OIC Fatwa on Domestic Violence and the Rights of Women in Islam By Mark Durie
OIC Fatwa on Domestic Violence and the Rights of Women in Islam By Mark Durie
markdurie.com
Sunday, May 29, 2011
In April 2009, the Islamic Fiqh Academy made a ruling entitled ‘Domestic Violence’. This is a highly significant document which reflects a high-level consensus of leading Muslim scholars in the world today. It was clearly issued in the context of criticisms of Islam and Muslim societies for the treatment of women.
The Islamic Fiqh Academy (IFA) was established by the Organization for the Islamic Conference in 1981. It is comprised of 43 scholars, who are elite Islamic jurists of their respective nations. Many are chief justices or grand muftis of their nations. IFA’s resolutions are in Arabic, and they can be found on their website at http://www.fiqhacademy.org.sa/.
IFA’s aims are:
to unite the Ummah (the global Muslim community, conceived of as a single nation, by conforming conduct to the norms of Islam at all levels (from individual to international);
to apply Islam to contemporary problems;
and to create a body of Islamic jurisprudence to meet the needs of modern life.
In IFA’s deliberations, issues are subjected to extensive research, with prior distribution of papers, extensive consultation and discussion, before rulings are agreed upon and issued. These rulings are very distilled. The process “allows for a Muslim to see the final opinion without having to use up time and effort considering the research consultations that may extend to hundreds of pages”.
Undoubtedly IFA speaks for the Islamic mainstream. In the words of Dr Abdul-Salam Al-Abbadi, Secretary General of IFA, it is intended to function as the ‘supreme juristic reference for the Muslim world’. Furthermore, IFA’s rulings have the backing of the OIC, which is one of the most significant groupings of states in the world today.
IFA’s fatwa or ruling on domestic violence warrants detailed study. It is not possible to do justice to it in this blog post. A translation into English is given below. A few key features are:
This fatwa represents the unapologetic assertion of the absolute authority of the sharia over all understandings of human rights as they apply to women and the family, specifically including international human rights conventions and covenants. Islamic states are instructed to ignore every article of any convention or covenant which is inconsistent with the sharia.
The fatwa upholds the right of a husband to beat his wife: wife-beating is specifically excluded from its definition of ‘domestic violence’, as long as the beating conforms to sharia requirements. The memorable phrase ‘non-violent beating’ is coined to express this perspective. Note also the implied threat which warns against ‘slander’ in the context of resolving marital disputes (implying that a woman must not criticize her husband).
Here are some hadiths of Muhammad on wife-beating from Sunan Abu Dawud:
• Muhammad: ‘When one of you inflicts a beating, he should avoid beating the face.’
• Muhammad: “A man will not be asked as to why he beat his wife.” – this principle means that a man cannot required to answer to a sharia court for beating his wife.
• Muhammad: “Do not beat your wife as you beat your slave-girl.”
• Muhammad: “They are not the best among you.” – said of women who complained to Muhammad when he gave permission for their husbands to beat them.
This fatwa also upholds the right of a husband to rape his wife, for it is not ‘domestic violence’ for a man to insist upon his conjugal rights (section 2(F)). The key term ihsan ‘preservation’ is very difficult to translate into English. It is derived from the root h.s.n which means to fortify or make something inaccessible by building a fortified wall around it. A ‘fortified’ woman is a married woman who has a husband to protect her. He also has conjugal rights over her (as she is kept inside his fortress). The meaning of ihsan is defined by Lane as: ‘With the lawyers, ihsan means the act of coitus conjugalis in a case of valid marriage.’ This fatwa is written in legal language, so what 2(F) is saying is that it is not domestic violence for a Muslim man to ‘fortress’ his wife, and force her to have sex with him, even if she is unwilling.
The fatwa also upholds the right of a male guardian to contract the marriage of a virgin female (2(H)): he has the right to marry her to another. Muhammad said that a virgin gives permission to a marriage ‘by her silence’: in practice this often means the guardian has the sole say over who she will marry.
The fatwa also implicitly upholds the sharia’s laws concerning the treatment of adulterers (2(A)).
The fatwa endorses a husband’s guardianship over his wife: this means that he legally controls her in many respects.
There is implacable opposition to principles of equality between the sexes.
The right of women to move around freely in public without a supervising male is rejected as contrary to sharia law.
The fatwa upholds sharia law’s non-reciprocal approach to divorce, which make it easy for man to divorce his wife, but very difficult for a women to obtain a divorce, except through a difficult legal process. (In fact Arabic has two different words for these: a divorce initiated by a man, and one initiated by a woman are regarded as two quite different things.) If a man divorces his wife, this is halal ‘permitted’ – although disprefered – but if a woman divorces her husband without “just cause”, this is a mortal sin:
• Muhammad said: “If any woman asks her husband for divorce without some strong reason, the odor of Paradise will be forbidden to her.” (Sunan Abu Dawud).
This fatwa implicitly upholds many other aspects of sharia law which are opposed to women’s rights. An example is the rule that if a woman sues for divorce for excessive beatings, she must return the brideprice he paid for her (i.e. she must pay him to win her divorce). Another is the shockingly humiliating law that a woman irrevocably divorced by her husband can only remarry him after she has married another, had sexual relations with the new husband, and been divorced by him (or he dies first). These regulations, and the way in which they work to deny women basic rights of safety and equality before the law have been well-documented by others and can be found in Islamic legal texts, but deserve to be better known. This fatwa upholds such conservative time-honored principles of sharia law without conceding an inch to modern understandings of human dignity or human rights.
I find it quite incredible that this fatwa has been in circulation in Arabic for two years, and it is backed by the most eminent and credible of Muslim jurists, yet western human rights activists and feminist scholars appear to have paid it no attention whatsoever.
Does the status in sharia law of hundreds of millions of Muslim women attract such little interest?! Are the intellectuals of the West really so morally depraved? Do our silences not tell the truth about who we are? Have we really become so heartless and cruel? I would warmly welcome any information which could lead me to revise this assessment for the better. (Suggested improvements to the translation from Arabic are also warmly welcomed.)
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THE TRANSLATION
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Domestic violence.
The Council of the International Islamic Fiqh Academy, an offshoot of the Organization of the Islamic Conference, held its nineteenth session in the Emirate of Sharjah (United Arab Emirates) from 1-5 Jamadi I, 1430 AH (April 26-30, 2009).
After reviewing the research brought to its attention on the subject of domestic violence, and after listening to discussions on the the subject, and after considering established religious principles for the necessity of establishing the family on the great basis of affection and love, and the provision of legislation which achieves stability and tranquility, and considering that deviations from this approach spread violence in the family, [the Council] have decided the following:
1. the concept of domestic violence
What is meant by violence is acts or words of violence committed by a family member against another member of the same family, which are characterized by severity and cruelty causing physical or mental harm to the family or one of its members, such conduct being prohibited [haram] because it contravenes the objectives of Sharia law for the protection of the soul and mind, and because it contradicts the Lord’s order, which is based on kindness and righteousness in relationships.
2. [the following] are not considered to be violence or discrimination from the Islamic perspective:
(A) Adherance to sharia rulings governing marital relationships, and the prohibition of illicit conjugal unions.
(B) Denying access to contraceptives for illegally married couples.
(C) The prohibition of abortion, except in exceptional medical cases determined by the sharia.
(D) The criminalization of homosexuality.
(E) A husband forbidding his wife from travelling alone, except with his permission and in accordance with the sharia.
(F) The legal Islamic right of husband and wife to abstain from evil and “preservation” (ihsan), even if one of them is unwilling.
(G) The women’s primary role in caring for children and the family home, and the husband’s responsibility of stewardship [i.e. maintenance and guardianship].
(H) Legal guardianship over a virgin female in (entering into a contract for her) marriage.
(I) What the shari’s has established regarding the division of inheritance and wills.
(J) Legal divorce in accordance with the shari’a.
(K) Polygamy based on justice.
3. The Islamic approach of settling marital disputes
When settling marital disputes, especially regarding a disobedient wife who has exalted herself against her husband [i.e. she disobeys him] the following Islamic legal standards are to be observed:
(A) Avoid insults, defamation and slander.
(B) Follow the sharia in dealing with the wife, commencing with preaching [admonishing her], then [sexual] abandonment [of the wife], and ending with non-violent beating, which [can be defined as] almost waving it without doing it. To resort to [beating] is the opposite of what is preferred, for [Muhammad] said: “those of you who are the best, shall not beat”, and [one should] follow the example of his action, that he did not ever beat a woman.
(C) Resort to the judgment of two people when the dispute is exacerbated.
(D) Resort to the divorce system in accordance with rules established by sharia regulations (for revocable divorce, major or minor irrevocable divorce, and times of its occurrence), and regarding it as the worst of the halal [what is permitted] from Allah.
4. The council determines as follows
(A) At the level of the family:
i. Focus on bringing up children in a faith-based manner, as a pathway for nurturing them socially;
ii. Emphasize established rules of the sharia related to the construction of the family, such as cooperation, affection, compassion, kindness, righteousness, and kindness between the spouses.
iii. Adopt dialogue to resolve internal family issues.
(B) At the level of official institutions and departments:
i. Hold periodic workshops to raise the awareness of families about the risks of violence, and to establish the dialogue approach.
ii. Require educational institutions to teach [material which] addresses issues of domestic violence in its various forms and manifestations.
iii. Coordinate between relevant ministries and departments to adopt a unified and consistent policy, to preserve the fundamental principles of the nation [ummah] in the face of the westernizing trends aimed at the family.
iv. Provide guidance for the media to assume its responsibilities in a framework for the right path to social development.
(C) At the level of Muslim countries:
i. It is necessary to submit all international conventions regarding women and children, as well as draft laws, to sharia specialists and legal scholars, before they are issued and signed into law. [They are] to be weighed against the sharia: what conflicts with the provisions and purposes of the sharia is to be rejected. It is necessary to call upon Islamic governments to review agreements that have been signed, to identify articles which are inconsistent with the sharia, and to reject those articles, without negating positive aspects which do not contradict the sharia.
ii. Reject any articles of international agreements and conventions which are contrary to the provisions of sharia law: [such as] call for the abolition of innate differences between the roles of men and women in society and advocate for full equality between male and female in all degrees of inheritance, and abuse the divorce system in the Islamic sharia, calling for the abolition of supremacy of men over the family, and other things which are established in the Islamic sharia.
iii. Reject all clauses contained in agreements which permit the violation of Islamic laws and natural instincts, such as allowing same sex marriage and sexual relations outside of a legal marrage, and mixing [of the sexes] in a way which is legally prohibited, and other clauses which contradict the provisions of the Islamic sharia.
iv. Call upon all legislative bodies to enact laws that criminalize all forms of violence between family members, on the grounds that sharia law has forbidden such acts.
v. Limit executive authority to the relevant judicial authorities.
vi. Emphasize a commitment to preserve the specifics of Islamic culture and sharia rulings, and respect the reservations of Muslim governments and their representatives concerning clauses which contradict Islamic law in covenants and conventions related to the family.
vii. Form a committee to prepare a code to regulate the rights and duties of members of the family, which will lead to the drafting of a Family Law Code compatible with Islamic law.
Mark Durie
markdurie.com
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