Position of woman in Shari'ah – 3

Position of woman in Shari‘ah – 3

1994 7 July 17-31 Position of woman in Shari‘ah – 3 (4445)

REMARK OF THE CHIEF JUSTICE

Giving his verdict in the Muhammad Ahmad – Shah Bano Case,1 Mr. Y V Chandra Chud, Chief Justice of the Supreme Court, has written a special note in which he says:

1. Criminal Appeal No. 103-1981 - dated April 23, 1985.

Some questions which arise under the ordinary civil and criminal law are of a far-reaching significance to large segments of society which have been traditionally subjected to unjust treatment. Women are one such segment. “Na stree swatantramarhati” (The woman does not deserve independence), said Manu, the law giver. And, it is alleged that the ‘fatal point in Islam is the degradation of woman.’ To the Prophet is ascribed the statement, hopefully wrongly, that ‘woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore, treat your wives kindly.

I would like to make it clear that the phrase in this passage, ‘hopefully wrongly’ does not mean that this saying has been wrongly attributed to the Prophet. It means rather that although the Prophet said that the woman is born of a ‘crooked rib,’ those who want to establish equality between man and woman should take heart, as this saying of the Prophet was contrary to the fact. This phrase of the Chief Justice is meant to deny the statement itself and not the attribution.

Only a man of law can give a final opinion as to the relevance of this remark of the Chief Justice from the purely legal point of view, but it is certainly not correct from the academic point of view. He has quoted this saying of the Prophet to support his claim that Islam advocates the unjust treatment of a segment of society. Whereas, on the contrary, this saying enjoys men to treat women with justice. The remark of the honourable Chief Justice does apply to Manu’s statement, but it does not apply at all to the sayings of the Prophet.

When it has been clearly stated that women should be treated gently, how can it be claimed, that unjust and unfair treatment of women was advocated in a saying of the Prophet, (as it clearly was in Manu’s dictum).

So far as a woman’s being like a rib is concerned, mention of this is made only to support fair treatment of women rather than the reverse. It has been clarified above that this was only an example. In view of the particular psychology of women, it was cited to show that if she was subjected to rough treatment, it would go against her nature and would result in perversion rather than reform.

In this saying of the Prophet the likening of woman to the rib was a simple metaphor. The misunderstanding arose because of the biblical statement was brought in to explain it. While this saying had nothing to do with the biblical conception of women, what has been said in the above hadith is a natural fact which has often been expressed in different ways, as in the words of Matthew Arnold: ‘With women the heart argues, not the mind.’

CORRESPONDENCE

In response to the remark made by the former Chief Justice, Mr. Chandra Chud, in his verdict on the Muhammad Ahmad-Shah Bano case, we sent him a letter which is reproduced on the next page.

May 14, 1986

Mr. Y V Chandrachud

Ex-Chief Justice

A-503 Som Vihar R.K. Puram

New Delhi 110022

Dear Mr. Chandrachud,

I am taking the liberty of addressing myself to you because, on going through your verdict on the Muhammad Ahmad-Shah Bano case, I find that one of the statements you make casts unfair aspersions on Islam. You allege that women have been ‘traditionally subjected to unjust treatment, and that the ‘fatal point in Islam is the degradation of woman.’ To support this, you quote Manu as having stated that woman did not ‘deserve independence,’ and the Prophet of Islam as having said, ‘Woman was made from a crooked rib, and, if you try to bend it straight, it will break; therefore, treat your wives kindly.’

While Manu’s dictum bears out your statement, I must point out that you have badly misquoted the Prophet. Nowhere in the Hadith is it stated that woman was made from a crooked rib, this being an ancient Biblical version of God’s creation of human life. The word ‘rib’ was used by the Prophet in a purely metaphorical sense and his actual words were: ‘Woman is like a rib, if you try to straighten her out, she will break, so treat her kindly.’

The Encyclopaedia Britannica states: ‘With respect to personality traits, men are characterized by greater aggressiveness, dominance and achievement motivation, women by greater dependency, a stronger social orientation and the tendency to be more easily discouraged by failure than men’ (19/907).

Presumably the Prophet, with his great understanding of human nature, had a fine intuitive grasp of the fundamental, biological and psychological differences between men and women, particularly the latter’s fragility and passivity – and, for this reason, found it necessary to admonish lesser men to treat their wives kindly.

I fail to see how ‘the degradation of women’ can ensue from such an injunction. It would be fitting, to say the least, if you were now to retract, or amend, your statement, now that this point has been clarified.

I remain,

Yours faithfully,

Wahiduddin Khan

President, The Islamic Centre

As is clear from the preceding discussion, this remark of the Chief Justice is wholly baseless from the academic point of view. But what is stranger still is the fact that when we drew his attention to this by this letter, he did not care to reply. We sent him this letter for the first time on 17 April, 86, by registered post. Having received no reply we sent a copy of this letter to him again on May 14, 1986, but again he did not respond. Then, after trying several times, we succeeded in contacting him on the telephone. We asked for an appointment with him, so that we could discuss this matter with him, but he excused himself and refused to comply with our request. Now we have no choice but to publish this letter without his reply.

SUMMARY

God ‘created man’s mate from the same soul’ means simply that women are of the same species as men. God created them that way so that there should be harmony between the two sexes. If men and women had been derived from different species-if one had been made from fire, for instance, and the other from earth – then the two would have been unable to get on together. Family life would have lacked peace and harmony; men and women would have been unable to struggle hand in hand to build a better world.

As for the saying of the Prophet likening women to a rib, it is a parable illustrating the need to treat women gently on the basis of their particular, natural constitution. The Prophet Muhammad delivered this advice time and time again, in different words, and it is something that he himself practised throughout his life.

In the time of the Prophet, women used to attend the night prayer, and sometimes they used to take their small children along with them. The Prophet used to pay special attention to strict and full observance of prayer. Yet so great was his consideration for women that sometimes, when he heard babies crying, he would cut short the prayer. He once said: ‘Sometimes I stand up for prayer, my intention being to make it a long one. Then I hear a baby crying. So I cut short the prayer, not wanting to make things difficult for the child’s mother.’ I

1. AI-Bukhari, Sahill, Kitab as-Salah, (Fath al-Bari, 2/160).

THE STATUS OF WOMAN

In Islam, a woman enjoys the same status as that of a man. In the words of the Qur’an, ‘You are members, one of another.’ 2 There is no difference between man and woman as regards status, rights and blessings both in this world and in the hereafter. Both are equal participants so far as the carrying out of the functions of daily living is concerned. If Islam stresses the division of labour between the sexes rather than sexual equality, it is because it does not countenance the idea of either sex suffering from the feelings of degradation and inferiority resulting from any imitation of the opposite sex. As the Prophet once observed: ‘Those men are cursed who try to resemble women, and those women are cursed who try to resemble men.’3

2. Qur’an,3:195.

3. AI-Bukhari, Salt ill, Kitab al-Libas, (Fatll al-Bari, 10/273).

The biological division of human beings into male and female is the result of purposeful planning on the part of the Creator. And there can be no human progress without constant respect being shown for this division. Any attempt to cross the dividing line laid down by the Almighty is akin to breaking down the whole system of nature, a procedure which can lead only to destruction.

Man and woman in the eyes of Islam are not the duplicates of one another, but the complements, there being in each quite incontrovertible, biological differences which lead to the natural separation of sphere and occupation. This division of labour permits the shortcomings of one sex to be compensated for by the strengths of the other.

Islamic precepts for men and women are based on their respective, natural constitutions. It is now an established biological fact that there is a difference in their physiological structure, a difference which gears men to work which is external to the home, and women to a life led mainly indoors within the home. This biological difference has not only been the determining factor in the societal division of labour, but has also necessitated the framing of special Islamic laws to ensure justice for both sexes.

THE CONTRACT OF LIFE

The relationship formed by marriage in Islam is described in the Qur’an as a ‘firm contract.’1 It is exactly the same as any ordinary contract in that it is bilateral in nature; where it differs is in its spelling out of the rights and responsibilities which bind a man and a woman together in a vital partnership, making them companions for life. There is a saying of the Prophet Muhammad on this subject: ‘Beware, your women have rights over you and you have rights over your women.’ 2

1. Qur’an, 4:21.

2. Ibn Majah, Sunan, Kitab an-Nikah, l/593.

WOMAN – SOURCE OF GOODNESS

Here are some verses from the Qur’an and some traditions which elaborate on this point.

Live with them on a footing of kindness and equity. If you take a dislike to them, it may well be that you dislike a thing which God has meant for your own abundant good.3

3. Qur’an, 4:19.

This verse draws our attention to the fact that nothing is perfect in this world and that apparent imperfection may conceal some virtue. If in certain respects a woman is imperfect, there will be other respects in which she is perfect: it is her plus points, rather than her minus points, on which attention should be focussed. Only those can succeed in the outside world who have learned this lesson at home, that is, seeing light where there is darkness and discovering plus points along with minus points. Therein lies the secret of success in the modern world.

MOTHER IS MORE HONOURABLE

According to Abu Hurayrah, a man once came to the Prophet and asked him:

‘O Messenger of God, who rightfully deserves the best treatment from me?’

‘Your mother,’ replied the Prophet.

‘Who is next?’ asked the man.

‘Your mother,’ said the Prophet.

‘Who comes next?’ the man asked again.

‘Your mother,’ replied the Prophet.

‘Who is after that?’ insisted the man.

‘Your father,’ said the noble Prophet. 1

1. AI-Bukhari, Sahih, Kitab al-Adab (Fath al-Bari, 10/329-330).

The projection of woman as the most honourable human being in the form of a mother makes it quite clear what sort of a society Islam wants to create. It is one in which a woman is, accorded the maximum honour and respect. A member of such a society, who shows full respect to a woman as a mother will, of necessity, become more and more caring in regard to other women. With the creation of such a mentality, women in general will share the status accorded to a mother at home.

FREEDOM OF EXPRESSION

The second Caliph, ‘Umar ibn al-Khattab, once while addressing a gathering asked them to refrain from fixing heavy dowers in marriage. On hearing this, a woman stood up and, addressing the caliph on the pulpit said, as God Himself has said, ‘If you have given much wealth to your women do not take anything from it.’ On hearing what the woman had to say, ‘Umar withdrew his words, saying, ‘The woman is right, ‘Umar is wrong.’1

1. Ibn Hajar al-’Asqalani, Fath al-Bari, 9/167.

Here was a common woman cirticising the ruler of an empire, and the latter withdrawing his words. The right of absolute freedom of expression as we find in this incident, is a clear indication that woman has been granted her full rights in Islamic society.

HOME MANAGEMENT IS NOT AN INFERIOR TASK

A certain woman called Nasibah once came to the Prophet Muhammad and said: ‘0 Messenger of God, Men have excelled in meriting the rewards of the Hereafter. They join the Friday prayer, attend congregations and perform jihad. Then what is left for us women to do?’ The Prophet replied, ‘0 Nasibah, if your manner of living with your husband is proper and obedient, such conduct in itself is equal to all the actions performed by men, which you have just mentioned.’ 2

2. Kanz al- ‘Ummal, 16/411.

In modern times, as a result of perverted thinking, managing a home is considered inferior to work done outside the home. But Islam gives the same place of honour to both kinds of work, it being a fact that both are equally important. On this score, neither man nor woman need have a superiority or an inferiority complex.

THE IMPORTANCE OF WOMAN IN THE CONSTRUCTION OF SOCIETY

According to Jabir ibn ‘Abdullah, the Prophet once observed: ‘The throne of Iblis (Satan), the chief of the devils, is situated above the seas, whence he sends his bands to lead human beings astray. To Iblis, the most worthy of the devils is the one who causes the greatest wickedness. The devils visit him as their chief to report their deeds to him,’ and Iblis gives a hearing to all of them. On one occasion, Iblis remained unimpressed with their achievements, until one of the devils came and told him that he had pursued a husband and wife until he managed to separate them. He had achieved this by causing them to have doubts and misgivings about one another. Iblis was so overjoyed to hear this that he drew him to him in a close embrace, saying, ‘Yes, you did it,’ meaning that he had really managed to lead human beings astray.’ 1

1. Muslim, Sahih, Kitab Sifat al-Munafiqin wa Ahkamihim. 4/2167

This hadith shows that Satan’s greatest weapons in perverting human society are the conflict and discord which he creates between a husband and wife, resulting in their separation.

In ancient times, this phenomenon was not widespread, only a very limited number of people being afflicted by the evil of separation. However, in modern times the whole human race has come to be affected by exposure to new and misguided ideas about the freedom of woman and on unnatural equality of the sexes. It is as a result of these artificial concepts that the marital state has come to be looked down upon in developed societies, and men and women have begun to opt increasingly for divorce, even on the most minor provocations. In the wake of such divorces, a number of evils have followed, not the least of which is their baneful effect on the children, who, in a state of bewilderment at the separation of their parents, often join gangs of criminals. Then the discarding of family bonds has given rise to a general atmosphere of permissiveness, which in turn has resulted in the spread of fatal diseases. The widespread loosening, or even destruction of family bonds has become the greatest problem afflicting modern societies.

When the rot of perversion sets in at home, the whole of society is affected and, ultimately, it is the entire nation which has to bear the brunt of it. The only reason for this widespread moral degeneration is the violation of the sanctity of marriage, which has come to be regarded as an unwelcome bond.

WOMEN IN POSITIONS OF POWER

A film called ‘Kisses for my President,’ made in Hollywood in 1964, tells the story of a married, American woman who is elected the U.S. President. She almost immediately becomes pregnant and finds herself faced with so many problems because of this that she decides to leave the presidential home and go and live in her own home. Finally she resigns from the office of president. Even the modern world still finds it unimaginable that a woman should be given a high government office. In a poll taken in 1972, the majority of American voters said that they would rather have a black man than a woman as president. The idea of a woman president was ridiculed. Someone joked: ‘When the lady president delivers her child, the hospital bulletin will have to announce that “the President and baby are doing well.’” 1

1. Time magazine, March 20, 1972.

Opinion polls were conducted on this particular issue in 1987 in the U.S. Reuter reported from Washington that according to a poll conducted for a women’s rights group, nearly one third of American voters believed men to be better suited than women to the role of U.S. President. The study released by the National

Women’s Political Caucus (NWPC), said only eight per cent of those polled believed a woman could do better than a man in the White House, 40 per cent said there was no inherent difference between the sexes, and 31 per cent believed men made better presidents. The poll, conducted by the Washington-based HickmanMaslin political research firm, showed that women were credited with being more capable of dealing with social issues, such as poverty, health care, education, drug abuse, and civil rights. 1

1. The Times of India (New Delhi), August 14, 1987.

The Persian emperor, Chosroes died during the life of the Prophet. His courtiers crowned Chrosroes’ daughter queen. On hearing this news, the Prophet said: ‘A nation which makes a woman its ruler will not make progress.’ 2

2. AI-Bukhari, Sahih, Kitab ai-Maghazi, (Fath ai-Bari, 8/104-105).

The researches of the modern age now testify to the truth of this time-honoured principle laid down by Islam. Fourteen hundred years ago, Islam held that a woman was not fit for so high a position as that of a sovereign. While, until very recently, this could have been regarded as a mere assertion made a very long time ago, today it is accepted as a scientific fact. What the Prophet had said as a matter of inspiration has now been established, after a long period of study and research, as a reality. This is clear proof that Islamic principles are based on facts of nature and not just on supposition and conjecture.

THE TESTIMONY OF WOMAN

The testimony of two women is regarded as equal to that of one man. While dealing with matters of debt, the Qur’an says:

When you contract a debt for a fixed period, put it in writing. And call in two male witnesses from among you, but if two men cannot be found, then one man and two women whom you judge fit to act as witnesses; so that if either of them forgets, the other will remember.’1

1. Qur’an, 2:282.

Recent research has testified to this law mentioned in the Qur’an as being perfectly natural. A UPI report quotes a Soviet scientist as saying that ‘men have a greater ability to memorize and process mathematical information than women, but females are better with words.’ Speaking to the Tass news agency, Dr Vladimir Konovalov said that ‘men dominate in mathematical subjects due to the peculiarities of their memory. The stronger sex shows greater difficulties in processing and adapting language material.’ 2

2. The Times of India (New Delhi), January 18, 1985.

As indicated in the Qur’anic verse initially quoted, whenever there is to be any delay in payment after the conclusion of a business transaction, there must be witnesses to this, either two men. or one man and two women. The phrase ‘so that if either of them forgets the other will remember’ makes it quite clear that in such credit dealings, what has to be considered next in importance to justice is memory. When biological studies have shown a woman’s memory to be weaker than a man’s, it is quite in accordance with the facts of nature to stipulate that there should be two female witnesses in place of one man. This command thus sets a value upon memory per se. This is a matter of practical requirement, and does not discriminate against women or grant superiority to men.

AN ADDITIONAL, NOT A SUPERIOR QUALITY

Here is a verse of the Qur’an which reads: ‘Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other.’3

3. Qur’an, 4:34.

Fadilah is the Arabic word used in the scriptures to indicate the additional, masculine quality of protectiveness. For a household to be properly run, it should, of necessity, have a guardian. Guardianship is rightly entrusted to the family member who is best qualified to undertake this responsibility – namely, the husband, for protectiveness is a virtue which has been granted by nature in greater measure, to men than to women. Far from mentioning absolute masculine superiority, the above-quoted verse only implies that man is the master in the home because of the additional attributes with which he has been endowed by nature.

Faddala ba’dahum ‘ala ba’d is an Arabic expression meaning ‘excelled some on other,’ ‘which occurs several times in the Qur’an. For instance, various kinds of crops and fruits grow from the same soil and water. Of this the Qur’an says: ‘And in the land, there are adjoining plots: vineyards and com fields and palm-groves, the single and the clustered. Yet We make some excel others in taste. Surely in this there are signs for men of understanding.’1

1. Qur’an, 13:4.

The following is an excerpt from a commentary on this verse by ‘Abdullah Yusuf’ Ali, well known commentator on the Qur’an: ‘The date palm, the crops of food grains, and the grape-vine are all fed by the same kind of water: yet how different the harvests which they yield! And that applies to all vegetation. The fruit or eatable produce may vary in shape, size, colour, flavour, etc. in endless variety.’2

2. ‘Abdullah Yusuf’ Ali, The Holy Qur’an: Text, Translation and Commentary, p.673.

All commentators on the Qur’an have placed emphasis on this difference and variety, rather than on some fruits being superior, in an absolute sense, to some others. That is to say, each fruit has some particular quality to it as regards colour, and taste, which is not found in other fruits. Similarly there are differences between men and women. Just as women have uniquely feminine qualities, so also do men have uniquely masculine qualities.

That is why God enjoins us not to be jealous of others’ qualities:

Do not covet the favours by which God has exalted some of you above others. To men is allotted what they earn, and to women what they earn.’ 1

1. Qur’an, 4:32.

That is, each has been blessed with different sets of attributes. So what others have should not make one jealous. On the contrary, one should avail of whatever talents have been bestowed upon one and, in the process, make a positive contribution to family and social life.

It is a fact that women are not physically as strong as men, but their physical weakness in no way implies their inferiority to men. The eyes are the most delicate parts of our body, while the nails by comparison are extremely hard. That does not mean that the nails are superior to the eyes.

Just as two different kinds of fruit will differ in colour, taste shape and texture, without one being superior or inferior to the other, so also do men and women have their different qualities which distinguish the male from the female without there being any question of superiority or inferiority. If men and women have been endowed with different capacities, it is so that they will play their respective divinely pre-determined roles in life with greater ease and effectiveness. Certain feminine abilities will be superior to certain masculine abilities, and vice versa, simply because their natural spheres of application are different. Success in life for both men and women can be attained only if they devote themselves to the particular set of activities which has been pre-ordained for them in God’s scheme of things.

SENSELESS WORD OF A WOMAN

Nadira Begum Qurayshi from Bilaspur in Maharashtra (India) was divorced by her husband after the birth of a daughter. She petitioned the court to be entitled to receive a monthly maintenance allowance from her former husband. According to a newspaper report when asked why in the matter of maintenance, she chose to follow in the footsteps of Shah Bano of Indore, (Under Section 125, Cr. P.c.) she retorted, ‘What has Islam done for me that I should follow its tenets?’ Neither the judge nor the lawyers were able to persuade Mrs. Qurayshi to withdraw her case. She rejected Mr. Qurayshi’s offer to take her and her daughter back. She then called upon the court to order her former husband to give her a Rs. 500 monthly allowance. Unlike Mrs. Shah Bano, she is young, just thirty years of age, and a graduate.

But her attitude is not that of an educated person and the answer she gave certainly showed her ignorance of her religion, she would have realised that whatever women have today is the gift of Islam. Even a woman having the temerity to question publicly what Islam had done for her is also due to Islam. Prior to its advent, a woman being bereft of all status, would not have dared to speak freely in public.

(TO BE CONTINUED)