the 1950s and 1960s, and in such countries as
Syria and
Tunisia before Egypt itself. The device was administrative in nature, requiring any man desiring to take a co-wife to petition the court for permission. The
1961 Muslim Family Law Ordinance of
Pakistan made the
consent of the wife a further requirement alongside the court’s permission. The court, however, could still refuse his request independently of the wishes of the wife, and this on either of two grounds: his financial inability to support two wives, or his inability to treat them in an equally just manner. These considerations, especially the latter, were based on the Quranic verse 4:3, which enjoins a husband to treat his wives justly and equitably. Some countries, such as Syria, opted for financial considerations as the chief grounds for a decision, while other countries deemed the notion of justice (which does not, in its widest interpretation, preclude financial considerations) as paramount. The
most drastic position taken on the issue of justice was that of
Tunisia. In the
1956 Law of Personal Status, polygamy was declared a criminal infraction, categorically prohibited on the grounds that it is impossible for any man to be just, as the Quran requires, in the same manner to two wives
.

Equally fundamental changes to the law were effected in the sphere of
paternity. In the interest of preserving social harmony and the integrity of the family, the Shari
a stretched the limits of conception and pregnancy with a view to ascribing
children, as much as possible, to the “marriage bed.” The basic and primary legal assumption was that “children belong to the marriage bed.” The
Islamic legal schools differed with regard to the minimal period in which, after the marriage begins, the child may be deemed
legitimate, as well as in regard to the maximum period after the marriage is dissolved or the mother widowed. The former period, in minimalistic doctrine, was fixed at six months, while the latter extended to between two and five years, depending on the particular school. The
Twelver-Shi
is constituted an exception in fixing it at ten months, although they were a numerical and doctrinal minority. In general, therefore, the Shari
a promoted the integration of children into family units, discouraging any tendency to single out children as illegitimate. To prove a child illegitimate, evidence had to be beyond any doubt, “reasonable doubt” being insufficient. In other words, there could not exist even a semblance of doubt. Furthermore, mere acknowledgment by the father that the child was his was deemed conclusive, even if the physical union of the parents may have been impossible for any period prior to six months before the birth.

Much of this has been changed in favor of, first, limiting the scope of legitimacy, and, second, the de-privatizing of paternity claims and declarations. In
India and
Pakistan, following
English law, the father’s acknowledgment is inadmissible if physical union between him and the mother was impossible before the marriage took place, and if the child is not born within 280 days of that marriage. The Arab states have preserved some elements of Shari
a doctrine, while at the same time rejecting the highly tolerant limits that it stipulated and that must have significantly conduced to resolving disputes that might otherwise have arisen. Thus, the
Egyptian Law of 1929 places a one-year limit on the determination of legitimacy after divorce or after the death of the husband, declaring the period of gestation to be no longer than one year
.

Although prior to the nineteenth century
unilateral divorce by the husband was not the most common form of dissolving marriage, the culture of modernity has made it a morally repugnant instrument, associated with
male domination, capriciousness and downright oppression.
Associated and combined with the exclusive male right to
polygamy (a relatively infrequent practice), this type of divorce came to symbolize, on the one hand, the tyranny of the Eastern male and, on the other, the wretched existence of the Muslim
female. The male’s absolute right to divorce was therefore to be curbed, in whole, and, if this proved impossible, at least in part. The foremost of these reforms was the declaration as invalid of any pronouncement of divorce made as an oath, under duress, in a fit of anger, while intoxicated, or – in some countries – during the menstruation period of the wife. Only statements made with the intent to dissolve a problematic marriage were now deemed valid, although they might not necessarily lead to dissolution. Also abolished in most Muslim countries was the so-called “
triple divorce,” a formula that abridges into a single statement the three pronouncements by the husband of his will to divorce, each of which should be made during a period when the wife is free from menstruation.

In most Muslim countries, the mere declaration of unilateral divorce by the husband (valid and effective in traditional jurisprudence) has been held ineffective without its being registered in court. In
Morocco, for instance, a husband need not petition the court for such a divorce, nor, therefore, does he need to vindicate it on any grounds, but he must register it. On the other hand, a woman who seeks a judicial divorce must (consistent with traditional law) explain to the court the reasons for her petition. In some countries, the husband may apply for divorce without having to state any grounds, while in other countries both parties are equally obliged to state the grounds for their request. In
Iranian law under the Shah (1967), while both parties faced the same procedural obligation, women’s scope for these grounds was expanded beyond that available for husbands. Under the Islamic Republic of
Iran, the
1967 Law was struck down, but several elements of it survived in the
Special Civil Courts Act. A wife’s
consent to the husband’s divorce continues to be a requirement, although the husband no longer needs to provide grounds for his wish to divorce when petitioning the court
.

In the great majority of Muslim countries,
wives are now said to be able to file for marital dissolution on two additional grounds, namely, the husband’s failure to provide spousal or family support, or his taking another wife. This does not mean, however, that such rights were not available to women before the twentieth century, for, as we saw earlier, it was in fact the common practice of both the courts and society in the case of the first grounds (i.e., failure to maintain) and a contractual option available to women in the case of the second (i.e., taking on another wife) that guaranteed such rights. The difference now is that the law is declared, made explicit and sanctioned by the state, the procedure having been
bureaucratized and formalized. Most importantly, perhaps, it allows state officials to wrap themselves in the robes of reform, though the substance has surely not changed to any notable extent.

In the same vein, much of the Shari
a law of marital dissolution was integrated into the civil codes of Muslim states in the name of reform, but a reform deprived of the complex system of checks and balances that Islamic law had extensively supplied. In addition to the two grounds for judicial divorce listed in the previous paragraph, the legislators included the following: defect in body or in mind that makes married life intolerable or dangerous; impotence that renders normal sexual relations impossible; cruelty and maltreatment, which included – depending on the definition of the particular state – anything from physical abuse to taking on another wife; absence for a prolonged period of time; and, finally, marital discord. As we saw, a woman in the Shari
a could petition the
qadi
for dissolution of her marriage for almost any reason, including all of the above, as well as for such reasons as “disliking her husband due to his ugly appearance or as a result of discord between the two.”
⁸
The
Egyptian Law of 1929 stipulates that “if a wife claims that her husband is causing her harm in such a way as to make it impossible for people of her social class to continue the marital relationship, she may petition the judge to dissolve the marriage, whereupon he shall grant her a single, irrevocable divorce, provided that the abuse is proven and he has failed in reconciling them. If, however, the judge denies her petition and she subsequently reiterates the allegation but cannot prove the abuse, the judge shall appoint two arbitrators.”
⁹
Thus, in the modern system, the procedural requirement of proving maltreatment must obtain before a wife is liberated from a bad marriage. Moreover, in some Muslim countries, while a woman can sue for, and obtain, divorce on any of these grounds, she is obligated to pay the husband a consideration decided upon by the court. Islamic law, by contrast, acknowledged the woman’s inability to cohabit as intrinsic grounds for dissolution, although arbitration and reconciliation before a final verdict remained, in effect, a mandatory requirement
.