Sexual Ethics in Islam (10 page)

This distinction between what is acceptable to God and what is acceptable to the state influences the solution arrived at by Qadi Khan, following Abu Hanifa: the woman may kill her “husband” provided she does so with “drugs,” not a “weapon.” Why is poisoning acceptable, while killing in some other fashion is not? Although Qadi Khan may have been influenced by the view that it was unladylike to kill using a weapon, the more salient rationale is that if she were simply to kill him by stabbing, for example, the fact of his having died an unnatural death would be obvious, and a culprit would be sought and punished.

lesser evils: divorce in islamic ethics 31

It is not fair that a woman should be subject to execution in retaliation for having defended herself against sexual assault, but she has no way of proving what transpired. Her testimony that she killed in order to avoid his attempt to have intercourse with her after he had divorced her absolutely would not be exon- erating in this circumstance, just as it would not be considered adequate to prove her divorce itself. Thus, one can deduce that Qadi Khan grants permission to poison the ex-husband in order that his unnatural death escape detection. If it does not become known or cannot be proven that he has been deliberately killed (as would most likely be the case before the introduction of sophisticated forensic methodologies), then her actions will not come under scrutiny, she will not have to provide justification for them, and hence the issue of the reliability or legal worth of her testimony as to her motive for killing him – the fact of his having divorced her and denying it – will not come up.

Prominent seventeenth-century Palestinian Hanafi mufti Khayr al-Din al-Ramli’s treatment of a similar case confirms this analysis. In this instance, “an evil man who harms his wife, hits her without right and rebukes her without cause” has, after swearing to divorce her “many times”, finally done so. When she is able to demonstrate “that a thrice divorce had taken effect,” the mufti declares that“it is permissible for her to kill him, according to many of the ‘
ulama
’, if he is not prevented [from approaching her] except by killing.”
1
5
Because the divorce is proven, she is granted permission to kill him if he attempts to have sex with her. The juxtaposition of these two fatwas illuminates the exist- ence of two distinct types of legal rules. Those that govern the wife’s ability to kill her husband in the case addressed by Qadi Khan, where she cannot prove the divorce, can only be moral – she will be absolved of guilt in this case, and will not have to answer to the divine for a transgression. However, though her killing him is religiously licit, if she is brought before temporal authorities, she will be subject to retribution because her testi- mony cannot be accepted on this question. In Khayr al-Din’s case, however, the divorce is proven; the woman’s ex-husband is legally a stranger and she can defend herself against his advances even to the point of killing without fear of retribution.

32 sexual ethics and islam

In Qadi Khan’s fatwa, the entire matter revolves around the inadmissibility of the wife’s testimony. Why is it that a wife’s testimony cannot be accepted regarding
talaq
? It is not, as might be supposed, an issue of women’s testimony having less weight than men’s but rather an issue of “plaintiff ” and “defendant.” Although one Qur’anic verse attributes different weight to male and female testimony, and jurists have further limited the range of cases in which women can testify, in numerous matters related to marriage the words of husband and wife are equiva- lent. Yet in discussing the wife’s response, Qadi Khan does not even suggest that there might be any possible way for her to seek judicial recognition of his divorce of her. Allowing women’s word to count with regard to their own divorces would open up the floodgates to women claiming to have been triply repudiated – likely to cause more trouble for the Hanafis in particular, given the extremely limited grounds on which women could seek divorce.
16
In Qadi Khan’s implicit calcu- lation of the relative harm in each case, to allow this man’s death is acceptable in a way that tampering with the overall weight of rights granted to husbands in matters of divorce would not be.

The Hanafi solution, however, is not palatable to everyone. Moralistic traditionist-jurisprudent
17
Ibn Hanbal confronts the same question, several centuries before Qadi Khan arrives at a different ruling. First, the wife should seek to ransom herself from her husband in divorce for compensation. Though he does not say so directly, one can deduce that this is merely a strategy to get him to recognize the divorce. It will have no legal effect, since no marriage actually exists after his absolute divorce. If her husband refuses to allow this but rather compels her to remain “married” to him, “She should not adorn herself for him, nor should she come near him, and, if she possibly can, she should escape from him.” Asked specifically “Should she fight him, when he desires her?” Ibn Hanbal hesitates. “I do not know,” he replies. “She should not fight him. Abu Hanifa said she should fight him. She should escape from him if she can.”
18
The wife here has the obligation to resist sex, but this should be accomplished by non-combative means. Ibn Hanbal’s

lesser evils: divorce in islamic ethics 33

invocation of Abu Hanifa’s view perhaps serves to give his listener an option beyond what he is willing to endorse.

The burden is on the woman to place herself out of reach, sexually, whether she hears the divorce pronouncement herself (according to Ibn Hanbal, “Her case is strongest” in this instance) or hears the testimony of two witnesses who can be trusted. In a case where there were witnesses, presumably she could have used their testimony to establish that her husband had in fact divorced her. Perhaps in this case her escape is a short- term measure until the witnesses can give testimony publicly to the fact of her divorce, resulting in the clarification of her mari- tal status. If there are no witnesses, she has even stronger justifi- cation for escaping. But what exactly does it accomplish in that case? Ibn Hanbal does not say, as the text moves on to discuss an unrelated matter. If a woman escapes, presumably back to her natal kin, what happens to her marriage if her husband con- tinues to insist that he has not divorced her? She loses her right to support and remains unable to remarry – though she avoids the collusion in illicit sexual acts, she cannot end her marriage (while her erstwhile husband is free to take another wife). Unlike in the Hanafi scenario where she kills him, she remains tied to him until and unless he acknowledges dissolving the marriage.

Cases such as those just discussed are extreme, not rep- resentative. Though judges were undoubtedly faced regularly with “claims and counterclaims” regarding the occurrence of divorce, it is impossible to know whether any particular case ever resulted in killing.
19
One of the limitations of working with legal handbooks and compilations, rather than archival docu- ments, is that it is not possible to determine what discussions are in response to actual events and what is merely hypothetical. Particular scenarios can garner jurists’ attention far out of pro- portion to their likelihood of occurring, simply because in resolving the legal issues at stake, challenging legal points can be illustrated or clarified. My choice of this dramatic example to discuss divorce was meant to illuminate, in a tangible way, the extensive, unilateral privilege held by husbands in the realm of divorce. Only once this is understood can contemporary discus- sions of
talaq
and its reform be more fully comprehended.

34 sexual ethics and islam

Prospects for reform

Reforms to divorce laws in the contemporary Muslim world have been plentiful.
20
Most of these reforms have attempted to either restrict men’s unfettered exercise of their rights to
talaq
or to increase women’s access to divorce for cause. Some majority Sunni nations have accomplished the first aim by requiring some type of intervention or registration from a judge, or by declaring that three repudiations pronounced at once will count as only one divorce, as in the recent Indian debate.
21
Other nations, such as Iran, have imposed financial penalties on a husband who divorces his wife without cause. Despite these attempts to curb men’s impulsive and extra-judicial use of
talaq
, almost all courts ultimately consider
talaq
pronouncements legally effective since they are recognized by religious authorities. The widely held view that a husband’s pronouncement of
talaq
is religiously valid regardless of whether approved by a court, and regardless of whether or not it contravenes provisions of civil codes, consti- tutes a major stumbling block for efforts to reform divorce law in those nations where putatively Islamic family codes hold sway. In some ways, the codification of marriage and divorce laws has reduced the flexibility that women of the upper classes may have enjoyed in the past.
22
Though reforms have altered some of the specifics of divorce laws, they have not challenged the basic idea that divorce is a man’s prerogative, while women may only obtain divorce for cause.

A more recent Egyptian law, approved by the chief jurist of Al-Azhar, the most respected institution of traditional learn- ing in Egypt and perhaps the entire Sunni Muslim world, pro- vides an alternate approach. As noted above, the vast majority of premodern jurists as well as contemporary national laws have considered the husband’s agreement essential to
khul‘
, divorce for compensation. Beginning in March 2000, Egypt granted the wife the right to obtain a
khul‘
divorce from a judge without the husband’s consent if she returns the dower she received at marriage.
23
Judicial
khul‘
has been legal in Pakistan since the middle of the twentieth century, meaning that a wife who does not have effective grounds for divorce for cause may seek this

lesser evils: divorce in islamic ethics 35

type of divorce, returning her dower and getting out of a mar- riage in which she refuses to remain.
24
Similar legislation has yet to pass elsewhere, but I think it likely that eventually more reforms of this type will pass;
khul‘
-on-demand is the most egalitarian reform possible without a major transformation of the legal structure of marriage. It is reasonably fair, given the role of dower, that women cannot collect dower and then proceed to divorce without any fault of the husband’s. To the extent, though, that women who have grounds for judicial divorce may be induced to forgo financial rights in order to obtain
khul‘
it could lead to injustice. Uncontested
khul‘
has faced serious resistance wherever it has been proposed, as a violation of the husband’s rights.
25
Women, it has been alleged, are too emo- tional to wield control of divorce.
26

In the case of Muslims living in the United States and other nations where Islamic law is not implemented by civil courts, the relevance of modern legal reforms is minimal; and classical Islamic doctrine matters only where individuals take it into account in extrajudicial interpersonal negotiations. While it is relatively straightforward to combine an “Islamic” marriage with a civil one – religious authorities are frequently authorized by state legislatures to perform valid civil marriages – only the civil courts may pronounce divorce. A couple married both reli- giously and civilly can be in the awkward position of being
only
civilly divorced (if the wife insists on the necessity of a divorce pronouncement that the husband refuses to make) or only reli- giously divorced, if the husband pronounces
talaq
long before the civil court takes action. For the most part, American Muslim leaders have chosen to treat a divorce pronounced by the courts as the equivalent of judicial divorce in classical Islamic law, but the coexistence of civil law with an amalgam of jurisprudential doctrines and Muslim conventional wisdom makes for a con- fusing situation. Further, for those committed to egalitarian marriages, the existence of
talaq
as a religiously acceptable insti- tution creates obstacles to full marital agency for women.

Talaq
is so problematic because it is an entrenched right connected to the legal structure of marriage as a form of
milk
, ownership or control. A husband’s power of
talaq
derived from

36 sexual ethics and islam

his exclusive control over the marriage tie, just as a master’s power of manumission resulted from ownership of a slave. Pre- modern jurists frequently drew analogies between
talaq
and manumission (
‘itq
), reflecting their shared understanding that a husband, like the master of a slave, held
milk
, “ownership,” over the tie joining the parties. This right was basic to the nature of marriage: the husband acquired a limited
milk
over his wife at the time of contract through payment of a dower, just as a master acquired
milk
through purchase of a slave; either could unilat- erally relinquish it whenever he chose. The wife, as the one bound by the marriage tie, did not share in this power of unilateral divorce (any more than a slave could simply choose to free him- or herself). Instead, her opportunities to dissolve the marriage were limited to judicial divorce for cause, grounds for which varied greatly depending on the school; delegated divorce if authorized by her husband; and
khul‘
, divorce for compensation, which was roughly analogous to a slave’s negotiated purchase of his or her own freedom. Of course, the analogy can only be carried so far: a wife was not her husband’s slave. But because the structure of the Islamic marriage contract presumes the husband’s
milk
, control, over the continuation of the marriage, piecemeal reforms of divorce laws that do not address this basic norm will be limited in the amount of change they can ultimately effect. Long-lasting and far-reaching reform of divorce requires, more fundamen- tally, a reform in the basic structure of Muslim marriage itself.