In premodern Islam, the status of a woman was not conformed to Quranic ideals but to the existing patriarchal cultural norms. During this time, divorce took many forms where some were initiated by men while others were initiated by women. The two legal forms of divorce that were governed by sharia were khul (mutual) and talaq (repudiation). According to the Muslim law, marriage was characterized as a firm bond by the rules of the governing divorce and the relationship that existed between spouses was supposed to be based on love. 1 This meant that crucial decisions among spouses were to be made by mutual consent.
The Islamic law in practice gave room for marriages that did not have harmony to bring their marriage to an end although it was not that easy for husbands who wanted to divorce their wives unilaterally. As much as the legal act of repudiation was very simple, most husbands who wanted to divorce their wives were deterred by many factors. 2 The first constraint was the financial costs of divorce. Husbands were required to pay all their remaining financial obligations, both the due and late portions of the marriage gifts, all arrears in payments and other debts for support and clothing that they may incur during their wedding.
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The other constraint was that divorced women had an obligation to appeal to Hanafi Qadis who were responsible for divorcee’s claims to lodge and support during the waiting period. Other than these payments, divorcing husbands were expected to pay compensation set at 30 silver dirhams to their formal wives. The divorcees ware entitled to this compensation provided they did not instigate the divorce and forfeit the compensation in their divorce statement.
During the premodern period, women were kept in a state of limbo where their husbands could just repudiate them as many times as they like and take them back at will. This was cut short to only three times by the Islamic law. Similarly, if a man successfully divorced her woman three times, could head no right to remarry her for the fourth time unless the wife was married by another man and divorced her willingly. In fear all these factors, married men who wanted to add a second wife had to conceal the marriage from the public eye in order to stay out of trouble with the first wife. 3 If the first wife did find out of the secret marriage, the man was forced to choose between the two.
The other constrains is that after the divorce, the children remained with their mother until their majority as the fathers only retains guardianship unless the women remarried and the husband claimed custody. In most cases, the woman had an opportunity under Mamluks to waive the right to child support to her female relatives in order to prolong custody. 4 In case she was pregnant at the time of divorce, the husband is required by the Islamic law to offer full support until delivery. On top of this, the newborn has the right to be supported by the after and other maintenance costs the Islamic law demand to be paid regularly.
According to Islamic law, marriage brings financial security for women. The jurists recognize the husband as the provider upon which after a legal marriage, takes responsibility of two sets of financial obligations: the marital support (nafeqa), and the marriage gift (sadaq). The role of husbands as financial maintainer has been undermined by the legal marriage contracts that they secure. Immediately a man secures consent, march, in the presence of witnesses together with prenuptial contract conditions, there are changes that take place in the form of marital support. In every Muslim man, here is an increase in monetization of the daily activities between wife and husband. All these changes began to take place in the phase of Islamic law. 5 During the Mamluk era, husbands were only expected to purchase food, from the market and put bread on the table. This later on changed where men were required to pay cash in form of allowances such as lieu to their wives. The Muslim law only required the husband to offer support in kind where he could three-and-a-half ounces of flower daily and two clothes in a year.
The demands from women began to intensify which lead to the imprisonment of men. This came as a result of husbands who failed to offer support to their neglected wives. Since then, men have been intimidated to fulfill their women even beyond their means or end up in prison. The right hierarchy of the power of marriages under the Muslim law was reversed. The husbands have become their wives, prisoners, and slaves. For instance, in the 14 th century, cash allowances become widespread as many legal manuals at these period approved wives for marital status. Most wives preferred to be paid cash allowances against their husband's will. 6
The adoption and demand for Islamic law or sharia were significant among the Muslim community. Islam law acted as a code of living that all Muslims adhered to. Its aim was to help Muslims to understand how they lived every aspect of their lives as husband and wife as well as uniting all family members in the society. Furthermore, the law informed every aspect of the daily life of a Muslim. Its main aim in the society was to ensure that both parties; husband and wife lived their lives happily and no one was undermined. As much as it gave men the freedom of marrying more than one wife, it ensured that the men did not take advantage of the situation. The law had tough punishments depending on the magnitude of the offense. This includes the “had” crimes which were serious offenses that came with penalties and “tazir” crimes that resulted in punishments. Hadd offenses included adultery which has a penalty of stoning to death. Consumption of alcohol and fornication were punished by lashing. 7 The ruling in the Muslim law was complex and it was normally done by experts. Islamic jurists issued both formal and informal rulings and also offered guidance.
Islamic law has been adapted into the social reality in different forms. One of these forms is the legal context. This was derived from Islamic sources using different methodologies into different legal schools. It was later on interpreted by the jurists who were demanded to give a legal opinion without payment and respond to any form of query. All family disputes were handled in sharia courts that were presided over by the qadi who was members of the local community. 8 All members from different classes together with their witnesses argued their cases in court in the absence of a professional legal representative although upper-class members were represented by a representative. Women were highly involved in the litigation process. In most cases, a woman’s testimony by law carried half the weight of that of a man.
The Islamic law imposed the divine law. As a natural order, the Islamic law established laws that accord with righteous deeds. Upon marriage, the man has the responsibly to fully support their wives. This is not the case with most husbands who end up marrying other women and neglecting their first wives. They also go ahead to deny the wives on their primary basic needs such as food and clothing. It is through the Islamic law that such women managed to fight for their rights. The law also helped to minimize the number of women a Muslim man can marry three. The law successfully anchored custody of children the wives provided that they have not been married elsewhere. 9
In the modern days, women who only held political powers now hold religious titles. The status of women premodern Islam conformed to the widespread cultural norms. This called for the improvement of the status of women in the modern through reformist Islam. 10 It is the roles of women in maintaining family roles, culture and social continuity that has raised women into religious positions.
The jurist managed to impose the law although not to the fullest. First, it managed to advise husbands to beat their wives for refusing to have sexual relations. But this law was opposed by most qadis whose aim was to minimize domestic violence. The jurists insisted that it was not permitted for husbands to discipline their wives who left their houses without permission or deny their men sex. The Jurists also realized that not all parts of the law could be fully imposed. For instance, cases wife abandonment were hard to prove since women were required to prove that their husbands were absent for a period of 6 months, he has no property where which could deliver the support needed or the husband did not leave any support at all. The other reason why the jurist failed to impose the law due to the most cases were underreported especially from the illiterate wives or they were solved locally by in-laws, neighbors, and kin.
Bibliography
Digi-ED. Accessed December 21, 2018. http://dl4a.org/uploads/pdf/Marriage,%20Money%20and%20Divorce%20in%20Medieval%20Islamic%20Society.pdf
Coulson, Noel J. "The state and the individual in Islamic law." International & Comparative Law Quarterly 6, no. 1 (1957): 49-60
Maududi, Syed Abdul Aala. "Islamic law and constitution." (1955).
Mir-Hosseini, Ziba. "Muslim women’s quest for equality: Between Islamic law and feminism." Critical inquiry 32, no. 4 (2006): 629-645.
Sachedina, Abdulaziz. "End-of-life: the Islamic view." The lancet 366, no. 9487 (2005): 774-779.
1 Digi-ED. Accessed December 21, 2018. http://dl4a.org/uploads/pdf/Marriage,%20Money%20and%20Divorce%20in%20Medieval%20Islamic%20Society.pdf .
2 Coulson, Noel J. "The state and the individual in Islamic law." International & Comparative Law Quarterly 6, no. 1 (1957): 49-60.
3 Digi-ED. Accessed December 21, 2018. http://dl4a.org/uploads/pdf/Marriage,%20Money%20and%20Divorce%20in%20Medieval%20Islamic%20Society.pdf .
4 Maududi, Syed Abdul Aala. "Islamic law and constitution." (1955).
5 Coulson, Noel J. "The state and the individual in Islamic law." International & Comparative Law Quarterly 6, no. 1 (1957): 49-60.
6 Mir-Hosseini, Ziba. "Muslim women’s quest for equality: Between Islamic law and feminism." Critical inquiry 32, no. 4 (2006): 629-645.
7 Mir-Hosseini, Ziba. "Muslim women’s quest for equality: Between Islamic law and feminism." Critical inquiry 32, no. 4 (2006): 629-645.
8 Maududi, Syed Abdul Aala. "Islamic law and constitution." (1955).
9 Sachedina, Abdulaziz. "End-of-life: the Islamic view." The lancet 366, no. 9487 (2005): 774-779.
10 Digi-ED. Accessed December 21, 2018. http://dl4a.org/uploads/pdf/Marriage,%20Money%20and%20Divorce%20in%20Medieval%20Islamic%20Society.pdf .
