Critical Issues in Woman's Fiqh

Critical Issues in Woman's Fiqh

Masa'il Harijah Fi Fiqh Al‌Mar'ah

First volume: "As‌Sitr Wan‌Nazar"

Second volume: "Ahliyyat Al‌Mar'ah Li Twalli As‌Sultah"

Third volume: "Hoqooq Az‌Zawjiyyah"

Fourth volume: "Haqq Al‌'Amal Lil Mar'ah".

The author is Mohammed Mahdi Shams Ad‌Deen. "First edition: Mu'assasat Al‌Manaar, Qum". Masa'il Harijah Fi Fiqh Al‌Mar'ah is the name of a collection which was compiled and written by Mohammed Mahdi Shams Ad‌Deen.

The author believes that certain difficult issues in women's Fiqh, are subjects that have to be set in the area of woman's connection with the society. In other words, they are subjects which come in sight from contravention between rights and duties of the wife and her social presence. He believes that these issues include four things:

· issue of covering and looking;

· woman's competence to assume post of State president;

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· matrimonial rights;

· woman's social presence.

The first volume which is titled As‌Sitr Wan‌Nazar, discusses the covering and looking. The subjects of this volume are introduced through one prelude and two questions. In the prelude, some points regarding an investigation on Fiqh of the woman, are cited, in the outset of which the woman's position in the system of Islamic values and right is determined. After that, he refers to notable women in history, that represented practical applicability of value system. In the end he makes a brief reference to biography of liberation and freedom of woman in the West and Islamic world.

The first question is about the covering. In this question he first clarifies the controversial points, believing that the face, two hands "palms", two feet and neck of mature women, who didn't reach the age of past child‌bearing, being a theoretically controversial and disputable issue. Before stating the proofs of the opposers and supporters of this issue, he reiterates the exigency of the theoretical basis, proving companionship and rational and traditional acquaintance, with allowance of uncovering in controversial places.

Quoting evidences of those believing in allowance from the Quran Prophetic Sunnah, and unanimity, he gets the result that their exigency is permission to uncover the face, hands and feet. Then he criticises the proofs of those opposing this which are the Book "Quran", Sunnah and unanimity.

The second issue is regarding the discussions of looking, which the author sets forth in two parts: First part on looking of a man to an foreign woman. In the outset of this part the author presents clear‌cut description of the subject, dividing the women in this connection into four categories:

· Freeborn adult Muslim woman.

· Freeborn adult non‌Muslim woman.

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· Bondswomen.

· Bedwin women.

And he considers states of looking to be four also:

· optional condition;

· exigency condition;

· looking for the sake of marriage;

· looking for purchasing.

Then he gets the conclusion that the controversy and dispute being on looking at an adult Muslim woman optionally "of course without suspicious intention".

In this regard there are three opinions: forbiddance of looking, permission and elaboration. In the beginning he criticised the view of prohibition and elaboration, turning then to establish a proof from the Quran and Sunnah on permission "to look".

The second branch is looking of a woman at a foreign man. Here also, in the outset he clears up the outward shape of the discussion, dividing men into five groups:

· Men who have no intention to get married to a woman, whether being free or slave of others, Muslim or non‌Muslim.

· Men who have intention to get married to a woman.

· Woman's slaves who have manliness.

· Woman's slaves who don't have manliness "know naught of women's nakedness".

· Men who lack vigour "Ghayr Olil‌Irbah".

Afterwards he deems the controversial subject "of discourse" to lie in two cases: one looking without lust with free will and without intention to get married; and the other be looking at a man who has intention to get married.

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Regarding the first question he believes that woman's looking at the face, two hands, neck and two ears of men to be permissible, hence reasoning with this opinion, and criticising the disagreeing opinions. Regarding the second question he also deems looking for the sake of marriage to be allowable.

The second volume, titled Ahliyyat Al‌Mar'ah Li Tawalli As‌Sultah, discusses the subject of woman's competence to assume state presidentship. The author, in the introduction to this book, states that non‌competence of woman to assume rulership being one of indisputable truths of Fiqh, but it should be known that what is self‌evident being Fiqh, and Shari'ah is not self‌evident. Nevertheless, many of self‌evident truths of Fiqh, being also intuitions of Shari'ah. Hence, the ground for meditation and contemplation in such issues is made ready.

The subjects of the book start by declaring that the foremost duty of the woman being managing the house and family affairs, but this is not the only charge undertaken by the woman. The Fuqaha unanimously concur that the woman can practise activities in many other realms of life. The dispute concentrated on her political activity alone, as some considered this field to be totally improper for the woman, and others were of the opinion of permitting this domain with some details. He gives the preliminaries necessary to enter into discussion, like identifying the framework of political profession, equality of woman and man in knowledge discipline, rights and values in Islam, with Quranic and historical evidences on permission of political activity. He then says that this issue was not recorded in the Shi'ah Fiqh, and the Sunni Fuqaha concur on incompetence of the woman for such job. Then he sets forth proofs of opposers, deriving them from the Quran, Prophetic Sunnah, unanimity "Ijma'", approvals with the practical basis, subjecting all these to criticism.

In the end the author comes to believe that there is no manifest evidence on incompetence of the woman to assume post of presidentship of government.

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The third volume, titled Hoqooq Az‌Zawjiyyah, is dedicated for discussing the rights of the wife and of the husband.

This book has an introduction and two subjects of discourse. The introduction sets forth for discussion the subject of discourse and considerable concepts like right "Haqq", judgement, and Nushooz "wife's disobedience and abstinence towards her husband". In it also it is stated that marriage contract has reciprocity and mutual responsibility on the part of the wife and the husband. For this issue he makes use of the verse "And they "women" have rights similar to those "of men" over them in kindness." and the Prophet's hadeeth: "You are all guardians and you are responsible for your subjects... and the man is a guardian over his household... and the woman is a guardian over house of her husband and his children..."

On this basis, the author concludes that each wife and husband are bound to observe the right of each other, as long as the other side undertaking his/her responsibilities. And whenever the wife or the husband violates her/his legal duties the Nushooz will be ascertained.

After the introduction, the topics of the book continue through two sections. The first one concerns the consequences of marriage contract for the husband, and the second one about consequences of marriage contract for the wife.

In the first section he discusses the fact that disobedience "nushooz" and obedience are two reciprocal matters, but what can be got from the outward of the Quran being illegality of Nushooz not obligation of obedience. The narrations indicating obligation of obedience are extracted from prohibition of Nushooz, not from the fact that the original duty "takleef" being obedience. On this basis, it is not that obedience of wife to her husband be absolutely obligatory. It is not to imagine that everywhere the husband be he can call his wife to account, to the effect that the husband had this right to do so, that is the reason why some confusion and obscurity is found sometimes in the debates of the Fuqaha.

For instance it is stated in a hadeeth that the wife can never pay alms out of her husband's house without his permission; This is not only a right for the husband, but rather it is a Divine imposition, that every individual has no right to take possession of property of another person without asking his permission.

Or if it is said in a hadeeth that the true jihaad "struggle" of the woman lies in tolerating her husband's annoyances, it does not mean that the husband has the right to harm or annoy his wife.

He then says: what can be inferred from the legal proofs being that the husband has, according to stipulation stated in marriage contract, two rights: one right to enjoyment and the other is right to musakanah "cohabitation" and living of the wife with him. Other than these two rights, all other things are either not his right or among requisites of these two rights.

After quoting some statements from the Fuqaha, he turns to citing eleven narrations, considering some of them in his last analysis to be of weak Sanad "chain", believing that the others have no utility other than the right to enjoyment and cohabitation.

He then starts a discussion about these two rights and their boundaries. In regard of right to enjoyment he says that the husband has the right to every kind of sexual enjoyment and exploitation, unless a legal or physical impediment be there like menstruation, fasting, or physical impotence... etc.

Concerning the right to cohabitation he says: The wife should live with the husband in a way that it can be said she is living in the husband's house. After that he sets forth the question of woman's going out the house without asking permission from her husband. He says that the Quran doesn't contain an evidence on incumbency of seeking permission of the husband, as the Quran propounds the issue of Nushooz "disobedience and abstinence", without clarifying in its verses with what this nushooz can be realised. In the end he says that the going out of the woman is forbidden in two

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cases: one when it being inconsistent with the right of enjoyment, and the other when it paves the way for perversion of the wife or others. In this case the husband has the right to forbid "her from going out", since the living together of wife and husband necessitates this. In other cases, if we admit the obligation of asking husband's permission on the part of the wife, it doesn't mean that the husband has the right all the time. The hadeeth reported by Abdallah Ibn Sinan denotes that a Christian man went on a journey in the Prophet's lifetime, making a covenant with his wife not to leave the house "during his absence". Then the wife's father felt sick and passed away, but the Messenger of Allah"S" never gave her permission to go out of her husband's house neither for visiting her father nor for attending his funeral ceremonies. About this hadeeth he says that it first disagrees with association in kindness to which the Quran prescribed. And secondly he regards it as a particular episode whose judgement can never be generalised. In the conclusion he says: right to enjoyment and right to cohabitation are stipulated by association "mu'asharat" in kindness to which the Quran has prescribed.

Other than these two rights, there is no right for the man, therefore what is seen in the words of some Fuqaha, with the general meaning, as obedience right, has no legal proof.

Likewise, the husband has no service right over his wife, the fact to which the original primary exigency and narrations invite. Rather there are some evidences indicating that the husband should provide his wife with a servant.

The second subject discussed in the book pertains to wife's rights over the husband. Two rights are believed to belong to the wife, one being the sexual right and the other right to living together which includes also alimony "nafaqah".

In respect of the first right, he considers the famous opinion to be incorrect, holding the view that all the sexual need of the husband should be met, just as the husband has such right over the wife. He regards limiting a period with four months or

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alike to be something incapable of being proved.

In the second right he believes that an amount of concession which is called in numerous traditions with the term ghufran "forgiveness", to be incumbent upon the husband, and to be something other than association in kindness to which the Quran commands.

He regards right to alimony to be another part of right to joint living, stating the reason for obligation of alimony to lie in the consummation "of marriage" and its actuation, with tamkeen "compliance and submission by wife".

The fourth volume is dedicated for employment of women. The reason he gives for propounding this subject being the two extremist viewpoints in respect of confining the wife inside the house and her going out from the house. But he believes that religion being neither a dress that can be changed according to carnal desires, nor a fetter and chain on the hands and legs of man. Rather religion is the straight path, and the Faqeeh has to encounter these extremist views with open‌mindedness and realistic insight, with preserving the established principles of religion.

The author believes that the motive for woman's employment in the view of Islam is not to realise economic independence but rather being one of these two: compensation for the economic shortcomings of the family, and performing the social duties to which Islam refers under the title of kifa'i duties.

For accomplishing the second issue, he initiates the discussion by turning firstly to its inherent legitimacy, and in the second place propounding for argument its essentials like intercourse or incompatibility with the husband's right. For the first position he relies on the generalities of the Quran, the "Prophetic" Sunnah and special narrations, inferring the result that the woman is permitted to work.

In the second place, he says that mixture "ikhtilaat" transgresses sometimes the legal regulations necessitating

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forbidden things, and some other times it being not so, whereas intercourse between woman and man with observing the standards is not legally forbidden, considering the legal restrictions for mixture between woman and man inside offices and work places to lie in the following points: · Covering;

· Lowering the gaze;

· Avoiding seducing conversation;

· Abstinence from solitude with a foreign woman.

In respect of inconsistency with rights of the husband, what is accepted also being right to enjoyment and cohabitation, beyond which the husband has no right.

The conclusion of that is as follows:

· The husband has no absolute obedience right "over the wife".

· The husband has no right of willingness to service on the part of his wife.

· The husband has no dominance on his wife's properties.

· The husband has no authority over his wife's leisure times and opportunities.

In the end of this brief report, I find it proper to refer to some points:

· Among the subjects discussed and propounded in this book, there being the question of woman's looking at a foreign man and woman's competence to governorship, which were never given good attention in that extension and independence in the Shi'ah Fiqh. In fact, the author has priority over others in setting forth this issue. It is hoped that this work will open the door wide for other profound investigations and researchers.

· The author has made - within this book - several references to some of fiqhi and osooli principles and foundations, which worth study and contemplation on the part of scholars and researchers of Islamic sciences.