Progressive Muslims: On Justice, Gender and Pluralism (34 page)

The husband’s right to derive pleasure from his wife, in exchange for his support of her, led the jurists to grant him total control over her mobility. A man could restrict his wife’s movements in order to keep her available to himself, including forbidding her to go to the mosque or to visit her parents. The
Mukhtasar
of Shafi‘i jurist al-Muzani notes that a woman’s husband even had the legal right to forbid her to attend the funerals of her parents or her children, though the jurist preferred that he not do so; jurists from other schools held similar views.
21
A woman who left the house without permission would be guilty of
nushuz
22
– a term variously translated as “recalcitrance,” “disobedience,” or “rebellion.” The Hanafis and Shafi‘is agreed that she would lose her right to support so long as she remained unavailable to her husband, while the Malikis and Hanbalis do not directly discuss the suspension of a wife’s maintenance for
nushuz
.
23

For the Shafi‘is, a wife’s sexual refusal while remaining at home also

constituted
nushuz
and was grounds for suspension of maintenance. For the Hanafis, a wife’s sexual refusal was not grounds for loss of maintenance. However, this was because she was still considered “available” to her husband; he was entitled to force her to have intercourse.

If she is in his house but she withholds herself from him is maintenance due to her from him? It is due . . . Is it lawful for the husband to have sex

with her against her will . . .? It is lawful, because she is a wrongdoer [
zalima
].
24

These passages, in addition to illustrating the link between maintenance and a wife’s sexual duties to her husband, make clear the extent of a man’s sexual rights over his wife according to the early jurists.

Though the wife had a duty of sexual availability, she did not have a right to sex. Though today it is almost a cliche´ that Islam recognizes women’s sexuality,
25
the legal reality in the early texts is that women’s rights to sex in marriage were virtually nonexistent. In all four Sunni schools, a woman could have her marriage dissolved for impotence if the husband proved unable to consummate the marriage; she had to complain to a judge then wait for a year. In one other case, if the husband took a vow to abstain completely from sex with her for a period of more than four months (
ila’
), she could seek to have the marriage judicially dissolved on that basis if her husband continued to abstain after four months had passed according to jurists from the Maliki, Shafi‘i, and Hanbali schools. (The Hanafis considered a vow of forswearing to result in automatic divorce if not broken or expiated during the four months.)

However, after consummation, simple abstinence without a vow was not grounds for divorce in any of the four schools. Ibn Hanbal, when asked about a man who had intercourse with his wife one time, declared, “He is not impotent, and the couple are not separated. I hold this opinion even if he does not have intercourse with her again, and she has no right to request him to.”
26
The Maliki texts record the same position, as in this passage from the
Muwatta’
:

Yahya related to me from Malik from Ibn Shihab from Sa‘id ibn al-Musayyab that he used to say, “Whoever marries a woman and is not able to touch (i.e., have intercourse with) her, a deadline of one year is set for him. If he touches her, [fine], and if not, they are separated.”. . . Malik said, “However, someone who has touched his wife then avoids her (
i‘tarada ‘anha)
I have not heard that there is a deadline set for him or that they are separated.”
27

In the
Mudawwana
, Ibn Shihab states simply that “I have not heard [that] anyone [would] separate a man and his wife after he touched her, and that is practice among us.”
28
The Maliki jurists do make one exception: if the husband’s total abstinence constitutes deliberate or negligent harming of the wife (
darar
) it may be grounds for judicial divorce. (However, if the husband becomes impotent or suffers an injury that renders him incapable of intercourse, the wife has no such right.) This position reflects juristic ambivalence about a wife’s right to sex. On the one hand, it is acknowledged that depriving a wife of sex can be harmful to her; on the other hand, while “harm” is grounds for divorce (for the Malikis), lack of sex
per se
is not. This unwillingness to grant wives regular rights

to sex is part and parcel of the strict separation between male and female rights that early jurists maintained.

The jurists did, however, grant the wife a right to a portion of her husband’s time, subject to certain limitations. A man’s duty to divide his time among his wives did not prevent him from traveling or spending a portion of his time with his concubines instead of his wives. A woman had no absolute claim on his time, but rather only claim to equal treatment with her co-wives. A man with more than one wife had a duty to allot his nights between them equally, and very strict rules governed how he was to make up missed turns.
29
Some jurists recommended that he have sex with them all regularly, but despite this, there was no penalty for a husband who did not. Al-Shafi‘i voiced the consensus view when he stated that the husband’s “division (of time) is based on staying, not having sex.” He added – apparently unaware of the irony – that “intercourse is a matter of pleasure, and no one is compelled to it.” Of course, he meant that no man is compelled to it; women’s continual sexual availability was a condition of their support, and “refusal,” again in al-Shafi‘i’s words, was
nushuz
.
30

I have shown that if the wife failed in her duty to be sexually available, the

jurists agreed that she would lose her right to support. However, in the case where the failure to perform an obligation was the husband’s – if he could not support her – the jurists were divided on the consequences. If she could borrow in his name, or liquidate his assets to provide herself with support, she was permitted to do so.
31
However, even if he were unable to support her and had no property upon which she could draw, Hanafi jurists refused to grant her dissolution no matter how long the non-support persisted.
32
In sharp contrast, Shafi‘i jurists allowed a wife to seek judicial divorce after as little as three days of non-support.
33
Furthermore, during the three days he was not supporting her, she was allowed to leave the house without her husband’s permission in order to obtain what she needed through work. This vast difference in these two schools’ treatment of the non-supporting husband (the other Sunni schools fall in the middle of the spectrum between these opposites
34
) illustrates clearly that early Islamic jurisprudence was not monolithic. On topics such as this, some positions were quite favorable to women, and others were anything but. Nonetheless, these specific rules were all embedded within a system of rights and obligations based on the premise of male support for female sexual availability.

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The neo-conservatives are the most prominent faction in debates over the proper legal and social rights of Muslim women today.
35
Their views are represented in publications subsidized by the Saudi government and organizations like the Jamaat-i Islami, and distributed as pamphlets and booklets in mosques and conferences of Muslims everywhere; they are likely to be the most influential group in mosques in the West. Though they often support adherence to Islamic

law, they do not have the political zeal of the fundamentalists, nor are they seeking a return to a pristine, original law. Rather, they support the continued enforcement of law as developed by jurists through the classical period and, in its transformed form, by legislatures in Muslim nations. I have lumped together in this group both those with traditional religious education (the
‘ulama
) and those non-specialists – far more numerous – whose support for Islamic law is a matter of principle, but whose understanding of the law is derived from contemporary notions. Even though there are some differences between these groups that might warrant separate consideration, I treat them together in part because in both cases the discourses with which Islamic law is explained and justified take on a decidedly non-traditional tone. Neo-conservative authors may believe in adherence to classical legal doctrines (though, as will be seen below, this is not always the case), but they justify them with language that is, more than anything else, Victorian.

This phenomenon can be seen clearly in a treatise on
nushuz
by Saalih ibn Ghanim al-Sadlaan, a professor from the College of Shari‘ah at Muhammad ibn Saud Islamic University in Riyadh. While the author is clearly trained in the doctrines and methods of jurisprudence, and his study draws on these sources, he adopts a tone of biological determinism that is alien to classical
fiqh
discourses:

The woman is naturally conditioned and created by Allah to perform the functions of pregnancy, giving birth, and taking care of the internal affairs of the house. Man, on the other hand has been endowed with more physical strength and clearer thought and he is, therefore, more befitting to be the leader of the household and the one responsible for providing the means of livelihood, protecting the family and bringing about security and continuance in the family.
36

While the notions of male superiority and headship of the family, and even of men’s greater intellectual and physical capacities, are consonant with earlier jurisprudential treatments of spousal rights, the link the author draws between women’s capacity for childbearing and their duty to “tak[e] care of the internal affairs of the house” is not merely a restatement of traditional jurisprudential views. Rather, this formulation assimilates early
fiqh
rules about male support to a male breadwinner / female housewife model that is more in keeping with ideas about 1950s America. As the previous section has shown, this model is inaccurate to describe the early jurists’ rationale for male support of their wives. In the case of this particular work, despite the adoption of non-traditional rhetoric, the legal doctrines presented regarding its main topic,
nushuz
, are generally in keeping with the provisions of traditional jurisprudence. However, with regard to a woman’s responsibility for “taking care of the internal affairs of the house,” Al-Sadlaan departs from the established views of early jurists. His brief mention of this point illustrates a much larger phenomenon: in many cases,

what is advocated by the neo-conservatives as the “traditional” Islamic view is not in fact historically the position adopted by the early and classical jurists.

The neo-conservative treatment of housework as well as women’s work outside the home illustrates clearly the differences between early
fiqh
doctrines and contemporary apologia for them. Two examples suffice as evidence. The first is from
Marriage in Islam: A Manual
by Muhammad Abdul-Rauf.
37
First published thirty years ago, and now in its seventh printing, its chapter “A Happy Conjugal Household” gives listings of husbands’ and wives’ duties, which include the following:

A husband is responsible for the protection, happiness and maintenance of his wife. He is responsible for the cost of her food, clothes and accommodation. Although she may have to cook, he has to buy her the raw materials and cooking and kitchen facilities, as may be required and applicable.
38

The management of the household is the wife’s primary responsibility. She has to take care of meal preparation, house-cleaning and laundry. Whether she undertakes these tasks herself or has them done under her careful supervision, it is her task to manage them in the best interests of the family. She may expect some cooperation from her husband, but this should depend on what he can afford to do. What is important is the mutual goodwill and love which will no doubt stimulate each party to alleviate the burden of the other as much as possible.
39

Not only do these passages assign to women the task – meal preparation – that earlier jurists most emphatically exempted her from performing, it sets up an explicit relationship between the husband’s support of his wife and her responsibility to do cooking and other household chores. However, the author hesitates a bit: he must pay for food; she
may
have to cook it. Rather than declaring outright that the wife has to perform the listed services (a term he studiously avoids), Abdul-Rauf states that she must “take care” of these “responsibilit[ies]” and “manage” these “tasks.”
40

My second example is drawn from the much-read
Woman in Shari‘ah
by ‘Abdul Rahman Doi, a text frequently used by English-speaking Muslims as an authoritative resource on Islamic law.
41
Doi, making extensive use of biological and “natural” arguments for women’s place in the home and society, avoids any hedging around women’s domestic duties. He states, “When a wife is not employed the household becomes her first occupation. By household is meant the rearing of children and all domestic services required for maintaining a clean and comfortable habitation.” Doi goes further, however, touching on the subject of women’s work. He reserves for the husband the right to prevent his wife from working – acknowledging, though not explicitly, the authority legally granted to the husband to prevent his wife from leaving the marital home for any reason. Yet he departs from traditional jurisprudence when he states that if a man allows

his wife to work, “Any gain from work realized by the wife belongs to the family and cannot be considered as her personal property.”
42
In traditional doctrine, there is no marital property regime; the jurists never countenance a married woman’s obligation to support herself, let alone her husband or children.