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Islamic Family Law: Emerging Paradigms
Lynn Welchman
I was asked to propose a paper addressing in some way “the fundamental
principles of Islamic family law and family life”. The challenges of such a proposition
in a paper of this length and a forum of this nature are evident, and they start from the
vigorous contestation of its key terms that is ongoing in current scholarship and
activism. In 2009, a twelve-strong ‘planning committee’ of Muslim academics and
activists from eleven different countries launched, in Kuala Lumpur, a ‘global
movement for equality and justice in the Muslim family’ with the following
statement:
We hold the principles of Islam to be a source of justice, equality, fairness
and dignity for all human beings. We declare that equality and justice are
necessary and possible in family law and practice in Muslim countries and
communities. 1
The website heading adds: ‘The time for realising these values is now.’ The
movement, facilitated by the Malaysian women’s rights NGO Sisters in Islam, is
called Musawah (‘equality’ in Arabic) and argues – broadly – that contemporary
Muslim family laws fail to realise the Quranic requirement of justice, with its
contemporary inclusion of gender equality as a critical component; and that these laws
also fail to reflect the ‘lived realities’ of Muslim families across the globe.
Along with its invocations of principles such as justice and compassion, the
Qur’an has a significant amount of material on marriage and family, developed as
briefly discussed below by the jurists into detailed rules governing family
relationships. The second source of law for the jurists was the Sunna, the words and
deeds or practice of the Prophet Muhammad: among these, “Marriage is my Sunna”
and “marriage is half of religion” indicate and for many underpin the significant place
of marriage and family in Muslim jurisprudence and – very broadly speaking – in
Muslim societies. Parents, children, ascendants and descendants, siblings and those
entrusted with the care of those without immediate family are linked in an interdependent web of solidarity and support;2 in its own frame of reference, Islamic law
is very positively pro-marriage and pro-family.
Given the constraints on time and space in this paper, I have chosen to focus
on the construction – or articulation – of the husband-wife relationship in ‘Islamic
law’ and specifically the equation that sets the husband’s duty of support, or
maintenance, of his wife, as the exchange for the wife’s obedience to her husband.
The postulate of a husband’s legal authority over his wife is one that will be familiar
to those who study the development of other legal systems; it is a paradigm that is
currently challenged not only in activism but increasingly in legislation in Muslim
majority states. By way of laying the ground in a comparative forum, I begin below
1
‘Musawah. For Equality in the Family.’ Musawah Framework for Action, Kuala Lumpur: Sisters in
Islam, 2009, p.2. See http://www.musawah.org/
2
REF
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with a consideration of some of the contestations in scholarship of the ‘meanings’ of
‘Islamic law’ and its relationship particularly to women in the family. I then look at
the paradigm of the husband’s authority (qiwama) over his wife in jurisprudence and
pre-modern practice, moving from there to the maintenance-obedience equation in
Arab state family law codifications. I end with a comparison of the way in which
Morocco and the United Arab Emirates (UAE) deal with this issue in their recent
codifications.
Scholarly Understandings of ‘Islamic family law’
Going back to my brief for this paper, I would say that equality and justice
certainly qualify as ‘fundamental principles’ and that the Musawah focus on family
law and practice stands as a sort of a milestone marking where we are now in terms of
understandings of ‘Islamic family law and family life.’ The Musawah movement
comes after some four decades of signal change not only in activism for women’s
rights in public and private life, but in scholarship on what ‘Islamic family law’ was
and is (normatively and practically), and what it meant and means in the lives of those
apparently governed by it. In an important contribution in 1999, Annelies Moors
lucidly analysed how in the study of Islamic family law, disciplinary shifts to legal
anthropology, socio-legal studies and women’s and gender studies, and the changing
profile and positioning of scholars have variously expanded, challenged and nuanced
academic understandings of this law in its ‘traditional’ or ‘classical’ and ‘premodern’ applications and social practice, its ‘translation’ by colonial powers, and its
current meanings and practices. 3 Moors opened her piece with a reflection on a 1968
contribution entitled ‘The Eclipse of the Patriarchal Family in Contemporary Islamic
Law’ by Norman Anderson, who was Professor of Oriental Laws in my own
department at SOAS, and then one of the most eminent scholars writing in English on
Islamic family law and specifically the codifications that had been promulgated up till
that point in different Muslim majority countries. 4 His article reviewed a series of
reforms to classical Islamic law contained variously in those codifications,
constraining male authority and privilege in the areas of marriage guardianship,
polygyny, the marital relationship, divorce, and inheritance, to underpin the assertion
in his title. A total eclipse of patriachy’s sun in Muslim family laws by 1968 could
hardly be argued, but if Anderson intended rather a partial and gradual shading, his
assertion fits with the observation made by Chibli Mallat in his 2007 Introduction to
Law in the Middle East, in a chapter he entitles ‘Family Law: The Search for
Equality’, considering ‘the depiction of the logic of family law reform in the Muslim
world of the twentieth century’:
In the Tocquevellian axioms of the age of equality – gradual, universal,
and irreversible – can be found the fundamental principle against which
developed the codification of family law in countries with a significant
3
Moors, Annelies, ‘Debating Islamic family law: legal texts and social practices,’ in Margaret C.
Meriwether and Judith E. Tucker (eds), A social history of gender in the modern Muslim Middle East
(Boulder, 1999) pp.141-175.
4
Anderson, J.N.D., ‘The Eclipse of the Patriarchal Family on Contemporary Islamic Law,’ in J.N.D.
Anderson (ed), Family Law in Asia and Africa (London: Allen and Unwin) 1968, pp. 221-234. For a
review of Anderson’s work in this field and a selected list of his publications, see Ian Edge, ‘Panacea
or Chimaera: Islamic Law Reform Over the Last Fifty Years,’ in Edge (ed), Comparative Law in
Global Perspective (Ardsley, NY: Transnational Publishers) 2000, pp. 325-344.
2
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population of Muslim citizens: the equality of women and men before the
law. 5
The two 21st century Arab League state codifications that I consider later in this paper
stand at what are currently opposite ends of the spectrum of this logic of Muslim
family law development in the region. But to return to the contribution by Annelies
Moors: her main concern was to challenge the assumption made by Anderson and
other scholars of his time in considering ‘family relations as the outcome of the
provisions of Islamic law,’ 6 whether classical jurisprudence or the texts of twentieth
century statute. Her examination of both methodology and substantive findings on the
former led her to conclude that:
Studies published since the late 1970s have pointed to the flexibility of
classical Islamic law, have unearthed a wealth of sources that provide
insight into the strategies that women from different backgrounds
employed, and have modified the notion that there ever was one
monolithic, rigid, and unchanging patriarchal family, either in doctrine or
in practice. 7
Thus, Moors critiques both the depiction of doctrine as rigidly patriarchal and
unchanging, and the inattention to practice in earlier Western scholarship on Islamic
family law: did ‘family law’ as presented reflect ‘family law’ as lived? Even so, she
notes, ‘women’s options were, generally, more limited than men’s.’ 8
To turn now to a mid-twentieth century (1955) presentation of Islamic family
law from an eminent Muslim authority, Muhammad Abu Zahra, then Professor of
Law at the University of Cairo and a very eminent scholar of Islamic jurisprudence.
Professor Abu Zahra was one of a set of authorities invited by a committee in the
USA to contribute to a volume entitled Law in the Middle East: Origin and
Development of Islamic Law. 9 Abu Zahra’s contribution was translated from the
Arabic for an English-speaking audience. His opening paragraph defines Islamic
family law for that audience:
“Family law,” as used here, means those laws upon which the Muslim
family is founded and which govern the relationship among its members.
It includes laws relating to marriage, to the rights of children and relatives,
and to the finances of the family, including expenses, the distribution of
inheritances, bequests, waqfs, and related matters.10
Abu Zahra’s definition of ‘family law’ here suggests a foundational and
constitutive role for the law in the life of the Muslim family, although later in his
piece he does comment upon practice (in Egypt) that is ‘not required by law’ – the
5
Mallat, Chibli, Introduction to Middle Eastern Law (Oxford: OUP) 2007; p. 355.
Moors, p142.
7
Ibid p.149.
8
Loc cit. She then proceeds to examine scholarship on the impact of women’s legal status of family
law reform.
9
Khadduri, Majid and Herbert J. Liebesny, Law in the Middle East: Origin and Development of
Islamic Law (Middle East Institute, Washington DC) 1955.
10
Abu Zahra, Muhammad, ‘Family Law’, in Khadduri and Liebesny 1955, pp. 132-178, at p.132.
6
3
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bride’s family undertaking the furnishing of the matrimonial home, as well as on
practice in dower arrangements. 11 His overview commences by briefly introducing
the reader to the different schools of Islamic law and then proceeds to consideration of
a set of concrete areas, summarising the majority positions of classical jurisprudence
and interjecting updates from Egyptian statutory law where relevant. These areas are,
in relation to marriage: the drawing-up of the marriage contract; impediments to
marriage; ‘woman’s freedom to choose a husband and the question of suitability’
(covering the role of the marriage guardian in the marriage of an adult woman and the
doctrine of kifa’a, the ‘suitability’ of the husband) 12; stipulations in the marriage
contract; the dower; support (maintenance); obedience; and termination of the
marriage contract. 13
Unlike Anderson, differently positioned and writing at the end of the sixties,
Abu Zahra does not explicitly deal with the issue of male authority in Islamic family
law - let alone ‘patriarchy’, a term which as observed by Moors was somewhat ‘selfconsciously’ used by Anderson - and the manner in which reforms to date had
constrained it or otherwise. There are times when an explanation appears called for
but is not given, notably when he sets out the rules on a Muslim man being allowed to
marry a woman from one of the ‘revealed religions’ and a Muslim woman being
allowed to marry only a Muslim man; here he explains why ‘pagan’ women are not
lawful wives for Muslim men but omits to expand on the wider constraints on Muslim
women. 14 Again, although he does enter into some explanation of the different
schools’ rules on guardianship in the marriage of an adult female, 15 he does not deal
with the ‘whys’ of guardianship being vested in males. Indeed, that these questions
were needing or deserving of explanation may not have occurred to him, at the time
and within the particular brief to which he was writing. He addresses in a similarly
matter-of-fact manner the spousal relationship in his two sections dealing with
maintenance and obedience – the issue to which we now turn.
Male authority, maintenance and obedience in marriage
Most (although not all) current codifications of Muslim family law maintain
the elements of the husband’s obligation to maintain his wife - encompassing food,
clothing and shelter, with no call in law on the wife’s own financial means and
property – and the wife’s corresponding obligation to obey her husband, in a
formulation that Moors describes as the ‘gender contract.’16 Lama Abu-Odeh refers to
11
Abu Zahra, op cit, p.144 and p.142.
See Ziadeh, Farhat, ‘Equality (Kafa’ah) in the Muslim Law of Marriage,’ AJCL (1957) pp.503-517
for a discussion dating from the same period.
13
In a later section on the ‘financial organization of the family’ he gives a definition of ‘the term
“family” (usra) in Islam’ that includes ascendants, descendants, collaterals, and those aunts and uncles
with ‘moral and material rights.’ Ibid p.158.
14
Ibd p.136.
15
Whereby for the majority of schools an adult woman need the consent of her marriage guardian (or
by default the court) for at least her first marriage, while the Hanafis allowed her to marry on her own
authority but empowered the guardian to seek dissolution of the marriage should her chosen spouse not
be the ‘equal’ of the male members of her family under the doctrine of kafa’a.
16
Moors, Annelies, Women, Property and Islam. Palestinian Experiences 1920-1990 (Cambridge:
CUP) 1995.
12
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a ‘legal structure of gendered reciprocity (husbands maintain and wives obey).’17
Judith Tucker for her part considers the rights and duties of spouses as ‘contained, in
large part, in the twin doctrines of nafaqa (maintenance) and nushuz
(disobedience).’ 18
The detailed rules that came to form part of ‘Islamic law’ on this formula – as
on other matters - were the results of the efforts of the jurists of the different schools
of Islamic law, working from the primary sources of the Qur’an and the Sunna, the
rulings and practice of the Prophet Muhammad as transmitted in narrative reports
(hadiths) collected in what came to be regarded as authoritative form towards the end
of the ninth century CE. 19 Compared to other areas of law, scholars have noted a
relatively large amount of primary material that relates to family law, and the efforts
of the jurists of succeeding generations resulted in a voluminous jurisprudence. The
primary source of the jurisprudence on the ‘gender contract’ is in what Barbara
Stowasser calls ‘the pivotal Qur’anic verse on gender relations’ and which she
translates (in relevant part) as follows:
Men are in charge of [are guardians of/are superior to/have authority over]
women (al-rijalu qawwamuna `ala l-nisa’) because God has endowed one
with more [because God has preferred some of them over others] (bi-ma
faddala Allahu ba`adhum `ala ba`din) and because they spend of their
means (wa-bi-ma ‘anfaqu min amwalihim). Therefore the righteous
women are obedient, guarding in secret that which God has
guarded…. 20(Sura 4:34)
Stowasser’s alternate readings/translations shown in brackets indicate some of
the complexities of ‘understanding’ the text of the primary document of Islam and,
subsequently, rendering its ‘meaning’ into ‘law’ (the shari`a, as expounded through
the fiqh – jurisprudence – of the scholars). 21 This first phrase of the verse (‘men are in
charge of women’) is a major basis for doctrines of ‘men’s qiwama over women’
where qiwama means authority or leadership. The understandings of this and the
following references to God’s ‘preference’ (taken as for men) were developed (with
other sources) by key medieval jurists into a broad doctrine of “men’s ‘guardianship
17
Abu-Odeh, Lama, ‘Modern Family Law, 1800 – Present. Arab States,’ in Su`ad Joseph (general ed),
Encyclopedia of Women in Islamic Cultures Vol. II (The Hague: Brill) 2005, pp.459-462, at p.460.
18
Tucker, Judith, Women, Family, and Gender in Islamic Law (Cambridge: CUP) 2008, p.50.
19
For the majority Sunnis; the collections of the minority Shi`a were slightly later.
20
Stowasser, Barbara, ‘Gender Issues and Contemporary Quran Interpretation,’ in Yvonne Haddad and
John Esposito (eds), Islam, Gender, and Social Change (Oxford: OUP) 1998, pp. 30-44, at p.33. The
remainder of her translation of the verse reads: ‘As to those from whom you fear rebellion, admonish
them and banish them to separate beds, and beat them. Then if they obey you, seek not a way against
them. For God is Exalted, Great.’ Here ‘rebellion’ is the translation for nushuz, the term that came to be
used in various Arab family law codes to refer to the ‘disobedience’ of the wife. In the Qur’an, nushuz
is also used in reference to male conduct, and arguments are now made that it should be taken only to
refer to rebellion or disobedience to God. See further below on the husband’s enforcement options.
21
For an argument as to the significance of making the distinction between fiqh as the human result and
shari`a as the original message, in the specific context of arguments for Muslim family law reform, see
Ziba Mir-Hosseini, ‘Towards Gender Equality: Muslim Family Laws and the Shari`ah,’ in Zainah
Anwar (ed) Wanted: Equality and Justice in the Muslim Family (Kuala Lumpur: Sisters in Islam and
Musawah) 2009 pp. 25-27. A slightly different construction of the distinction is in Mashood Baderin,
International Human Rights and Islamic Law, (Oxford OUP) 2003 pp.33-34.
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of’ or ‘superiority over’ women”. 22 Writing in 2009 on a set of issues to do with
women, eminent Egyptian scholar Dr `Abd al-Mu`ati Bayumi observes that:
It is strange that certain of our ancient interpreters [of the text] held that
giving qiwama to men over women in the family meant the preferment of
man over woman absolutely, and of all men over all women. 23
This had relevance not only for authority in the family but in public life, as
articulated in the bodies of doctrine developed by the jurists and constituting, as fiqh,
the source of rules for practitioners of the law. It is not possible to review in this paper
the complex interpretative methodologies employed down the centuries to draw these
and indeed other understandings from this verse and its relationship to others in the
Quranic text and Prophetic practice. 24 It is important to note however alongside the
contributions of other modernist thinkers we now have a ‘new wave’ of scholars
investigating the source texts in what has been termed an approach of ‘feminist
ijtihad’, 25 and that together a rather different set of understandings of Sura 4.34 and
related texts is being presented, often giving priority to the insistence in other Quranic
texts on the equality of men and women.
In traditional jurisprudence, however, together with the doctrine of wilaya
(‘guardianship’), the principle of qiwama appears to have functioned as sort of ‘legal
postulate’ within the overall framework of ‘shari`a’ (or rather the fiqh that articulated
the understandings of it) in the sense presented by Japanese comparative law scholar
Masaji Chiba in 1986 as a value system that serves to orient and justify official or
unofficial laws. 26 Thus, even if restricted to the field of family law, the link with
men’s ‘spending of their means’ (taken as normative/prescriptive rather than
descriptive) relates qiwama to the family guardian’s role in women’s marriage, to the
wife’s duty of obedience and the husband’s of maintenance, and to the structure of
divorce law that gave husbands the right to unilaterally dissolve the contract of
marriage while requiring wives – in the absence of an agreement negotiated with their
husbands - to establish grounds for judicial divorce as recognised variously by the
different schools of law. 27 An abiding social connection with divorce rights among
significant sectors in Egypt was illustrated in the public debates that surrounded the
22
Stowasser p.33.
Bayumi, `Abd al-Mu`ati, Min qadaya al-mar’a (Women’s Issues), (Cairo: CEWLA) 2009, p.57. Dr
Bayumi is a member of the Islamic Studies Academy at Cairo’s prestigious al-Azhar University, one of
the foremost centres of Islamic study and sciences, and a former Dean of the Faculty of Religious
Sciences. It is worth noting here that this piece by Bayumi is published by the Centre for Egyptian
Women’s Legal Aid, a well known NGO that works on the promotion and protection of women’s
rights. CEWLA’s general director is a member of the Steering Committee of Musawah.
24
Stowasser 1998 presents a concise and focussed examination of some of these by way of introduction
to contemporary approaches, including those of modernists, Islamists and Islamic feminists.
25
I use ijtihad here to mean the application of independent interpretation to these texts rather than the
derivation of particular judicial applications from existing scholarly consensus on such interpretation.
26
Chiba, Masaji, ‘Introduction’ in M. Chinba (ed), Asian Indigenous Law in Interaction with Received
Law (Princeton: Princeton University press) PAGE
27
In an example of the new ways of thinking about the Quranic text cited, here, Aziza al-Hibri calls on
Muslims to “rediscover the truth of the Quranic Equality Principle”: ‘Islam, law and custom: redefining women’s rights,’ 12 American University Journal of International Law and Policy 1997 pp144, at p.34. This piece includes an in-depth consideration of Sura 4.34 as well as women’s rights in
certain Arab state codifications. More recently see Amina Wadud, ‘Islam beyond Patriarchy through
Gender Inclusive Quranic Analysis,’ pp.95-112 in Anwar (ed) Wanted supra.
23
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promulgation in the year 2000 of a law about which scholar Oussama al-`Arabi wrote
under the title ‘women may divorce at will.’ 28 The relevant provision provided that
where a woman’s husband refused to consent to a divorce by mutual agreement, she
may ask the court to rule for the divorce instead, without proving particular grounds
but provided that she incorporate in her petition formal statements (drawing on
particular Quranic phrases) as to the impossibility of the marriage continuing and
returns the dower that she received from her husband as well as waiving any
remaining financial rights. Senior scholars at al-Azhar articulated ‘total rejection’ of
this provision when it appeared in draft, inter alia because ‘the right of qiwama …
was ignored in the provision.’ 29 An opinion survey carried out among a sample of
involved professional elite found as one of the reasons for objection by a ‘substantial
minority’ (40%) of respondents was that ‘[t]he new law casts doubt on the concept of
qiwama in the relationship between the man and the woman.’ 30
To return however to the particular manifestation of qiwama in the
maintenance-obedience formula in the marriage contract. For the traditional jurists,
maintenance is the prior obligation, and is due the wife when she is or becomes
‘available’ for sexual intercourse which is rendered lawful by the contract. Ziba MirHosseini, an Iranian scholar-activist working in the UK (and a founding member of
the Musawah Steering Committee) thus observes that the jurists held the ‘main
purpose’ of the contract to be ‘to make sexual relations between a man and a woman
licit.’ 31 Setting aside as ‘moral’ (and therefore unenforceable) other injunctions
regarding spousal (and indeed other human) relationships in the Qur’an, Mir-Hosseini
argues that the jurists articulated the legal rights and obligations in a marriage as:
Revolv[ing] around the twin themes of sexual access and compensation,
embodied in the two concepts tamkin (obedience; also ta`a) and nafaqa
(maintenance). Tamkin, defined in terms of sexual submission, is a man’s
right and thus a woman’s duty; whereas nafaqa, defined as shelter, food
and clothing, became a woman’s right and a man’s duty. 32
Abu-Odeh similarly describes the wife in the medieval marriage as the
‘provider of sexual pleasure (obedience) in return for her right to maintenance.’ 33 It
might be noted here that, as is familiar from not exactly ancient debates in Western
countries also, the construction of a wife’s sexual ‘submission’ as arising from the
marriage contract continues in different Muslim majority countries – in highly
politicised debates over the importation of ‘Western values’ and other matters – to
challenge efforts by women’s rights groups to have rape within marriage criminalised.
28
Arabi, Oussama, ‘The Dawning of the third millennium on shari`a: Egypt’s Law no.1 of 2000, or
women may divorce at will,’ Arab Studies Quarterly 16:1 (2001) pp. 2-21.
29
Fawzy, Essam, ‘Muslim personal status law in Egypt: the current situation and possibilities of reform
through internal initiatives,’ in Lynn Welchman (ed), Women’s Rights and Islamic Family Law.
Perspectives on Reform (London: Zed Books) 2004, pp.15-94, at p.61 and p.62.
30
Ibid p.74. Antagonism to the insertion of a general delegation to the wife of the husband’s power of
unilateral talaq, through a stipulation in the marriage contract, may be attributable to the same
concerns. See Welchman, op cit, p.102.
31
Mir-Hosseini op cit (2009) pp.23-63, at p.28.
32
Ibid p.31.
33
Abu-Odeh op cit p.459. It might be noted here that in traditional fiqh the wife also had rights to
sexual relations with her husband, which the schools of law assessed differently.
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The medieval jurists differed in their findings on what measures the husband
was entitled to take in the event of his wife refusing him sexual access, including
analysing the final part of Sura 4:34, which was used by some jurists (although not
all) to sanction physical chastisement. 34 But both the requirement for the wife to be
sexually available to her husband, and arguably the more general understandings of
qiwama, led to restrictions on the wife’s movement; she was not allowed to leave the
marriage home without her husband’s consent (with exceptions for emergencies,
visits to her family, and to manage her own property), and other requirements such as
her general demeanour towards her husband and his family and her management of
the marital household and upbringing of the couple’s children were also variously
articulated. 35
In pre-modern practice, it appears that the wife’s presence in the marital home
was the manifestation of obedience with which the courts concerned themselves
when considering enforcement of the sanction of suspension of her maintenance
rights, rather than her conduct within it. Even then, Tucker found that ‘it was rather
dramatic defiance’ that would lead jurists to concede a husband’s petition for
suspension of maintenance, giving one example of a year’s absence. 36 Nor did she
find ‘anything in the court records to suggest that husbands could forcibly return their
wives to the marital home.’ 37 Generally, Tucker found that in Ottoman Syria and
Palestine, ‘almost all litigation surrounding maintenance focused on the husband’s
inability to pay’ – that is, wives seeking enforcement through the courts of their
husband’s duty of maintenance of themselves and their children. This duty was taken
very seriously; Ingrid Mattson points out it was a major focus of juristic effort from
the earliest times. 38 Nevertheless, despite the juristic differences on other sanctions,
the apparently active protection of a wife’s right to maintenance and the parallel
protection of her right to her independent property, ‘nushuz could not but be a
defining concept for marital relations, inscribing dominance and submission in the
marital relationship.’ 39
Maintenance and Obedience in the Codifications of Arab States
This concept was to remain in place when the application of Muslim family
law was dramatically altered through the codification processes that began in the
Muslim world in the nineteenth century. In this period of its encounter with the
Western imperial powers, the Ottoman Empire looked inter alia to the law to bolster
its own declining authorities. Family law was not subjected to the codification
process until the very end of empire, but the Ottoman Law of Family Rights (1917)
was applied to varying extents under the rule of Western powers established at the end
of the 1914-18 war in Ottoman successor states in the Arab East. In Turkey however
the Ottoman law was abandoned shortly after its promulgation by the new Turkish
state, which in 1926 adapted a version of the 1912 Swiss civil code to govern family
relations without formal or official reference to shar`i rules or assumptions. In her
34
Tucker, op cit, 55. See above note 19.
See generally Stowasser; and Tucker 53.
36
Tucker, op cit, 64.
37
Loc cit. See also Amira Sonbol, ‘Ta`a and Modern Legal Reform: a rereading,’ Islam and ChristianMuslim Relations, 9/3 198, pp. 285-294.
38
Ingrid Mattson, ‘Law: Family Law, 7th-late 18th Centuries,’ EWIC II pp.450-457.
39
Tucker, op cit, 56.
35
8
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1995 examination of North African family law reform processes, Ann Elizabeth
Mayer makes the following revealing comment relevant to the issue under discussion
here:
When definitions of marriage in Maghribi laws are placed beside those in
Western laws prior to the most recent modernizing reforms or those in
Turkish law after Westernization, one notices striking similarities, such as
the emphasis on the husband being the head of the family and the wife
owing him obedience. 40
The Turkish law with its direct influence from Europe aside, Mayer
emphasises that ‘the wife’s duty of obedience finds support in the legal traditions on
both sides of the Mediterranean.’ 41 The significance of the twentieth century state as
the key actor in the formulation of statutory laws to apply to matters of Muslim
personal status is emphasised by those writing on women and the law; Sonbol insists
that ‘state patriarchy’ is the critical challenge to those seeking to better protect
women’s rights in the family and the key informing ideology (or perhaps another
legal postulate?) that guided states in their ‘selection’ of which rules from traditional
fiqh to include in their new codifications of Muslim family law. 42 Another
development associated with the new power of the centralised state, and apparently
quite distinct from pre-modern practice, was a matter of enforcement: in a number of
states the courts were empowered to instruct the police to enforce a court order
holding the wife to be disobedient and requiring her to return to the marriage home.
Tucker considers the history of such procedure to be:
an interesting instance in which a modern innovation, calling upon the
repressive apparatus of the state to enforce wifely obedience, took on the
aura of tradition without, in fact, enjoying backing or precedent in Islamic
legal theory and practice. 43
In the 1950s, first national codifications of family law were issued in a number
of newly independent Arab states, and while some of these have seen significant
amendments or indeed – as in Morocco in 2004 – entirely new laws, others have
followed with first-time codifications, including the UAE in 2005. 44 Of codifications
in the 1950s, the 1956 Tunisian law was widely regarded as the most radical in terms
of protection of women’s rights in the family, notably for its prohibition (and later
criminalisation) of polygyny, its unequivocal positioning of divorce as a judicial
process and equalising of the grounds of which spouses could apply. On the other
hand, the original text left intact the basics of the ‘gender contract’ by requiring the
wife to obey her husband, adding that she was to ‘heed him as head of the family,’
40
Ann Elizabeth Mayer, ‘Reform of Personal Status Laws in North Africa: A Problem of Islamic or
Mediterranean laws?’ Middle East Journal 49/3, 1995, pp.432-446 at p.440 CHECK PAGE NO.
Mayer includes a consideration of the Code Napoléon (1804) and its influence on the states of the
Mediterranean.
41
Ibid p.11.
42
Sonbol op cit; and see also ‘Women in Shari`a Courts: A Historical and Methodological Discussion’
27 Fordham International Law Journal (2003) 225-253. See also generally Tucker (op cit) and
Annelies Moors, ‘Public Debates on family law reform’ Islamic Law and Society 10,1 (2003) pp.1-11.
43
Tucker, op cit, 75. See also Sonbol, op cit, 290.
44
See generally Welchman, Women and Muslim Family Laws in Arab States: a comparative overview
of textual development and advocacy (Amsterdam University Press) 2007.
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and to undertake her marital duties ‘in accordance with custom and usage,’ while
recognising that ‘the wife participates in maintaining the family if she has means.’
Jurisprudence under this law held that the husband was under an obligation to
maintain his wife even if she was a salaried worker, nor did the fact that the wife
contributed to the household expenses mean that he was exempt; only his poverty
excused him in this regard. 45 Writing closely upon its promulgation, Anderson found
that the original Tunisian text on maintenance ‘corresponds closely with the parallel
provisions in the Turkish Code and the code of the Turkish Cypriots, based as they
both are on the Swiss Code.’46
The other Arab codifications also maintained the maintenance-obedience
formula. 47 Some summarise the obedience element as the wife’s duty to obey her
husband ‘in lawful matters’, to co-habit with him in the dwelling he has prepared and
to move with him should he relocate or travel, provided the court finds no good
reason for her to refuse (for example his ill-treatment of her). Other codes (notably in
North Africa but also in the first-time codification in the Gulf states more recently)
addressed the relationship by way of lists, often including three separate provisions:
one on mutual rights and duties of the spouses, one on the rights that the wife could
demand from her husband and one on those that the husband could demand from his
wife. Scholars such as Abu-Odeh and Sonbol argue that such listings are very much a
construction of the codes, and constitute a take on ‘the family’ informed by the
modern patriarchal state (and in some cases its historical encounter with Western
colonial powers) rather than a re-articulation of classical approaches. 48
The issue of obedience and its relation with the wife’s waged employment
outside the home was addressed in subsequent decades as the laws reflected the
impacts of social and economic changes on family life in the region. Here, while
assuming the wife’s waged work not to constitute nushuz, the formulations tended to
require the husband’s consent, or to allow him to require his wife to cease working if
this was found to be against the ‘interest of the family.’ 49 At the same time, with the
development of the women’s rights movement, more attention was focussed in civil
society on the terms of the marriage contract among other family law matters. The
wife’s duty of ‘obedience’ was challenged; al-Hibri observes that “[a]s elaborated by
traditional jurists of the various major schools, this concept is perhaps the most
degrading to the Muslim woman.” 50 Forcible execution by state enforcement
agencies of obedience rulings was dropped from the laws; many now explicitly rule
out such coercion. State laws codified the wife’s right to insert stipulations into the
marriage contract limiting particular expectations of ‘obedience’. 51 The first Arab
state to drop the wife’s duty of obedience from its statutory law was the then People’s
Democratic Republic of Yemen, which in 1974 under its socialist vision also
allocated the spouses equal financial responsibilities, each according to his or her
45
Al-Sharif, Muhammad al-Habib, Majallat al-ahwal al-shakhsiyya: juma` wa ta`liq, (Soussa: Dar alMizan li’l-Nashr) 1997 55.
46
Anderson ‘The Tunisian Law of Personal Status’ 7 ICLQ (1958) pp.263-279 at p. 270.
47
See Welchman 2007 93-99; Tucker, op cit, 73-74.
48
Abu-Odeh 2005; Sonbol 1998.
49
See Welchman, 97. Mayer (op cit) summarises the change to such provisions brought about after a
challenge by a working woman to the Supreme Court brought about a ‘historic ruling’ in 1990 (p.44).
50
Al-Hibri 1997, p.18.
51
See Welchman op cit pp.99-102.
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means. 52 In similar thrust the following year the Somali law likewise equalised
maintenance obligations according to means, but still specified that the wife was to
submit to her husband’s authority unless there was a legal reason not to. 53
Over the years a major challenge for those seeking reform of the maintenanceobedience formula as articulated in the laws remained the critical importance of the
‘maintenance’ part of it. The husband’s financial obligations remain extremely
significant, even when the enormous impact of socio-economic change undermines
the functioning of the gendered roles as scripted in the laws. 54 The volume of
maintenance claims submitted by women to the courts, for themselves and/or their
children, testifies to the continuing significance of this obligation, both as part of
women’s protective strategies and as an economic reality in family life, constituting a
primary reason for women’s recourse to the courts. 55 My own research in the
Palestinian West Bank showed that maintenance claims submitted by wives for
themselves and/or their children constituted an absolute majority of all litigation cases
in the shari`a courts studied. 56 The ‘reality of different women’s lives,’ and the
tenacity of the legal script on related areas of law (such as inheritance entitlements)
mean that activists do not necessarily call for the removal in law of the husband’s
responsibility for maintaining his wife and family. 57 Abu Odeh has suggested that the
goal of women’s substantive (as compared to formal) equality might require a
position in statutory law where ‘men maintain and women do not obey.’ 58
Some might consider that the 2004 Moroccan law takes precisely the approach
proposed by Abu-Odeh. In the meantime, in 1993 Tunisia went some way to
addressing the challenge of the fiqh maintenance-obedience formula. 59 In a major
amendment to the original law, reference to the wife’s duty of obedience was
removed. Most of the previously spouse-specific duties were made mutual under what
52
This did not survive in the 1992 family law of unified Yemen, which reinstated the maintenanceobedience formula.
53
Somalia (1975) article 33(2); in article 4 the definition of marriage describes ‘a contract between a
man and a woman equal in rights and responsibilities’ while ‘the husband is considered the head of the
family by virtue of the law.’ See further below on the issue of the ‘head of the family’ elsewhere.
54
See Kandiyoti, Deniz, ‘Bargaining with Patriarchy,’ Gender and Society 2.3 (1988) pp.274-290.
55
Welchman, Beyond the Code: Muslim family law and the shar`i judiciary in the Palestinian West
Bank (The Hague: Kluwer) 2000 380; Wurth, Anna, ‘Mobilising Islam and Custom against Statutory
Reform: bayt al-ta`a in Yemen,’ pp.289-308 in Baudouin Dupret and Francois Burgat (eds) Le shaykh
et le procurer. Systèmes coutumiers et pratiques juridiques au Yémen et en Égypte (CEDEJ:
Egypt/Monde Arabe no.1 – 3 série) 2005 at 292-3; Shehada, Nahda, ‘Women’s experience in the
shari`a court of Gaza City. The multiple meanings of maintenance,’ Review of Women’s Studies 2
(2004) 57-71.
56
Welchman 2000 op cit p.380. I studied the court records of Bethlehem, Hebron and Ramallah shari`a
courts for the years 1965, 1975 and 1985.
57
WLUML, Knowing our Rights: women, family, laws and customs in the Muslim World (Lahore:
WLUML, 2003) p. 22; see their discussion at 217-221.
58
Abu Odeh, Lama, ‘Egyptian Feminism: Trapped in the Identity Debate,’ pp.183-211 in Yvonne
Haddad and Barbara Stowasser (eds), Islamic Law and the Challenges of Modernity (Walnut Creek
2004) p. 205. See also Abu-Odeh 2005 p.462 where she warns that a ‘trade-off’ whereby women forgo
the husband’s absolute duty of maintenance ‘in return for abolishing the rule of wifely obedience’
might ‘prove costly for poor women.’
59
Libya’s 1984 law makes no mention of obedience in its listing of the wife’s and husband’s rights,
and requires the husband to maintain the wife unless he is incapacitated, in which case she is obliged to
provide their maintenance if she is able. On the other hand, it is the husband’s right that his wife have
‘concern for his repose and his emotional and mental equanimity’, and that she supervise and organize
the marriage home. See further Welchman 2007 95.
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Sharif terms the ‘new concept of cooperation’ 60 but critically, the husband is to
‘maintain the wife and children in his capacity as head of the family,’ while the wife
‘shall participate’ in maintenance if she has means, the language indicating an
obligation. 61 Women’s rights activists welcomed the removal of the reference to ta`a
(obedience), but were more critical of the remaining reference to custom and usage,
considering it to evoke outdated social patterns and practice. There is also criticism of
the identification of the husband as ‘head of the family’ which, as DargouthMedimegh observed, may be ‘faithful to Muslim tradition’ but was also ‘common to
all Western legislation before the sixties’. 62 Hafidha Chekir remarked in 2000 that “it
is essentially in Arab-Muslim countries that the husband is still the chef de famille.”63
Opposite ends of the spectrum? The ‘gender contract’ in the laws of Morocco and
the UAE
The first decade of the 21st century saw something of a flurry in the
promulgation of family laws in different states of the Arab League. Among them, in
Morocco in 2004, following decades of activism on the part of women’s rights groups
and vigorous opposition from Islamist groups, a new family law was approved by
Parliament after substantial initiative from the King, replacing its previous 1957 text
and subsequent amendments. The 2004 law attracted considerable regional and
international intention for reference to Morocco’s international human rights
commitments and its broadly egalitarian treatment of the spouses as the family unit. 64
Indeed, the achievements of this law seem to have been among the factors that
inspired the formation of the Musawah network cited at the beginning of this paper.
The following year, the Gulf state of the UAE promulgated its first codification of
Muslim family law, with an altogether more traditionalist approach. In the following
paragraphs I compare the way in which these two laws deal with the ‘gender contract’
of maintenance-obedience. 65 We begin with the definition of marriage:
Morocco: Marriage is a shar`i agreement/contract (mithaq) of mutual
consent and attachment between a man and a woman on the basis of
permanence, its purpose chastity and modesty and the founding of a stable
family under the charge/in the care of (ri`aya) the two spouses in
accordance with the provisions of this code. 66
UAE: Marriage is a contract that renders lawful each spouse’s sexual
enjoyment of the other, its purpose chastity and the founding of a stable
family under the charge/in the care of (ri`aya) the husband, on bases that
60
Sharif 1997 47. On the ‘unusual’ fiqh position to which a wife’s financial obligations might be
attributed, see Abu Zahra 1955 145; and Anderson 1958 276.
61
Article 23 1956 as amended 1993. See Sharif 1997 47.
62
Dargouth-Medimegh, Aziza, Droits et vécu de la femme en tunisie (Lyon 1992) p. 54.
63
Chekir, Hafidha, Le statut des femmes entre les texts et les resistances (Tunis: Chama 2000), p.141.
64
There is a considerable literature (in English as well as in Arabic and French) on this law and on the
processes that led up to its promulgation, and some attention to the manner of its implementation so far.
65
The texts and the quotations from the clarifications thereon are my own translations from the Arabic,
although English translations of the Moroccan law have been produced and are available online.
66
Law no.70-03 on the Family Code, Ordinance no.1.04.22 of 3 February 2004. Official Gazette
no.5184 of 5 February 2004 p.417. Article 4.
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secure for the two of them the bearing of the family’s burdens in love and
compassion. 67
There is much to comment on here, but the most obvious perhaps is the
assignment in Morocco of the care or charge of the family to the married couple,
rather than, as in the UAE, to the husband. The UAE definition is closer to traditional
fiqh conceptions in relating the contract’s immediate effect to the lawfulness of sexual
relations between the couple, as well as in its allocation of authority in the family to
the husband. In both laws the significance of ‘chastity’ is the marital fidelity of each
spouse to the other – this is not affected, in the case of the man, by his relations with
another wife under the rules on polygyny still applicable in both countries, albeit
severely restricted under the new law in Morocco. The final phrase of the UAE text
invocates of the Quranic injunctions of ‘love and compassion’ (rahma wa mawadda),
articulated as expectations for the conduct of the marriage on the part of both spouses.
These ‘key Quranic values’ are among those cited by Musawah in the call for equality
and justice in Muslim family law development. 68 The same phrase is used in the
Moroccan law in its articulation of mutual rights of the spouses.
We turn now to the spousal relationship as articulated in the two codes. The
Moroccan law, following the Tunisian precedent, replaces the previous Moroccan
law’s lists of gender-specific rights and duties pertaining to wife and husband with a
single provision on ‘mutual rights and duties of the spouses’ which include jointly
managing the affairs of house and children and, in an uncommon reference, sharing
decisions on family planning. 69 Sexual relations are clarified as part of shar`i
cohabitation, as are justice and equality in the case of the husband having another
wife. Both spouses have the right of the ‘mutual respect, love and affection’ (see
above) of the other and that the other will attend to the interest of the family. The
‘respect and good treatment’ of in-laws becomes a duty of both spouses, whereas
under the previous law it was a right the wife owed to her husband. A final reference
to ‘mutual inheritance rights’ does not indicate equality, but is clarified in standard
fiqh terms later in the law as entitling the Muslim wife to half the fixed fractional
share from her husband’s estate to that which he is entitled from hers; the non-Muslim
wife is not entitled to a fixed share of her Muslim husband’s estate. In the event of
persistent breach of their duties by one spouse, the other ‘may petition for
implementation of what is due’ or failing this move to the framework of dispute
settlement provided for in the law, which provides for the appointment of arbiters to
seek to reconcile the couple, with the court empowered to rule for divorce – based on
a settlement reflecting the extent of each spouse’s ‘fault’ - should the reconciliation
attempts prove fruitless.
At the same time, the law leaves the wife’s maintenance an obligation on the
husband. In a short article on its possible lapse as a right, the law provides that ‘the
wife shall be awarded maintenance from the date the husband ceased paying the
maintenance that is his obligation, and it shall not lapse with the passing of time
except unless it has been ruled that the wife shall return to the marriage home and she
67
Federal Law no.28 of 2005 on Personal Status of 19 November 2005, Official Gazette no.439 (35th
year) November 2005. Article 66.
68
See Musawah, ‘Framework for action’ op cit. I have used their translations of this phrase here.
69
Moroccan Law no.70-03 of 2004 article 51.
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has refused.’ 70 These texts are worded much the same as their equivalent in the
previous law, with the very significant absence in the current law of the term
‘disobedience’, and the fact of course that the marial relationship is governed by the
different construction of spousal rights and duties.
The year that the law was promulgated, the Moroccan Ministry of Justice
published a Practical Guide to the Law of the Family. 71 The Guide does not expand
significantly on the issue of the lapse of the wife’s right to maintenance, although it
clarifies that the lapse of the right applies to the period following the wife’s refusal to
comply with a ruling for her to return to the marital home. It does however summarise
the new definition of the family as requiring it to be under the joint care of both
spouses, as a ‘guarantee of its stability,’ and noting that the law focusss on ‘having
the spouses match each other in building the family and carrying its
responsibilities.’ 72 This is expanded in its comment on the provision on the spouses’
mutual rights and duties, where the Guide underlines ‘the principle of equality
(musawah) on which the provisions of the law are based.’ This equality is shown,
continues the Guide, in the responsibilities spelled out in this article towards family
affairs and consultation in decision-making:
The purpose of consultation emanating from equality is arriving at a
shared, consensual opinion, far away from obdurately holding on to
personal opinion. This helps in building family affairs in a calm
discussion and cooperation, shared responsibility and love. 73
The insistence on equality in the official discourse is a theme repeated
elsewhere. A summary of statements made by senior government officials in response
to questions raised in the Moroccan parliament about the draft law reports the Minister
of Justice confirming that ‘equality is a pillar of the requirements of this law’.74
Parliamentary questions posed in the discussion of the definition of marriage
explicitly raised the issue of qiwama and ‘which of the spouses bears responsibility.’
The following précis is given of the Minister’s response to a question around ‘the
apportioning of responsibility for the family and the meaning of qiwama’: ‘the import
of the new requirements that the definition of marriage is that each of the spouses is
responsible in the family in light of shared care, even if the text does not explicitly
round this out.’ For his part, the Minister of Waqf and Islamic Affairs clarified as
follows:
We might dispense with the different meanings of qiwama; the
text in this draft is on justice, and community [of the spouses: mu`ashara]
and the like, although qiwama does provoke the question of what is
intended by it, and also the question as to whether we are looking at
principles or procedures?!
70
Articles 194 and 195. .
Ministry of Justice, Dalil `amali li-mudawwanat al-‘usra (Rabat: Jama`iyat nashr al-ma`luma alqanuniyya wa’l-qada’iyya) 2004.
72
Ibid pp. 5-6.
73
Ibid 46.
74
Ministry of Justice, Muqtadayyat al-jadida li-mudawwanat al-usra(New Requirements of the Law of
the Family), (Rabat: Jama`iyat nashr al-ma`luma al-qanuniyya wa’l-qada’iyya) 2004, p.102.
71
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Qiwama may come from the man or from the woman, or from
both of them together. Qiwama does not only mean the provision of
maintenance, or being in a higher position (al-`uluw), which is why there
is no definitive command in fiqh on this issue. The understanding of
qiwama in the new law and its role in the family relationship depends on
the strongest principles, such as those of community and living together,
justice, and equity. It could come under the frame of care (ri`aya) based
on the noble hadith. It remains among general principles because of the
plurality of views on interpretation of it. It is a cornerstone [in the
relationship] and in practical terms it is the care of the stronger for his
comrade and companion in married life...75
The Minister repeated this last clarification when explaining, in relation to the
basis for the duty of marital maintenance, that ‘qiwama that requires the stronger
one’s assistance of his life companion is an element of the shar`i basis of this
maintenance.’ 76
Turning now to the UAE law, we find that it follows the earlier models of
gender-specific rights and duties: one relating to those shared by the spouses
(including lawful sexual relations, cohabitation, mutual respect and bringing up
children from the marriage), one to the rights of the wife and one to the rights of the
husband. 77 The wife’s rights include maintenance and the right ‘not be prevented
from completing her education’, along with other rights standard in fiqh and in earlier
codifications, protecting her personal property and visits to and from her relatives and
the right not be subjected to physical or mental injury by the husband. The husband’s
include his wife’s obedience ‘in accordance with custom/in kindness’ and her
management of the marital home and its contents. It also lists as a right of the husband
the wife’s breastfeeding of their children when she is able to do so; this is included in
the Moroccan law as a child’s right from the mother.
The law describes in two separate articles (71 and 72) the circumstances in
which the right to maintenance lapses – that is, circumstances that will ‘not be
considered a violation of the obligatory obedience.’ The first revolves around securing
the wife’s availability to her husband, as discussed earlier in this paper, requiring her
presence in the marriage home and accompaniment of the husband if he travels, all
unless there is a shar`i reason not to. The second article makes exceptions to these
expectations, the first familiar from earlier articulations of these rules, allowing her to
leave the marriage home ‘in circumstances that allow her this according to law or
custom or the exigencies of necessity.’ The second exception deals with the wife’s
right to go out to work, considering this not to be a violation of obligatory obedience
‘if she was working when she got married, or if [her husband] consented to her work
after the marriage, or if she stipulated this in the contract of marriage.’ More
unusually the marriage notary is instructed to ‘inquire about’ the insertion of a
stipulation into the marriage contract on this matter – although it does subject even
the implementation of such a stipulation to the ‘interest of the family.’ A final point is
that the law explicitly rules out the forcible implementation of court rulings for
75
Ibid pp.48-49.
Ibid p.187.
77
Articles 54, 55, 56.
76
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obedience. The Explanatory Memorandum clarifies that such action would violate the
wife’s dignity, and that coercion cannot be a basis for married life. 78
The article-by-article Explanatory Memorandum that accompanied the law
provides a jurisprudential justification of the reasons for the rights of the husband (in
article 56) focussing on the qiwama of the man in the family. This text calls on
several verses of the Qur’an (including Sura 4.34) and a set of precedents from the
hadith, interwoven with the conclusions drawn from this material for the structure of
the marital relationship. The following extracts reproduce some of the latter
argumentation from the opening passages:
Every group, no matter how small the number of its individual
members, has to have one of their number with a degree of guidance and
obedience, in those matters calling for obedience, to be responsible for
guiding their affairs to that which brings them benefit and good.
And it is known that the family is the first group in human life
since Allah created humankind and made them viceroys on earth and set
some above others in degrees. […] And while each of the spouses is
responsible for the rights of the other and for caring for their dignity and
preserving [all this] in their absence, the shari`a sets down that qiwama in
the family is to the man, because of his interaction with general society,
and because he is more able to be ruled by reason and to control his
positions and his emotions, and because he feels the financial and other
injury should matrimonial life be corrupted or cut off. […] 79
This extract speaks to qiwama as belonging to men in the family in general,
linking it to gendered roles in society and to an assumption of gendered nature – a
form of biological determinism that is underlined by a following passage that refers to
the ‘different natures’ of men and women, and the ‘distribution of tasks’ required by
‘their bodily formation.’ The last justification for the man’s authority in the family
refers to his financial obligations and can be read as invoking the arguments advanced
for the husband’s right of unilateral divorce and against a woman’s access to ‘divorce
at will’ through the process of judicial khul`, referred to earlier in this paper.
Concluding Comments
The different articulations of the husband’s authority in the marriage in
Morocco and the UAE demonstrate the way in which articulations in law of the
concept of qiwama – and the paradigm of the husband’s legal authority - is moving in
the region. Morocco stands at one end of a spectrum, with its explicit commitments to
equality combined with continued obligation of the husband to maintain his wife and
children – on the assumption, according to the above comments from the Minster of
Waqf and Islamic Affairs, that the husband has a ‘stronger’ position in this regard and
is therefore obliged to assist his wife. Given the dependence of many women on male
income in the household, this continuing obligation in law reflects ‘lived realities’
while apparently unsettling the previous fiqh ‘balance’ or ‘equation’ of maintenanceobedience. The possibility of withdrawal of maintenance rights from a wife who has
78
79
Article 158, Explanatory Memorandum p. 268, p.100
Explanatory Memorandum 186-87.
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left the marital home for no reason acceptable to the court, and has refused to return
after a court ruling, means that judicial practice will stand to explain what the
judiciary understands from the removal of the obligation of ‘obedience’ and the new
requirements of joint management of (responsibility for) the family At least one
commentator on the new law has observed, in relation to the new provision of mutual
rights and duties of the spouses, that in addition to these “the woman is the supervisor
of her husband’s house and affairs, and she must preserve him in her person and his
property, and she must not in his absence cross him in something she knows would
hurt him in his presence…” While not deploying the term ‘obedience’, this
commentary invokes the traditional discourse also of the husband’s right to
‘discipline’ (or ‘chastise’: ta’dib) his wife. 80 Time will tell to what extent dynamics
inside the family are altered by the provisions of the new code, its application by the
judiciary and the substantial publicity around it. In the meantime, Algeria followed
the Moroccan example, removing the duty of obedience – along with other rights and
duties specific to husband and wife – in amendments to its law in 2005 and
substituting a set of mutual rights and duties.
The UAE law, on the other hand, presents a much more traditionalist
conceptualisation of gender roles in the text of its law and indeed in its Explanatory
Memorandum. Other Arab Gulf states that have issued first time laws since the UAE
(Qatar and Bahrain) have stayed with this model, one that those working for change
argue is a paradigm constructed more by the modern patriarchal nation state’s vision
of gender relations than by reference to the ‘Qur`anic requirement of justice.’ These
states have all also signed up to CEDAW in the first decade of this century. Besides
the impact discussed by Mayer of the ensuing discussion of women’s rights in family
laws that take place in the international forum of the CEDAW Committee, 81 there is
an active networking between women’s and civil society groups regionally building
inter alia on the changing socio-economic status of women and their increasing
educational achievements. Muslim majority states in the Middle East and North
Africa display both commonalities and differences in their approach to the globalising
pull of the ‘equality paradigm’ that undermines the legal postulate of the husband’s
legal authority over his wife, and to the demands of local lived realities and regional
developments. The efforts of a network such as Musawah come in support of the local
and regional activities of those already engaged in seeking changes in Muslim family
law and life. Although those involved in and working with Musawah invoke also the
international human rights discourse, their insistence on the compatibility of the latter
with the Islamic ideal of justice, as to be realised in the exigencies of current life,
challenge states in the Arab region and elsewhere on the legal postulates advanced as
rooted in Islamic law and fitting to society’s (and men and women’s) needs: among
them, the familiar paradigm of qiwama, a husband’s authority over his wife.
80
Ikhraisi, Su`ad, Min mudawwanat al-ahwal al-shakhsiyya ‘ila mudawwnat al-‘usra (From the Code
of Personal Status to the Code of the Family) (Rabat: Dar al-salam li’l-taba`a wa’l-nashr wa’l-tawzi`)
2005, pp.183-4.
81
Ann Elizabeth Mayer, ‘Internationalizing the conversation on Arab women’s rights: Arab countries
face the CEDAW Committee’ pp 133-160 in Y.Haddad and B. Stowasser (eds) Islamic law and the
challenges of modernity 2004
17