How the Sharia Law Particularly Victimizes Women
By Abdur Rab and Hasan Mahmud
There are a few general things to note about the Sharia Law. First, this Law overwhelmingly influences traditional Islam as practiced by most Muslims. Second, contrary to popular perception, the Sharia Law is not really Divine Law. Its origin is traceable to a body of normative principles historically understood and developed by a group of Muslim jurists during the 8th-10th centuries, i.e., about 150 to 250 years after the death of the Prophet Muhammad. There is, however, no unified body of the Sharia Law, as different schools of jurisprudence have applied different interpretations. The vast majority – some eighty percent – of Muslims are Sunnis and they generally follow Hanafi and Shafii laws. There are more than six thousand Sharia laws in each of the Hanafi and Shafii Law books. In this paper, we will concern ourselves with these laws as they relate to the treatment of women. Third, the Sharia Law draws on the Quran only in small part, and that also in a rigid, out-of-date way. Its main source, among a total of more than eleven, is the Hadith literature, which, ironically, is overtly and overwhelmingly biased against women. It is due to the application of the Sharia Law that there is a widespread perception, especially in the non-Muslim world, that Islam promotes misogyny. However, as we will see below, the Sharia Law is a gulf apart from the core teachings of Islam as professed by the Quran.
Sharia (Aka Shariah, Shari’a) literally means “a moral path.” However, as Professor Abdullahi An-Naim of Emory University rightly observes, “two factors account for much of the confusion about the role of Sharia in the modern context: a lack of appreciation of the critical role of human agency in the conception and development of Sharia and a grossly exaggerated sense of the application of Sharia as a comprehensive, self-contained and immutable normative system in the pre-colonial period.” The Sharia Law is a largely man-made phenomenon that came to light in the Middle Age. The laws are made through FIQH, which literally means “Human Understanding.” Hence, as Professor An-Naim further notes, “the first several generations of Muslims could not have known and applied Shari’a as it came to be accepted by the majority of Muslims for the last one thousand years.”
Saudi Arabia is perhaps the closest country example where the Sunni Sharia Law is most rigidly applied and where women are particularly discriminated against. Saudi Arabia and Qatar primarily apply the Hanbali Law. Hanbali is the most conservative of the four Sunni schools and the forerunner of the Wahhabi-Salafi movement. The Saudi authorities have vigorously promoted this brand of Islam throughout the world. Eminent Islamic Law professor Khaled Abou El Fadl of UCLA has provided, in one of his books, a vivid description of how the Wahhabi ideology has caused a great distortion in Islam. This ideology treats women in a particularly degrading manner. In recent days, the problems the Saudi women face in moving and driving freely and independently without male escorts have received media spotlight. But there are other serious Sharia-related human rights violations against women that are endemic throughout the Muslim World. Below we provide a checklist of such violations.
HOW THE SHARIA LAW PARTICULARLY VICTIMIZES WOMEN
The Sharia Law severely discriminates against women mainly due to its predominant reliance on the Hadith. Though there are some passages in the Hadith, which display respect for women, these are overwhelmingly overshadowed by other texts that portray women in a particularly bad light. Some examples of such texts are that the Prophet saw that women constituted the majority of the inhabitants of Hell (Bukhhari, Vol. 7, Book 62, #124), that women are more deficient than men in intelligence and religion (ibid, Vol. 1, Book 6, #301), that women represent a bad omen (ibid, volume 7, book 62, #31) and an affliction more harmful than anything else for men (ibid, volume 7, book 62, #33), and that women are ungrateful to their husbands (ibid, Vol. 7, Book 62, #125; Vol. 1, Book 2, #28). Similar texts are also in other Hadith books, including Muslim, Tirmidhi and Nasa’i. In one of his books, Abou El Fadl cites several Hadith texts reported in Tirmidhi, Abu Dawud, Ibn Majah, Nasai, Musnad of Ahmad Ibn Hanbal, and Ibn Hibban that make God’s grace for a wife contingent on the husband’s pleasure and thus make wives virtually slaves to their husbands. Such texts are unreliable and problematic against the moral teachings of the Quran, according to which, men and women equally qualify for God’s grace, and according to which, the conception of the marital relationship presupposes mutual love, compassion, and cooperation. Below we provide a checklist of Sharia rules that discriminate against women.
Sharia Rules in Family Matters
- Sharia considers women disqualified to serve as guardians to conduct marriages. Only men are qualified to perform this service.
- Sharia requires as witnesses for marriage two males or one male and two females in lieu of one man. This provision is made keeping in view the Quranic provision for witnesses in the context-specific case of financial transactions. However, this discrimination against women is no longer justified in the modern age when women are almost as educated and qualified as men.
- Child marriage is sanctified under Sharia, presuming that the Prophet Muhammad married Ayesha when she was a six-year old child. However, modern scholars contest this assertion about Ayesha’s age when the Prophet Muhammad’s marriage with her took place. Also, child marriage is not consistent with the Quran’s advice in dealing with orphans, which mandates that marriage require sound, responsible judgment on the part of both the bride and the bridegroom (4:5-6). This Quranic direction effectively precludes child marriage. The Sharia adherents use the Quran’s verse 65:4 to justify child marriage, since this verse talks about the waiting period of a divorced wife who may not be having menstruation. However, this verse does not necessarily mean a pre-puberty child. As modern medical science shows, there may be various reasons, medical or genetic, other than pregnancy that can explain amenorrhea (i.e., a delay or stoppage of menstrual period) in adult women. So amenorrhea cannot be cited as a definitive case for child marriage. Furthermore, under the Convention on the Rights of the Child adopted in 1989 by the United Nations (in force with effect from September 2, 1990), a child is defined as a person below the age of 18, unless adulthood is set at a younger age by a particular country’s laws. The Convention calls for review by countries of ages set lower than 18.
- Sharia provides virtually unilateral power of divorce to the husband. It provides only very limited power of divorce to a wife who is required generally to go to a court to seek divorce. Furthermore, Sharia requires explicit consent of the husband for the divorce. Such restrictions on a wife intending to divorce her husband – go to a court and take the husband’s consent – prove too forbidding for an aggrieved wife. The husband is often reluctant to divorce his wife. This is tyrannical to the wife, as she has to tolerate unbearable torture of her husband in the face of his continuing refusal to divorce. These Sharia provisions are in direct conflict with the Quran’s directions that a wife should not be compelled to stay with her husband against her will (33:28, 4:19), and to her hurt (2:231), that a wife has rights similar to her husband (2:228), and that a husband needs to treat his wife in a compassionate manner (2:228, 229, 231, 65:2).
- Worse still, Sharia entitles a husband to divorce his wife instantaneously by uttering the word “talaq – I divorce you” three times and without requiring any witness. The divorce is considered valid even if the husband may utter this in a fit of rage or when drunk and does not really mean it. However, these Sharia provisions flagrantly violate the Quran’s clear directions on divorce. The Quran requires two witnesses (65:2) and a well-defined waiting period for divorce to be effective (2:228, 229, 231, 65:1, 4). In fact, the Quran even wants husbands who want to dissociate from their wives to wait four months to give them a chance to see if they would like to change their mind during this period (2:226).
- The Sharia Law stipulates that once the divorce of a wife becomes effective at the end of the iddat period, the divorce becomes irrevocable and the divorced wife cannot go back to her husband, or remarry him, unless and until the divorced wife marries another person and until that husband divorces her. Sharia makes physical intimacy a condition for this marriage, even though the Quran allows a husband to divorce his wife before touching her – see 33:49. The requirement of marriage of a divorced wife with another person as a condition for her to think of returning to her husband after her new husband divorces her is a notoriously despicable practice called halala or hilla and is prevalent in parts of the Muslim world. This condition is drawn on an untenable inference from a Quranic verse, but which is counter to the very worldview and egalitarian spirit of the Quran’s message. This condition stems from a misreading of the Quran verses 2:230 and 232 and some relevant Hadith texts. However, verse 232 urges believers to create no obstacles in the way of the divorced wife remarrying her husband, if the couple so wants. As elaborately explained by us elsewhere in an article and in a drama-video, the halala system not only misses and violates the Quran’s clear directions and egalitarian message on this, but it also exacts a terrible human cost in terms of enormous suffering inflicted on the couple willing to reunite.
- Under Sharia Law, wives divorced instantaneously get nothing for livelihood from their husbands, while those divorced normally get only three months’ provision from their husbands after divorce. Then husbands are absolved of their duty to see where they go and how they live. This does not appeal to humanity. The Quran, on the other hand, urges husbands not to take back anything that has been given to them (2:229) and to retain or release them in kindness, and not to hurt them (2:231).
- A dangerous aspect of the Sharia Law is that divorced wife is barred from taking her children anywhere without the permission of their father. The cruelty of this aspect becomes evident when one observes the plight of many divorced Iranian immigrant mothers in Canada.
- One particularly inhuman Sharia rule is that the husband’s financial support to his wife is contingent on complete obedience from her. If, however, a wife turns out to be disobedient to her husband for some reason, she forfeits all of her husband’s financial support.
- Sharia displays a patriarchal bias in dealing with child custody rights. It allows mothers custody of her children generally up to the age of seven for sons and nine for daughters. There is, however, no uniformity about the ages of sons and daughters, up to which child custodial rules should apply. Also, a mother is deprived of her child custody rights if she does not pray and when she takes a mahram husband, even though the condition of “praying” does not apply to her husband. The Quran allows separated or divorced couples to decide about child custody by mutual consultation, and it makes the husband squarely responsible for bearing the financial costs of children under mother’s custodial care, if he has financial capability (65:6-7).
- In the area of inheritance, as discussed more elaborately by us in our earlier article, Sharia rigidly applies, in most cases, the provision that the male heir should receive twice as much as the female counterpart, ignoring the spirit of the exceptions that the Quran makes about this rule and ignoring the socioeconomic background in which this rule was made in the seventh-century Arabia, when women were totally dependent on their husbands for financial and other support. As argued by many modern Islamic and feminist scholars, the socioeconomic condition for women has vastly changed in the modern context, when women are almost equally participating in contributing to the family income and welfare. Furthermore, the human rights instruments such as the Universal Declaration of Human Rights (UDHR, 1948) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979), to which all Muslim countries are also signatories, also oblige them to move toward removing all forms of discrimination against women, including in the inheritance case.
Sharia Rules in Other Areas Affecting Women
- Sharia prescribes for married persons the brutal punishment of stoning to death for adultery. Ibn Majah Hadith suggests in Vol. 3, #1944 that the Quran did have a verse prescribing the stoning punishment, but it did not get included in the Quran because the parchment that contained that verse was eaten by a goat. This story sounds ludicrous against the Quran’s claim that God Himself took the burden of guarding it from any corruption (15:9) and that He made it a book of complete guidance for humankind (16:89, 5:3). The Quran prescribes a maximum of one hundred lashes, and that also after four witnesses confirm the criminal offense (24:2). The Quran also allows the convicts to be left alone if they repent and mend their conduct (4:15). Although the Sharia stoning punishment is equally applicable to both men and women, it often goes against women since the offence is much more easily detected in the case of women, either with a DNA test or when the women involved become pregnant (The Pakistan court did not accept the DNA test). The Quran also enjoins marriages of adulterous men with adulterous women (24:3,26). If stoning to death is an applicable punishment for adultery, then the question that arises is how can they get married after death?
- Sharia permits Muslim men to have marital relationship with women of the Ahle al-Kitab (the people of the Book traditionally interpreted as Christians and Jews), but does not extend the same option to Muslim women to wed non-Muslim men. This it does by narrowly interpreting the Quran’s verse 5:5, which is addressed to men. However, as Professor Khaleel Mohammed of San Diego State University rightly contends, this Quranic verse, like other verses, is addressed to men simply because of the custom of the time. The Quran’s direction applies equally to both men and women. The Sharia restriction on women often leads to honor killings of Muslim women by their parents, when their daughters seek to marry non-Muslim men. Sharia condones honor killings, as there is a Sharia provision that parents are not liable for punishment for murders of their children. Note also that Sharia applies its narrow interpretation even to the marriage of a Muslim woman with a Muslim man and considers their marriage dissolved when he is declared an apostate. This was applied to the Cairo University professor Nasr Abu Zayd, which led the couple to seek exile abroad and leave the country.
- Sharia does not recognize testimonies from women in hudud and adultery cases, including in drinking cases, not even along with a male witness. This is a gross discrimination against women in ensuring justice in society.
- Shari’a: the Islamic Law by Dr. Abdur Rahman Doi mentions that if there is a son of the murder victim of a family, then only he, not any daughter of the victim, can claim blood-money.
- Sharia considers the marriage of a non-Muslim man with a non-Muslim woman dissolved the moment she becomes a war captive to Muslims. This consequently allows a Muslim man to possess her and have sexual relation with her without marriage. This Sharia provision literally legitimizes the raping of female war captives. The Indian promoter of Wahhabi/Salafi ideology Dr. Zakir Naik also supports such a view by his strange interpretation of the Quran’s expression “those your right hand posseses” in 4:24, even though he also mentions that the Quran encourages freeing of slaves and marrying them. The raping of slave women is incompatible with the very spirit of the Quran’s message, which vividly encourages freeing of slaves (90:12-13) and marrying them (4:25) and forbids them to compel them to prostitution without marriage (24:33).
- Under the Sharia Law, women judges are not eligible for conducting hudud This Sharia rule is ostensibly based on a Hadith that says that women are more deficient in intelligence (that implies also judgment) and religion. The Quran nowhere suggests that women are inferior to men.
- Under Sharia, it is forbidden for women to lead the umma or to head a government, this despite the Quran’s mention of rule by the Queen of Sheba (23:27) and rule by many Muslim women in different Muslim countries.
The Sharia Law makes a travesty of true Islam by ruthlessly discriminating against women in numerous ways. This is not only against the very spirit of the Quran’s message about how we should treat women; it also belies the noble example of what we know in the Quran itself about how our Prophet treated them. Such Sharia rules are also incompatible with the very norms of human decency, etiquette, and human rights that are enshrined in various United Nations declarations. Because of its brutal features particularly affecting women, Sharia has made itself deeply misogynic. It cannot really be applied to any modern, civilized society.