Sexual Ethics in Islam (9 page)

Fatawa-I-Kazee Khan
, Hanafi legal text
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The image of a husband repudiating his wife by declaring “I divorce you, I divorce you, I divorce you” has been one of the most persistent and negative stereotypes of Muslims.And while it does not tell anything resembling a complete story, this image has a basis in reality. So-called triple divorce, while widely considered blameworthy even among the earliest Muslims, is nonetheless still practiced in many places. Recent controversies over its use have erupted in India and in Malaysia. In the former case, the All-India Muslim Personal Law Board considered whether to declare that all such triple pronouncements would be considered to effect only a single divorce; in the latter case, the issue at stake was whether such divorces were valid if delivered via text mes- sage. Both situations were complicated by the intricate and multi- layered relationship between civil and religious law, a tension that exists within every Muslim community to a greater or lesser

lesser evils: divorce in islamic ethics 25

extent.
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Divorce is a contested issue for Muslims in nations where personal laws are ostensibly religious as well as in those places, such as the United States, where civil law alone holds formal sway. Why is a husband’s unilateral, and extrajudicial, pronouncement of
talaq
so meaningful to Muslims who otherwise abide by civil laws? What are the structural considerations at stake in attempts to make divorce regulations more egalitarian? How does this treatment of divorce in the writings of the jurists relate to American Muslims? The premodern case, cited in this chapter’s epigraph, of a wife whose husband has pronounced the powerful words of divorce but refuses to admit having done so, rendering the state powerless to intervene and forcing her to resort to poison to thwart his sexual advances, has surprising relevance to contemporary discussions on the relationship between individ- ual acts, ethical practice, and enforceable law.

Untying the knot

Its religious dimensions notwithstanding, Muslim marriage is, above all, a contract. Though it will persist until death if neither spouse takes action to dissolve it, a marriage can also be ended before that time. There are both good and bad reasons for end- ing a marriage, according to Qur’an,
sunnah
, and the opinions of the commentators and jurists, and good and bad ways to pro- ceed with divorce whatever the motivations behind it. It is a well accepted principle that disharmony between spouses should not lead immediately to divorce. The Qur’an advocates reconcili- ation where possible, through negotiated settlements between the spouses themselves or arbiters from their families.
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How- ever, there will be instances when mutual good treatment is not possible; in such cases, there should be an amicable parting. This negotiated settlement may involve the wife’s payment of a sum to her husband; normally, in case of
talaq
, he must not take back anything of what he gave her as dower.
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The Qur’an contains a variety of regulations concerning these and other forms of divorce (such as the now-obscure
zihar
and
li‘an
), which built on and modified pre-Islamic Arab practices.

26 sexual ethics and islam

The English term “divorce” encompasses several means of ending a marriage that are distinct in Islamic jurisprudence. The most common,
talaq
(literally, “release”), is a unilateral repudiation of the wife by the husband. This form of divorce does not require the wife’s consent, and most of the classical jurists held that it was valid even without her notification.
Talaq
can be either revocable (
raj‘i
) or irrevocable (
ba’in
). In a revoca- ble divorce, the husband has the right to take back the wife during the three menstrual cycle waiting period (
‘idda
) that fol- lows the dissolution of all consummated marriages.
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However, following the end of the waiting period from a revocable divorce (or after an irrevocable form of dissolution such as judicial divorce or divorce for compensation, on which see below), the couple can still remarry. This is the case even after two divorces. However, when the husband repudiates the wife for the third time, the divorce becomes “absolute.” In this case, the spouses cannot remarry until the wife has married another man, and that marriage has been consummated, then ended through death or divorce. Only after this can the original spouses remarry.
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Triple divorce,
talaq thalatha
, occurs when a husband pronounces three repudiations at once rather than divorcing his wife once, revocably, and simply allowing the waiting period to expire without taking her back. In this way, he immediately makes his divorce of her absolute, creating a bar to remarriage between them. The Sunni jurists generally consider triple repudi- ation, or other similar pronouncements that lead to absolute divorces (
talaq al-batta
), to be reprehensible (
makruh
). Yet even while considering such divorces blameworthy, the vast majority of Sunni thinkers – Ibn Taymiyya is a notable exception – hold that they are effective and binding. (Shi‘i jurists hold a much more restricted view of what means of divorce are legally valid, requiring, not merely preferring, the presence of witnesses, and considering only one pronouncement of divorce at a time valid. This dramatic difference illustrates quite clearly that Sunni doc- trine was the result of interpretive decisions, and could have been otherwise.
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)

Just as marriage has financial implications, so does divorce; in fact, they are closely intertwined. A wife divorced by

lesser evils: divorce in islamic ethics 27

talaq
retains the dower she received at marriage or, if it was divided into a prompt and deferred portion, the deferred por- tion becomes immediately due at divorce. Predictably, the prospect of receiving or having to pay a large deferred sum can serve as inducement or restraint on a spouse’s actions. Some women set a large deferred dower as a disincentive for their hus- bands to divorce them impulsively. However, this strategy can backfire if the wife is the one to seek a divorce. In
khul‘
, divorce for compensation, a wife returns her dower, waives the deferred portion, or pays some other sum to her husband in order to obtain a divorce. Almost all jurists consider his consent essential though it is not mentioned in the Qur’an or in some of the prophetic traditions that refer to it.
Khul‘
is by definition irrev- ocable; the husband has no right to take her back during the waiting period, though the pair may remarry subsequently by mutual consent with a new contract and dower.
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In addition to unilateral repudiation and divorce for compensation, both of which are mentioned in the Qur’an, judicial divorce (
firaq
,
faskh
or
tatliq
) becomes permissible when the wife has cause. Judicial divorce is preferable to
khul‘
for a wife who has grounds because she need not relinquish her claim to dower. Acceptable grounds for divorce vary widely among the legal schools. In the Hanafi school, which is the most restrictive, a woman has almost no grounds for obtaining a divorce provided her husband has consummated the marriage; neither failure to support her, nor life imprisonment, nor abuse is considered grounds for divorce (although she may get a sep- aration and support if she convinces a judge). If he is declared missing, she may have the marriage dissolved (on grounds of presumed widowhood) at the time when he would have com- pleted his natural lifespan, which could be as old as ninety. In contrast, Maliki law allows the most generous grounds for a woman to seek divorce including non-support, abandonment, and the broad charge of “injury” (
darar
), which can be physical or otherwise.

Women can use other legal strategies to obtain access to divorce without recourse to a judge. For instance, in conditional or delegated divorce the wife includes a condition in her

28 sexual ethics and islam

marriage contract that allows her the right to divorce on her own initiative under certain specific circumstances, or states that she will be automatically divorced if a particular event occurs such as the husband taking another wife or moving to another town. There are possible benefits to these types of stipulations, if women have the requisite knowledge and are willing and able to convince future spouses to agree to the conditions, but they are not a panacea for inequalities in traditional divorce law. The extent to which such clauses in the marriage contract are enforceable varies widely in legal schools or contemporary national laws. Further, even clauses that were originally valid can be easily rendered ineffective through the wife’s unwitting actions. More troubling still is that though these conditions can increase a woman’s access to divorce, they do not restrict in any way the husband’s right to repudiate her unilaterally at will. The increasingly influential view of marriage as a romantic rather than contractual institution often makes women unwilling to negotiate for or demand stipulations in their contracts, seeing them as a sign of bad faith.
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In any case, the inclusion of such stipulations regarding divorce ratifies the notion that unilateral divorce by the husband is valid and effective, since conditional and delegated divorces function through the mechanism of
talaq
. Thus, it is contradictory to press for such stipulations regarding divorce while simultaneously arguing that a hus- band’s right of unilateral
talaq
is not supported by the sources. If his
talaq
is not valid, then any conditional or delegated divorce right she has is equally void. (One way to avoid this conflict is to insist that the only permissible divorce is a judicial divorce; however, this raises its own set of issues surrounding the valid- ity of civil law versus religious law.)

This sketch of legal doctrine seems to provide a fairly bleak picture for Muslim wives, but a number of historians have demonstrated that in practice women have enjoyed a good deal of flexibility in obtaining divorces on favorable terms, thanks to sympathetic judges and a variety of bargaining strategies, fre- quently involving claims to dower, maintenance, and custody of children. Looking at the way “Islamic family law translate[d] into the reality of medieval marriage,” Yossef Rapoport finds

lesser evils: divorce in islamic ethics 29

that women’s economic independence, among other factors, facilitated woman-initiated divorce, although the unrestricted nature of male oaths of repudiation contributed to the high divorce rate.
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Twentieth-century legal reforms in nations such as India, Egypt, and Iran (both pre- and post-revolution) have sometimes dramatically improved women’s access to divorce and have, to a lesser extent, penalized men’s unrestricted use of
talaq
. The progress of such reforms has been hampered by con- tinual struggles over “authenticity” and the self-aggrandizing tendencies of the modern nation-state to work to bring every- thing under its control. The relationship between civil and religious marriage and divorce is complex even in nations such as Pakistan, where both are ostensibly Islamic, but for Muslims in primarily non-Muslim societies the dictates of classical legal thought, as they have trickled down into conventional wisdom, remain influential.
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Extreme circumstances

The regulations surrounding divorce that I have just outlined do not directly account for the extreme case, mentioned in this chapter’s epigraph, where Qadi Khan gives a woman permission to defend herself against her former husband’s sexual advances even to the point of killing him – discreetly:

A woman knows (that is, comes to know with certainty) that her husband has divorced her thrice; the husband denies having divorced her; and the woman has not the ability to prevent the husband from (having access to) her person: it is permissible to the woman to kill the husband; because she is helpless in preventing mischief to her person; and, therefore, it shall be allowable to her to kill him; but it is proper that she should kill him with drugs, and not with an instrument of death; because if the woman should kill him with an instrument which inflicts wound, she shall be put to death by way of
kisas
(or retaliation).
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This fatwa attempts to resolve an intractable problem. By divorcing his wife three times, the man has rendered her absolutely divorced from him, making sexual relations between them completely unlawful. However, his denial of the divorce is accepted as final.
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(The legal efficacy of his declaration is taken for granted; the reponse does not even allude to it.) What, then, may his “wife” do in this case? She is certain of having been divorced and that therefore it is no more lawful to allow her hus- band to have sex with her than it would be for her to allow a stranger access to herself; her (former) husband is at this point legally a stranger. Failing to resist him in some fashion would be morally, if not legally, tantamount to consenting to illicit sex; she has the right (or perhaps obligation) to defend herself against such an attack, even to the point of killing her would-be rapist. What might be a mundane evidentiary dispute over whether or not a divorce has occurred becomes a life or death issue.

In allowing the woman to pursue the dictates of reli- gious law and her conscience, Qadi Khan recognizes a distinc- tion between the law applied by God, which grants the woman the right to defend herself against his advances, and that fol- lowed as a matter of procedure by the state, which, bound as it is by procedural rules, is only an approximation thereof. Although the man in question is trying to have sexual access to a woman over whom he no longer has any sexual rights, he cannot be brought before the authorities as a rapist, because the law as applied by the state authorities would still recognize him as her husband. The text thus differentiates between the morally per- missible action – killing him – and the legally acceptable one.