This critique, written by Dr. Nawab Ahmad, was sent to Dawn on March 4, but was not published because the newspaper is liberal.
An article titled “An Unequal Partnership” was published in this newspaper on March 02, 2020. Ms. Sulema Jahangir, a lawyer, wrote about women’s rights in relation to divorce. She claimed to present Qur’anic views and values, but did not cite any verse. Rather, she referred to the questionable legislation by the Sharia boards (or the equivalents) of various Muslim countries as well as produced emotional rhetoric. A critique is as follows.
QUOTE: “… some (judges) believe that under Islam a man has an unfettered right to divorce.”
Unquote: What some judges think does not matter. Since the writer is a lawyer, she must have made her case based on the Qur’an. As such comments (sarcasm) are popular, they are usually passed to diminish the people of the other camp and earn fame. The reality is that the Qur’an has awarded just rights to everyone.
QUOTE: The Rashid Commission … merely recommended that a talaq should be registered but even this was unpalatable! … some (judges) holding that for an effective divorce the talaq has to be notified to the Union Council
Unquote: No council, commission, or institution has the authority to alter the law of God. According to the Qur’an, a divorce takes effect as it is pronounced. This is why after its pronouncement, the Qur’an rules in verse 2:228, “Al-Mutallaqaato, i.e. the divorced women, will hold themselves for three feminine cycles.” If divorce does not take effect after it is pronounced, why is God calling them “the divorced women”? Did God commit a mistake? Also, why is the verse 2:228 asking to start Iddat (waiting period) without divorce being effective? Again, did God commit mistake? The fact of the matter is that whether or not notified, divorce is effective.
However, notification may be made necessary these days for governmental records. And it can be accomplished by either the man or the woman. People will specially cooperate if they see any advantage, for example, the government will help these women. But notification in order to make a divorce effective is absurd. In case of pronouncing divorce, man’s position in Islam is equivalent to that of a court judge. And when a court judge pronounces a verdict, it takes effect right away. This very thing is not known to a Muslim lawyer, it is strange.
QUOTE: The injustice to one half of the population, many of whom are dependent upon the goodwill of the other half, is the most glaring example of social inequality but receives no attention.
Unquote: First of all, these days works are available for women, and thus a woman is dependent by her choice, or the choice of her parents, or the norm of the culture, etc. In brief, husbands are not responsible for the social inequality on the work front or making wives’ solely dependent on their goodwill. Secondly, in Islam, a husband has the obligation of providing for his wife as long as the marriage continues, not after divorce. Thirdly, the Qur’an says, “For husbands, there is a rank over their wives. (2:228).” So husbands and wives are not equal in Islam. In this sense, the writer’s outcry of social inequality between husbands and wives is un-Qur’anic.
QUOTE: The Zahid Commission in 1993 stated that “… to which women are exposed is the lack of sharing of assets and property upon termination of marriage”… this principle of sharing is in accordance with the principle of mata’a or kindness to a divorced woman. Mata’a is also part of Islamic principles and is mentioned in the Holy Quran.
In some Muslim countries such as Jordan, Morocco, Algeria, Egypt, Syria, Libya and Tunisia, mata’a is paid to the wife in addition to dower and maintenance. In Pakistan, there is no concept of mata’a. … in several Muslim countries more progress has been made to recognise women’s non-financial contributions to a marriage. In accepting women’s right to resources acquired through the joint efforts of parties to a marriage, these Muslim countries do not believe they are acting contrary to Islamic principles.
First of all, the lawyer did not cite any verse to back her claim that the Qur’an has given the principle of shared marital asset and its division at the time of divorce. This way of arguing is itself questionable. If it is in the Qur’an, why would a proponent, specially a lawyer, not cite it?
Secondly, for the 14 centuries, including the time of the Prophet (peace be upon him), no one talked of joint matrimonial assets and its division at divorce. Were all of these scholars and the Prophet himself poor in reading comprehension?
Thirdly, suppose an adult son of a family struggled hard after marriage, built a home, bought a car, then his relationship with his wife got soured, so he divorced her. Then his divorced wife forced him to sell the home and car, and give her half of the money from the sale as well as half of his savings in cash. If you are the mother (or father) of such a man and have more children and/or grand (the man’s) children to support, then you would know whether your ex-daughter-in-law is right in taking half of the properties and bringing your family to ruins.
Fourthly, a mother endures and serves so much in raising a male child, and her share is only one-sixth in case her adult son dies (ultimate separation). But the wife who does nothing in the upbringing, education, and career making of the man gets one-half of his property at divorce (separation). Is it justice to the mother? And claiming that these rules are in the Qur’an, isn’t it a gross lie?
Fifthly, it is just a speculated claim that a wife equally contributes to man’s earnings by doing house chores. There is no proof or substantiation to it.
Sixthly, the lawyer must be knowing that the right to property is an inalienable human right. So why is the spousal property not divided as the earning comes every day, every week, every month, etc?
Seventhly, isn’t the lawyer blaming that God allowed husbands to take and keep their wives’ money until divorce? In other words, isn’t she blaming that God ruled for husbands to grab their wives’ earned money in marriage?
Eighthly, if the earning is divided all along between spouses in accordance with the inalienable right to property, the marriage system will almost collapse. So the idea of shared income is impracticable too.
Ninthly, when man dies, half asset must be given to the living wife according to the rule of joint marital asset. And only the half asset should be divided as the inheritance of the deceased. But it is not the case in the Qur’anic laws on inheritance. Did God then contradict His own law of shared marital property?
Tenthly, again, when husband expires, half asset must be given to the living wife according to the joint marital asset. And the half asset should be divided as the inheritance of the deceased. But such is not the practice in Turkey, Tunisia, Morocco, Malaysia, etc. Why? Aren’t they then claiming contradictory Qur’anic rules?
Moving forward, suppose a couple expire altogether in a road accident. Then half of the marital assets should be considered as of the deceased woman and the remaining half as of the deceased man, and then their inheritances should be divided. This is essential because the distributions of man and wife’s inheritances differ. For example, the man’s parents will get shares only from their expired son’s property, and not from that of their late daughter-in-law. So the question is: Is inheritance distributed in this way in Turkey, Tunisia, Malaysia, etc? If not, don’t they then defy the Qur’an if the joint matrimonial asset is in the Qur’an?
Lastly, the verse on the claimed Mataa’ is 2:241 which states: “And for divorced women is Mataa’-un in kindness: it is due on the Muttaqeen.” To understand this Qur’anic principle, the meanings of Mataa’ and Taqwa in this verse need to be comprehended first. For it, one has to follow the method of reading comprehension. The preceding verse 240 is on widows, and verses 238 and 239 are on the daily prayers. So before verse 241, verses on divorce are 237 and former. If you read verses 236 and 237, you would get the meaning of Mataa’ and Taqwa respectively.
In verse 236, Mataa’ is for Mahr or its equivalent. That is, it is there for the money, valuables, or goods which are given or supposed to be given to a woman at the time of Nikah (marriage service), and it is not the property that accumulates during a marital relationship. However, Mataa’ in the sense of Mahr in verse 236 is not its literal meaning; it signifies as such there because of the context as well as the qualifying phrase “on the wealthy according to his capacity and on the poor according to his capacity.” When Mataa’-un (a common mass noun) is not used in a specific context, it denotes its literal signification as “SOME money or goods”. For example, if a person says “give me Maa-un,” it would mean “give me SOME water.”
Now come to verse 237. It says that if you divorce a woman before you have touched her but fixed a Mahr, half of the decided Mahr you have to pay. But she can wave her half share and take nothing out of her TAQWA (understandably because she has not given any services). Conversely, you can pay 100% Mahr, and if you do as such, it is closer to TAQWA (because it is you who broke the contract, and she has no blame for it). Note here that giving or taking half Mahr is legitimate, while wife’s leaving her half-share or husband’s giving his half-share is a matter of TAQWA. That is, these are not legal bindings but the expressions of KIND BEHAVIOR.
If you apply these meanings of Mataa’ and Taqwa in verse 241, it is advising men to give the divorced women SOME money or goods as a gesture of kindness at the time of separation, and this thing is NOT BINDING but a matter of Taqwa. Islam teaches to separate nicely. This very CONTEXT is apparent as this verse has come after advising to conduct daily prayers nicely in verses 238 (wusta means of virtue) and 239, and behaving nicely with widows in verse 240. There is no wording nor context that shows Mataa’ is the joint marital asset, and it should be divided at divorce.
QUOTE: Similarly, in many Middle Eastern countries, there is a strong tradition of adding conditions for financial maintenance and capital awards in the nikahnama as haq meher,
Unquote: Here her new point is financial maintenance which is commonly known as alimony or spousal support. Again, Middle Eastern countries are not the Qur’an; she needed to cite the pertinent verse or verses, which she did not. Then she applauded those Middle Eastern Nikahnama (the document of Islamic marriage service) that contain the stipulation of financial maintenance for the divorced women. Technically, Nikahnama must not incorporate those items that the Prophet (peace be upon him) did not include in his conducted Nikah services. If we do as such, it means that we are finding fault with him that he was inadequate in his model-practice. The Qur’an obligates us to follow the Prophet, and it is counter-Qur’anic to prove him at fault in any manner.
There is no Qur’anic verse or Prophetic tradition that says alimony is in Islam. Logically, marriage is a contractual relationship; when the contract is done away with, man and woman become unrelated. And it is unfair to force a man to provide maintenance to an unrelated woman (beyond the Iddat period). Like asset division, it is against the fundamental right to property, and amounts to rob one’s ex-husband
no matter how beautiful the name is given to this robbery.
If you are a parent of a son who has divorced his wife and taken a new wife, then you would feel that it is injustice to force your son to provide for his new wife as well as his ex-wife.
In Islam, a divorced woman is supposed to be on her own, or supported by her new husband, or taken care by her blood relations (father, adult son, brother, uncle, etc.), or helped by the government.
If children are there, they would be in father’s custody according to the Qur’anic law ( 2:233). That said, child care is not separate from child custody in Islam.
QUOTE: Pakistan is a signatory to Convention on the Elimination of all Forms of Discrimination Against Women and other international standards which stipulate that women’s non-financial contributions to a marriage must be recognised to enable an equal standing between spouses.
Unquote: It is on the lawyer to show that the above proposition is in the Qur’an since she has portrayed such a right to be Qur’anic. Otherwise, she should say unequivocally that God is cruel while international forums are just in recognizing non-financial contributions to a marriage, enabling spouses to have an equal standing.
So far remains the question of Pakistan’s being signatory to such conventions, the concerned officials are answerable, not a student of the Qur’an.
The lawyer writer claimed that she presented the Qur’anic views. But above she argues based on the word of Pakistani officials. Are Pakistani officials gods that their given word becomes a divine law?
QUOTE: In England, divorce is still fault-based as the state is too worried to tread on a sensitive subject.
Unquote: Divorce was disallowed in Christianity, thus in the whole West. In 1857, English Parliament enacted a divorce law for the first time. In early days, adultery was the only ground for divorce. With the passing of time, more grounds were included. And today no-fault divorce is commonplace in the US, Canada, Australia, and New Zealand. The writer being an advocate of Pakistan’s high courts and a solicitor of the senior courts of England and Wales knows all this well. But she concealed it to make her point. The uncomfortable fact for her is that the Qur’an allowed no-fault divorce from the very beginning. The writer either does not know it or concealed it too.
The lawyer writer has falsified the Qur’an all along.