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An analysis of Islamic states’ contributions to family and potential threats to its traditional perceptions
Farooq Hassan — Barrister at Law, Senior Advocate, Supreme Court Pakistan, (QC), Attorney at Law, (US) Special UN Ambassador for Family, Professor (Harvard)

Synopsis of the address given at
the round table discussion
Family: Origins and Future of Civilizations”

took place within the framework of
World Public Forum
“Dialogue of Civilizations”
(Oktober 7—11, 2010, Greece, Rhodes)

I am honored to address today this distinguished gathering of experts and exponents of Family in the 2010 Rhodes Forum Debates concerning this subject. This international conference is organized I believe as a part of the series of conferences on this subject such as organized by the World Congress of Families. The conveners of this meeting are to be felicitated for providing a meeting place which aims to provide an open, impartial and independent forum to discuss important issues relating to how the “Family” can be strengthened in the face of current threats.

The theme of the Conference is truly memorable as it focuses on the moral and philosophical foundations of the modern family. While attending to this historical legacy, indeed heritage, it is manifest that we, must a fortiori, keep in mind the roots of our moral and ethical foundations: Thus the significance of Faith and Religion and its role in this significant part of our civilization’s history and background becomes self evident.

I consider it an honor to accept your most gracious invitation to address the Rhodes Forum dealing with the most important theme of Family: Origins and Future of Civilizations

A word about the organizers is most relevant. This debate of this year’s Forum is organized by those who strongly value the importance of the family and appreciate the efforts of all responsible citizens and public officers who encourage and undertake measures designed to maintain and strengthen the Family. In this Committee of the Organizers I must pay special vote of thanks from all of us who are present here to His Excellency Dr. Feodor whose leadership role, and his worthy colleagues is largely responsible in ensuring the successful convening of this Forum.

With these preliminary observations, I must now turn to address the theme that I have selected for conveying my thoughts to you which is Family: Origins and Future of Civilizations.

The significance of life and happiness itself, which is regarded as the universal sine qua non of anything meaningful or even desirable in Platonic terms of our worldly existence, is manifestly regarded as the pivot around which all that is beneficial to the human race revolves. Religion or faith based evaluations of this phenomenon are most educative to us today.

Faith as such is the harbinger of many good tidings for Mankind; yet it is trite knowledge that it is purportedly considered by some as the basis used by even well meaning people to advocate criticism, even ridicule of other faiths.

In the world in which we find ourselves in 2010, there as such much acrimony and mistrust by followers of races and of adherents of diverse faiths against those who are just “different”. [1]

I am privileged to be the author and presenter of the new contemporary right which was presented to the world in the Mexico Conference of 1980 which examined and upheld the availability of this new human third generation human right actually called, the “right to be different”[2]

The theological differences that exist in the history and experiences of the current multi- ethnic and multi-racial populations remains a source of much strength in this contemporary world, though superficially it is designated by some as something that should be feared and watched out for [3].

It is difficult to deny that diversity in religion has been a source of much discord over history; but would you not consequently say that it is now time that we moved on from a state of paranoia and suspicion to one of trust and reliance? [4]

There is much rhetoric in this domain which one must avoid being trapped into. While talking of harmony we find several well meaning articulations of this thesis. However, the ground realities are such that sooner or later some event in some area of the world just shakes the very foundations of a prevalent calm that threatens the hopeful aspirations of protagonists like me.

My endeavor in this presentation is to initially point out importance of Family in contemporary legal systems, both public and private, and then focus on the ethos and message regarding Family and the society emanating from a truly doctrinal basis of Islamic teachings on this subject. It seems a different world today from the one we grew up in only a generation ago. [5]

The specific features and perception of the word "family" in Islamic countries’ is in harmony with the general international legal texts that are still echoed in numerous texts of highest authority. The value and importance of Family is designed to be projected which, in the words of the Universal Declaration of Human Rights, 1948, Article 16 (3) constitutes the core & fundamental unit of our modern society (emphasis supplied). The international conceptions relating to Family, in simpliciter, are really emphasizing the pivotal duty of states to maintain the essential traditional & moral characteristics of this fundamental societal unit.

It would be instructive to note that the conceptions of Family in domestic jurisdictions have a much wider and detailed definition of this institution. “Family” as an institution within most legal systems is a multi-faceted area of law that deals with family relations. Family law encompasses such areas as: adoption, child custody and visitation, children's rights, child support, spousal support (alimony), separation agreements, civilian and military divorce (dissolution of marriage), marital property division (equitable division), elder law matters, estate planning, estates and trusts, wills and will contests, probate, insurance, cohabitation agreements, pre-marital (pre-nuptial) agreements, marriage and other legal issues pertinent to the family. Family law courts generally hear cases pertaining to dissolution of marriage, legal separation of the parties, nullity of marriage, child custody, child and spousal support, elder law legal issues, domestic violence petitions, and estate planning cases like wills, will contests, guardianship, insurance, probate, trusts and other estate related legal issues.

This comparative résumé of the different perspectives of the family gives us these two clear preliminary foundations:

  1. In international legal field there is the real philosophical cum jurisprudential foundations about the institutions of state and the family.
  2. In domestic jurisdictions, there are generally detailed rules concerning the “family” and in different countries can vary and are judged actually by and according to the norms of the prevalent legal order.

I must point out at the outset that there has been from the protagonists of the traditional family, almost a single minded emphasis on the moral aspects of this traditional institution; in particular the debate has been totally consumed by the notoriety being invariably given by the relevant quarters including the media to what is called same sex marriage issues.

Conversely, the detailed rules of what constitute marriage and how the diverse obligations within family are or should be regulated are generally ignored and not taken note of.

Clearly we have really an interest in the former’s perspective analysis of this debate. Protagonists of the pro-family phenomenon have been evidently enthusiastic about the process regarding the recognition of the Family as a fundamental human institution generated at leading international conferences such as the Doha International Conference in November 2004 and six months earlier at the Benin International Conference on Family involving mostly African countries.

However despite this normative evaluation of the doctrinal aspects of this matter, there does remain the essential question of the degree to which this dogma is actually respected in Muslim communities.

This basic inquiry arises since the main thrust of this phenomenon has been significantly questioned at what was achieved at conferences such as the Doha Conference by known legal scholars [6] and journalists [7] of note.

Any one interested in this matter will thus find a fair deal of research material on this matter. It is thus proposed to discuss these actual threats to traditional family in Muslim communities after the general contribution of Islamic countries has been articulated.

I have myself written over two dozen articles and given several interviews on many aspects of this subject which are available on the internet or I printed formats. In these works I have already expounded on various aspects of international legal matters and issues of general jurisprudence associated with the deliberations of this Conference. It was a part of that year’s long activities to mark the UN Year of the Family decade.

Today my endeavor is, however, somewhat different. The Doha Conference of 2004 was prima facie held in an Islamic cultural milieu. We are already familiar with the realization that the Islamic counties generally have supported as a policy, pro-family activities at the international level.

I will not be making, therefore, any observations regarding its impact in the Western world or in the largely Catholic countries of the Americas. What remains to be seen in some depth accordingly the impact of this Conference on Islamic countries themselves?

Only then we can evaluate if there is any implementation of the requirement of the Shari’a “laws” in respect of Family in Muslim nations. Also an important matter to examine is whether what is generally considered as established Islamic law in some spheres of the Family, is in fact so?

Tussles within Islamic Thinking?

Throughout its history Islamic faith has been both deeply cherished and misunderstood for its emphasis on enveloping the entirety of a person’s life with its normative structure of rules of conduct and precepts. Amongst the major norms of such expected behavior are those that are devised to apply to the institution of the human family, children and women.

Simultaneously, the jurisprudence and moral philosophy of the faith also acutely focuses on the larger matter pertaining to the subject of human rights of mankind.

But in recent times there is an ostensible tussle in progress between the conservative elements of such societies and the advocates of modernistic attitudes. The modernistic thinking to which I refer is grounded on secular postulates which “indicate” that some traditional norms of accepted behavior qua the Family are in “violation” of the current relevant norms of the philosophy of human rights.

It is also maintained by other elements, in particular the governments in important Islamic states, that it is necessary for economic progress to “modify” previously held views on issues of contemporary significance.

Reference can made as an illustration to “reproductive health” which means family planning. For instance as Rapporteur of two major international UN sponsored conferences on the “rights” of the Family and the Child in Islamabad last May in 2005 I frankly reported that “rules” of “law” and not merely soft international law was being made by Islamic nations and major Asian countries.

The areas that were focused upon pertained to “rights” that were of “reproductive” kind and those loosely referred to as “spanking” practices. I think that there is little doubt that most Muslim countries are in progress towards embracing “family planning” practices. In countries such as Pakistan or Turkey where there is very vocal presence of conservative Islamic environment, the State apparatus is already busy devising strategies to counter such opposition.

In Pakistan, as I have reported in my Report on the May 2005 UN Regional Family Conference, the Federal government obtained “fatwa’s” from pliable Muslim clerics of nondescript note, to vouchsafe the absence of any such dogma in the Shari’a on it.

Regrettably the Western NGOs, who are otherwise very active in such matters, did nothing of any note to counter this kind of propaganda. Literally there was little help or support from such friendly NGOs to guide us in third world countries to devise modalities that would go some way to meet the policy declarations by the governments of several Muslim and other Asian countries.

I do not know exactly why, but could it be that it was unconsciously thought as such developments had little impact in the West, it was best to politely ignore such Declarations?  [8]

Such secular attitudes are on the other hand manifestly evident in the policies and state declarations of several advanced Western countries. [9] It is equally obvious that to exert friendly pressure on many such Islamic nations, mostly belonging to the developing category, substantial investment of funds is in progress. This is bound to affect the mores of such societies while certainly influencing their governments.

Compared to such current “liberal” Western thinking on moral issues concerning the Family, the humanitarian postulates and dogmas of Islam are heavily grounded on principles of high morality. It is this quality of fierce attachment to these ancient teachings that keeps the Islamic family together in almost the same moorings with which it began its traditions hundreds of years ago.

But are the about to change? What effect did the Doha Declaration have on such an evolution? I will answer such inquiries after noting the fundamental norms of the basic principles of this topic.

Philosophical Controversies of Current Issues

But I must hasten to add that any dilution in the ethos of traditional Islamic norms would be a disturbing to the religious practices of its millions of adherents. Such thinking would also affect the peoples of other Nations that direly need such ethical mores to keep afloat their own cultural value systems in an international social milieu rapidly losing such values in the wake of contemporary “progress”. But regrettably, as it would be noticed, such “dilution” within Islamic countries seems already in process.

Throughout its history it has been a deeply cherished objective of Islamic faith to emphasize on enveloping the entirety of a person’s life with its normative structure of rules of conduct and precepts. Amongst the major norms of such expected behavior are those that are devised to apply to the institution of the Family.

Islam has also considerable amount of substantive rules that govern the matter of human rights. But whereas in Western legal evolution the weight of such human rights’ normative seems to be developing evidently an anti-Family philosophy, the thrust of Islamic jurisprudence and Shariah seems to clearly accommodate both the corpus of human rights ideology and those basic necessary rules that create for the flourishing of the Family.

The evolution of these norms and concepts in the international legal field has been such that in respect of crucial details, there is a visible tendency to have the rights of the Family give up some of its historical and inherent hierarchal position and status in the society to specific and newly developed “rules” in the broader field of human rights. The problem that we are thus faced with is simple.

Some of the “changes” that are currently advocated by a sizeable segment of liberal based ideologues are such that they aim to denude the very foundations and grundnorms of the institution of the family as to adversely affect its well-being and character.

These challenges emanate from principally two sources, viz., the liberal facets of contemporary thinking about human rights and perceivable trends at the UN while codifying newer evolutionary norms of this law.

Undeniably the positive role that Faith and Religion play in the public life of any community is tremendously immense. Even amongst the most “progressive societies” of modern times the relevance of Faith can never be exaggerated. Given the peculiar political and societal realities of this millennium, in the Third World context Islam’s significance needs to be specially noted.

The perennial support that Family as an institution has evinced from confines of doctrinaire Islam is by itself comprehensive both legally and sociologically! An understanding of this fact would provide us with a true glimpse of the rationale why Muslim countries are always advocating the continued historical continuity of the

Family as the core and fundamental group unit of our civilizations, regardless of the nature of Religion of the concerned communities [10].

Background

Islam’s contributions to this subject are a living tribute to the strength of the Faith to protect and enhance the status of the Family as the crucial nucleus of our civilization’s civic life. The Quran contains many direct commands for the purpose of keeping the Family in tact. Such mandates apply regardless of geography or ethnic specificity as such instructions are binding on everyone. [11]

Furthermore, apart from ethical and moral injunctions, Islamic compendium of teachings on matters connected with the concept of matrimony and man-woman relationship, have a codified criminalization of laws relating to what may be described as wrongs qua this status of traditional marriage.

As such same sex union, howsoever described will be a serious legal wrong in an Islamic society and depicted by the term “sodomy”. In the Indian Penal Code 1860, initially drafted by McCauley, vide Section 377, this “deviant” action is said to be an “unnatural offence.”

This is still the position in Pakistan and many other Muslim countries. Hence both by the weight of the teachings of the Faith and the contents of the prevalent legal systems, philosophically and by jurisprudence, Muslim countries stand solidly behind the institution of the “traditional” Family.

Even a cursory look at the performance of Muslim states in the international arena will provide us with over whelming evidence of this attitude and commitment. In the General Assembly of the UN whenever it mattered, it was the Islamic states that gave the required numerical support to defeat the agenda of activists of anti Family protagonists.

Most recently in the erstwhile UN Human Rights Commission meetings in Geneva, it again fell to the Muslim countries to defeat a highly organized move of the biggest coalition of Gays, Lesbians, Bisexuals and Transgender group sever gathered at a UN meeting to cater for the adoption of the “sexual orientation” resolution which, if adopted, would wreck the steadily achieved advance in pro Family world-wide efforts.

This impressive contribution began at the end of the 59th Session of the UNHRC in 2003 when five Islamic countries led by Pakistan (the others being Egypt, Libya, Saudi Arabia and Malaysia) after delaying a vote by moving several Amendments had the Resolution debate adjourned to 2004. [12]

In 2004 during the 60th Session once again it fell to the Muslim countries to force Brazil on the 29th March to seek postponement of this measure until 2005.

I feel that all these matters from a normative perspective and of state practice deserve to be fully noted, chronicled and duly analyzed. My standard legal texts constitute a kind of work in this field which would be helpful for those trying to go deeply into a number of issues raised in today’s address. [13]

But it would be helpful to see the extent to which such inherited values of the Muslims as contained in Shari’a have been really implemented; a brief reference to the Islamic position on family needs therefore a priori re-iteration. [14]

Islamic conceptions relating to Family

The first question that needs some explanation from me would be the scope and vires or validity of the Shariah laws. Islamic Law, or Shari’a, is derived from the Quran and the Hadith. The Quran is considered to be direct revelation from God through Muhammad, the Prophet of Islam. The Quran contains Meccan Surahs that were revealed from the year 611 A.D to the year 622 A.D.

The Medinan Surahs were revealed from the year 622 A.D until Muhammad’s death in the year 632 A.D. The Hadith are traditions, revealed by Muhammad, not God, but are considered divine since Muhammad was the Prophet. It is important to note that Hadith are described as authentic, inauthentic, or even weak, depending on who they came from

In the context of Islamic family obligations this status is defined as “a human social group whose members are bound together by the bond of blood ties and or marital relationship” [15]

The Quranic injunctions created the basic framework of such obligations. The major thrust of such injunctions was to ameliorate the position of women and to grant to daughters rights and privileges ignored by the ancient customs which were present at the advent of Islam. “These Quranic reforms, as well as customary practice, constitute the substance of classical family law” in Muslim philosophy. [16]

The basic perception of marriage, which is considered to be the foundation of family life, is in the nature of “the strongest bond” [17] that exists in human relations. Surah 4: An-Nisa allows marriage of choice but forbids husband from inheriting the wife’s property against her will. [18]

According to Quran men and women have equitable and proportionate rights and responsibilities in a family. In order to preserve the survival of the family unit and to ensure the viability of the institution it has been provided that the weaker elements in this unit have higher levels of protection. As such the Quran allows the rights of women not only in the context of marriage [19], protection from slander [20], maintenance [21], and care of children. [22].

The cumulative quintessence of these diverse injunctions regarding the family as a social unit signifies that laws of Divine origin are in place to ensure the integrity of this unit.

In this scheme of the preservation of the family as a unit in a society described briefly above, the Islamic message seems to be to—

  1. Make marriage based on free consent.

  2. Preserve the economic viability of the wife.

  3. Make the off spring, with great emphasis on the females of this union, an integral part of this unit in which they not only owe various duties of loyalty and respect to their parents, in return the parents must exert their best moral influence on them.

  4. The position of women is specifically deserving of attention as it is enjoined upon Muslims to care, cater and look after kindly the females amongst them

In light of such lofty principles it must not be concluded that such indeed is the practice amongst Muslims generally. This is sadly not the case at all. I am myself an ardent critic of Islamic leadership because of its visible failings on many matters that are of significance to people as human beings.

Also to be kept in mind is the fact that many Governments of Muslim states are essentially dictatorships. The primary aim of most of such governments is not to serve its citizens but to devise strategies of self-preservation.

So along with the inapplication of some of the essential rules of the Shari’a laws affecting family, many other laws of a public nature also sadly await enforcement.

So what areas of Family require “reform”? Does it mean to bring at par with tradition if it is short of that level? Or does it mean reformative recourses in fields that are established but “need” change to be in accord with our current notions of fairness and justice?

Both perspectives will be evaluated in this analysis.

Islamic World: needed reformation in Family matters?

Islam’s message on the Family is very comprehensive yet from contemporary Western societal standards in a number off areas somewhat austere even medieval. The idea behind the Doha Family Conference was not to my mind just to combat the behavior of the philosophy of simply sexually different people but to accord this institution its totality of status of dignity.

While it is not really possible to give an exhaustive enumeration of such illustrations, I will endeavor to point to the major failings in which “reformation” from Islamic societies would be most welcome.

The oft quoted instances of critiques offered on Islamic conceptions as generally perceived relate to:

  1. Polygamy,
  2. Mistreatment of wives,
  3. Discrimination of females in the Family,
  4. The rights of wives’ in marriage relating to divorce, inheritance and evidentiary value of women’s testimony, and
  5. The notion of “equality” of the two spouses of a marriage.

Other major areas requiring attention would be the following.

  1. Under the Shiite laws, there is even the allowance of a “temporary marriage” known as “Mutaah”.
  2. Domestic violence is another horrendous phenomenon that needs current attention of both scholars and governments.
  3. Then in the filed of children’s rights there is the disturbing practice, clearly against normal conceptions of current thinking on human rights, as being considered as a part of the Father’s patrimony and expected to contribute financially to the household. [23]

It is beyond the scope of an article of this length to analyze all such areas as have been identified above. I shall focus today on different aspects of Marriage as I think it is per se a fundamental core area requiring our attention. This criterion is based on my understanding that the Family begins on the occurrence of a Marriage.

That such broad criticism regarding Muslims society’s exits is certain. However, I am not aware of any actual statistics that can be used for sustaining this undeniable reality. In the Islamic world there are few institutions of this kind to undertake any such research. In the Gulf region, however, there has been recently established one such center that is reportedly analyzing such kinds of data and statistics.

This is the Batelco Care Centre for Family and Violence Cases, Bahrain. Since it was formally opened in August 2005 this support centre has reported just over 900 cases of serious violence within the Family until May this year. Almost 800 cases of family violence were sadly, however, that of women beaten or abused or battered or at least publicly humiliated by their husbands. [24]

The Chairperson noted most recently when talking to the media including the TV journalists:

"According to the statistics of our reported cases, there were 61 cases in January, 79 in February, 179 in March, 51 in April and 109 last month," This is very alarming because these are only the reported ones. Just think of all the cases that are not being reported. Most of our cases are Bahraini women who are being very badly treated by their husbands. The children growing up in such environment will be affected, particularly their psychological balance in the long run."

It is a disturbing state of affairs. Most painful, however, is the realization that such reporting in Bahrain or elsewhere in Muslim countries is not undertaken by Family organizations per se, but by pro-Women NGOs[25]

Realizing the special position of husbands in a Muslim societal milieu, the Center provides extra-ordinary counseling to only to the husbands by preaching the virtues of decency, toleration and kindness to their spouses. It provides on the other hand provides help to victims with relaxation therapy, hypnotherapy, cognitive therapy, counseling and anger management therapy.

It is very comforting to note that in dissemination of appropriate information this Center has already provided public awareness programs including several on the local television.

From domestic violence which is really symptomatic of many unhealthy features of the Muslim society, another area of family laws which often have received tremendous notoriety non Muslim cultures but is always “hidden” in the Islamic environment itself is the ascendant male societal position. It can be explained but not satisfactorily why this state of affairs is still permitted by different Islamic cultures.

What is the foundation of Family? Without question it is Marriage based on equality of significance of both spouses.

While foundations of family remain the same through out the world, the super structure that sustains the existence of such fundamental and universal institutions can be different in diverse regions.

Social values provide the foundation and foundation should be made stronger so that the super-structure can persist longer. For example justice should be foundation of all laws of marriage; all its appurtenant legal rules should be equally so.If this basic premise is correct as it seems to be self-evident let me focus on the following issues.

The broad subject pertains to Islamic classical laws and the current positions with respect to divorce and the allied question of plurality of wives in Muslim countries. Regrettably polygamy has become more important in Islamic world than the concept of justice emphasised by the Quran.

Multiple wives have justified even if it violates concept of justice which is much more fundamental than polygamy. Thus the question of injustice to such wives is very important today but consistently ignored.

The Islamic world began to see this problem around 1960s when most of the contemporary Islamic countries emerged. The gender relations in medieval ages were very different from what they are today. The Shari’a laws formulated in those days were based more on the prevalent societal gender relations than on a basis of transcendent concept of gender relations in the Quran.

Practical customs came to be regarded as religious norms to justify local prejudices and cultural habits. This led to a fairly widespread impression in advancing a thesis of Islam encouraging a trend of male dominated family structure. It did exits in this manner; but not for reasons of Islam but by custom.

The Quran could hypothetically have ignored gender relations obtaining in those days. But it attended to the gender question in marriage not merely on a realistic level but also on moral and transcendent planes. Importantly the Quran made marriage a contract between husband and wife. But of equal significance is to realize that the Quran greatly improved upon the tribal customary law.

While adopting it on realistic ground it made humane additions for compliance amongst the Muslims. In tribal customs of that age marriage was totally heavily weighted against woman. She could not negotiate her own marriage except through the agency of her marriage guardian who happened to be her father or grand father or elder brother or uncle in the absence of her father. The institution of marriage guardian (wali) was very fundamental in tribal customary law.

But Quran does not mention the institution of guardian in marriage and gives this right directly to women. Secondly, meher (dower) amount was negotiated by the guardian and was taken by him whereas Quran gives woman the right to negotiate meher amount and it is she who is entitled to it (and not her guardian). Invariably in most Islamic societies where it is practised this seems to be the case.

Thus important reforms are needed to have the law of marriage more just and convey the essential moral and ethical foundations of a marriage. The Quran elevates marriage to a higher moral plane despite its basic contractual nature by invoking moral values like love and ihsan.

In verse 7:189 the Quran says:

It is He Who created you from a single soul
and of the same did He make his mate,
that he might find comfort in her,(in love).
So when he covers her she bears a light
burden, then moves about with it.
Then when it grows
heavy, they both call upon Allah, and pray to their Lord:
if Thou givest us a good one, we shall certainly be of the grateful.

Thus husband and wife are to find comfort in each other to cherish and have happiness. This verse clearly refers to woman getting pregnant and then both pray to Allah to give them a good child (salih).

Thus marriage is lifted to a moral plane and made to develop firm bonds so that husband can find solace in wife and together create good children to perpetuate human progeny. Marriage is thus not merely for satisfying sexual urge but much more than that, a bond of love and an instrument for perpetuating human progeny.

It is thus well to keep in mind that the production of children remains an essential and integral part of the process of marriage and having a family.

Thus marriage, according to the Quran, is both a contract and also a moral bond. Quran says in 30:21:

And of His signs is this
that He created mates for you
from yourselves
that you might find tranquillity in them
and He put between you love and compassion. 

Marriage without love and compassion cannot be lasting bond between husband and wife. It is the task of Muslim governments to create socio-economic conditions to ensure that the ethos of the Quran in such matters is respected.

Muslim countries are faced with huge reconstruction to even begin to think of making such a state of affairs prevalent. So far I do not see any of the 60 Muslim nations that exist approaching any thing like the levels of desirability needed to move ahead with satisfaction in this regard.

We have now to see the added and difficult subject of eventualities that regretfully arise in all societies. The Quran does not overlook the situation in which in a marriage a man and woman can no longer carry on with each other and divorce becomes necessary.

Hence it approves of divorce in such situations and here contractual nature of marriage comes to their help. In some religions marriage is treated as sacramental and thus the bond can never be broken.

That makes lives of both spouses somewhat difficult to endure. The Quran while treating marriage more than contract, does permit divorce. But it does not make divorce a bitter rupture between husband and wife and advises man to live with her in ma’ruf (kindness) or leave her with kindness, not with bitterness.

Thus whatever meher or gifts he has given to her, become her property and cannot be recovered.

Thus verse 2:231 says:

And when you divorce women
and they reach their prescribed time
then retain them with kindness or set them
free with kindness
and retain them not for injury.

Thus we see the moral plane to which marriage and divorce have been lifted by the Quran.Regrettably over several centuries of Muslim development of jurisprudence, most leading schools of law overlooked this moral aspect of marriage and divorce as ordained in the Quran.

It is maintained by many such jurists that divorce can materialize by utterance of a word a number of times! Such interpretations were made that allowed marriage to be broken by pronouncing thrice the word “talaq” (meaning severance) even if it uttered in anger and bitterness.

It is my view that such a belaboured interpretative approach and interpretation misses the moral nature of Quran on divorce as I believe that triple saying of divorce has no place at all in God’s scheme of this matter.

Indeed so detailed is the treatment of this topic in the classical Islamic theology that it can said that God created the first known system of arbitration in this respect. Indeed the Quran actually instituted the institution of arbitrator to make living together or separation a humane and a healing process.

The arbitrator could look into issues after hearing from man’s and woman’s side.

Thus in verse 4:35 the Quran says:

And if you fear a breach
between the two
appoint an arbiter
from his people
and an arbiter from her people.
If they both desire agreement
Allah will affect harmony (reconciliation) between them.

Thus the Quran does not like a sudden rupture of relationship between husband and wife in a state of anger but requires harmony and agreement as far as possible. This purpose is totally defeated by allowing triple divorce in one sitting. Divorce should not be seen merely as a breaking of contract in an arbitrary fashion but bringing about separation as a last measure after all efforts to bring about harmony between the two.

Thus any law of divorce should be based on moral approach of the Quran. Thus marriage and divorce should not be treated merely as legal contract to be entered into and broken at will without any regards to moral values involved in these acts. Unfortunately as I see it the Western jurists and legal systems treat marriage and divorce as strictly legal matters devoid of moral values.

Pakistan became the first Islamic country in modern times to effect such changes in the positive laws. By enactment of West Pakistan Family Laws Ordinance, 1962, important changes were effected. Both Quranic aspects referred to above were incorporated in the statute, viz: divorce had to be made in written form with copies supplied to the Union Councils.

Then it created official Arbitrators to accomplish the task of reconciliation. Not only it had the oral triple talaq law redundant but also created the institutions of Arbitrators at all the basic civic levels of governance. [26]

The next point requiring my careful attention is the misconception that legally speaking Islam gives a secondary place for women as it relates to wives and daughters. Similarly, Quran treats gender question not merely as of husband and wife as two partners having different sexes but as human and spiritual partners.

Functionally at a realistic level some jurists misinterpret to contend that women have a subordinate position.

This verse 4:34 says:

Men are the protectors
And maintainers of women

It is my feeling that it is only descriptive of a world wide economic and societal fact and not the enunciation of a religious dogma.

At deeper and spiritual level gender relationship is described further in the verse 33:35. This verse treating the question at spiritual level says:

Surely men who submit and the women who submit,
and the believing men and believing women,
and obeying men and obeying women,
and the truthful men and truthful women,
and the patient men and patient women,
and the humble men and the humble women,
and the charitable men and the charitable women,
and the fasting men and fasting women,
and the men who guard their chastity
and the women who guard,
and the men who remember Allah much
and women who remember,
Allah has prepared for them forgiveness and a mighty reward.

Thus gender relationship between a husband and wife is on a spiritual level and is quite equal and without any discrimination in its evaluation. The nature of relationship in the verse 4:34 is purely functional and therefore, not applicable permanently. It will change with the function but the relationship described in 33:35 is on an elevated and spiritual level and permanent.

Thus men and women are equal in every respect in the eyes of the Quran. Her humanity and human dignity in no sense is lesser than that of man.

The Islamic jurists, it is argued by some thinkers, treated women as unequal on the basis of certain verses like she being half witness or she receiving half the share in inheritance. Such verses in no way prove her inferior to man as far as her human dignity is concerned. It would be out of place to discuss in this presentation this exhaustive topic of economic laws of Islam on such issues.

But I must say that there is great misunderstanding about these verses also. It is wrong to designate her as half witness as it pertains only to financial matters as she had no financial experience and moreover it is not at all obligatory but recommendatory in nature. Today women also are financial experts and head even banks, corporations and even have risen to be he heads of governments.

Therefore why or how can women are treated as half witness in financial matters only? There is manifestly merit in the argument that the verse was of recommendatory nature in conditions of those times. In no way it can be cited to prove her inferiority.

Some Islamic jurists have treated women as unequal on the basis of certain verses like she being half witness or she receiving half the share in inheritance. Such verses in no way prove her inferior status to man as far as her human dignity is concerned. Also, there is great misunderstanding about these verses also. It is wrong to designate her as half witness as it pertains only to financial matters as she had no financial experience and moreover it is not at all obligatory but recommendatory in nature. Today women also are financial experts and head even banks. How can then she be treated as half witness in financial matters also? The verse was of recommendatory nature in conditions of those times. In no way it can be cited to prove her inferiority.

Even a lesser portion in inheritance of family property of daughters is logically no proof of her inferiority. [27]

It was entirely due to her being a non-earning member of the family in those days which necessitated her dependence on father and on husband after marriage. But the Quran had made her maintenance obligatory on her father before marriage and on her husband after marriage and on her sons after death of her husband, if she had grown up children.

It has nothing to do with her being woman. Today in many cases she earns herself and contributes to the family wealth and there is a need to possibly examine this matter further.

The Quran created for women right to inheritance in three capacities: as daughter, as wife and as mother. Before Islam she could not inherit at all. Since in those days she was not contributing to the family wealth and was merely dependent on male members of the family. This (i.e. creation of right to inheritance in three capacities) itself was a revolutionary step.

Thus this right could be further advanced today in the changed condition. It will in no way injure the spirit of the Quran; on the contrary it will enrich it.

I strongly advocate on ethical and moral principles that the kind of changes I am hinting at are due for being implemented. In actual practice, some Islamic countries today are on way to achieving such results [28].

However it has been accomplished without much publicity for fear of arousing a religious reaction movement. In Pakistan for instance there is an open campaign to cancel from the statute books Hudood laws [29].

How far this evolution is successful remains to be seen.

So it is not only the matter of Shari’a laws not being applied in Family related questions, there is the more difficult and complex inquiry how to meet the debris of centuries of interpretation to assist particularly the attitude towards the women of this institution. The task ahead for Islamic societies is thus very difficult.

I find it almost disheartening as I feel that the trans-national realities are so delicate right now that vast number of uneducated people in Islamic masses is being driven towards adopting the more rigid approaches to important questions relating to Family, marriage and divorce.

Before concluding this survey I should says something about some other aspects of this matter which are not well known. Apart from the genuinely difficult sociological and legal issues there are some peculiar problems dealing with Muslim family traditions in different countries connected with family and marriage issues.

In the Sub-Continent, in Afghanistan and Pakistan there exists amongst the Muslims the tradition of “wani” This means giving in betrothal one or two young female children in marriage to another family for some kind of a quid pro quo or simple bonding. Fortunately, however, the practice of wani is not widespread.

But another very disturbing phenomenon is the so-called urfi marriage. Social activists and experts working on broad family issues and human rights have warned of the dangers of a general lack of information regarding urfi marriage, a phenomenon that is becoming increasingly common in Egypt. “It’s the lack of understanding of what exactly urfi marriage entails that ends up creating a host of problems for the female party,” said Heba Loza, an expert on broader family issues wrote recently with semi-official newspaper Al-Ahram. [30]

Urfi marriages, commonly defined as marital unions lacking an official contract, are often carried out in secret. For the most part, those who choose to be married by way of an urfi contract are young couples who do not have parental consent or who cannot afford a wedding.

“In reality, most of those who resort to urfi marriages are young couples seeking to legitimize a sexual relationship,” said Heba. “Many cannot afford a wedding, while many others don’t have the consent of their parents. To them, urfi marriages provide an alternative.”

The basic question is that are urfi marriages sanctioned by Islam? Islam is after all Egypt’s majority religion. It seems that the view is generally that it is so even though conducting them in secret — without the consent of couples’ families — is not. In urfi marriages, conducted by a Muslim cleric and usually in the presence of at least two witnesses , only two copies of the marriage contract are produced — one for each party.

“Hence, there is always the danger that one party will deny the marriage ever took place,” said Heba. “In most cases, it’s the man.”

I had already mentioned that there is the concept of temporary marriage in Shiite notions of Islam and is chiefly practiced in Iran. But to have this kind of acceptability in Sunni Muslims is quite unnerving.

Conclusions

These are some of the more prominent fields relate to Family laws requiring attention of scholars, experts, religious leaders and governments for undertaking reforms. A “reform” movement is thus needed; it has to be well coordinated and of course led by profound scholarship.

Anything less in quality would be self defeating. So this reform movement has to be undertaken with lot of planning, and a determined effort to have the kind of imagination that achieves progressive advances without creating the expected opposition from adversary ideologies; s such this reform has to be led by scholars who truly comprehend the real dynamics of this problem.

But like in all societies, when religious dogma is intertwined with local culture and prejudices, it is not easy to move ahead with alacrity

I am sure that given the intellectual weight of this Rhodes Forum in such debates, that we would be able to move ahead with the necessary impetus for ensuring that we do have the necessary momentum to plan ahead within the guidelines pointed out by me in this endeavor.

I thank you.

 

 1 See The Right to be Different, Farooq Hassan, UNESCO Doc. SS-80/CONF.806/9, 1980). Exploratory proposal for the creation of a new human right. (In English, French & Spanish); Final UNESCO REPORT, SS-80/CONF.806/COL. 7 at 22.

 2 See: The Right to be Different: An Exploratory Proposal for the Creation of a New Human Right, by Dr. Farooq Hassan, Loyola International & Comparative Law Review Volume 67- 100 reference 5:67 1985

 3 See further Solidarity Rights: Progressive Evolution of Human Rights Law? By Dr .Farooq Hassan, Human Rights Annual, New York Law School, 1983, Volume 1, p 51

 4 See Religious liberty in Pakistan: Law, reality, and perception by Dr. Farooq Hassan, Brigham Young University Law Review, Spring Issue 2002,

 5 See Threats To Family & Marriage: International Perspectives , Dr. Farooq Hassan Nov. 21-22, 2003, /Mesa, Arizona, Link: (www.unitedfamilies.org/hassan_article)

 6 Amongst the supporters of Doha Conference is Professor Richard Wilkins who as BYU law professor lobbied for the adoption of GA Resolution on Family at the UN in December 2004 which marked the culmination of the 2004 as Year of the Family. He now heads the Doha Family Institute in Qatar.

 7 For a contrary view and perspective of this evaluation see Brian Whitaker’s article Fundamental Union in The London Guardian, 25 January, 2005, in which he severely castigates the union of views on family between Islamic states represented by countries such Qatar and the Mormon Church of the Latter Day Saints which impliedly suppress the genuine rights for women.

 8 Except for the Catholic organizations that did articulate an endorsement of my views.

 9 See e.g. Stanley Kunz, Beyond Gay Marriage, The Weekly Standard, and February 2, 2004. See further, Maria S. Aguirre, UN Policy & the Family, Redefining the Ties that Bind, WPF Proceedings, 2001, 55.

 10 Islamic countries support has kept in tact the pivotal issues relating to historical characteristics of the Family at the leading international organizations’ debates. This support has enabled Church and pro family institutions to work towards the retention of the traditional values of this societal core unit of mankind. But some important Church denominations have acted against this “moral” trend, e.g., by the induction of admittedly gay priest Gene Robinson as a Bishop by the Episcopal Diocese of New Hampshire on June 7, 2003

 11 A leading author, sums up such totality of obligations qua the family by saying: “The family bond entails mutual expectations of rights and obligations that are prescribed by religion, enforced by law and observed by group members. These pertain to identity and provision, inheritance and counsel; affection for the young and security for the aged, maximization of effort to ensure the Family continuity in Peace.” See Ati. H.A., Islam in Focus, p 114, American Trust Publications, Plainfield, 1975

 12 Pakistan distributed a Memo to the 53 Member Commission at the end of 2003 Session stating boldly: “Resolution directly contradicts the tenets of Islam and other religions” and that its “approval would be direct insult to the 1.2 billion Muslims around the world.” This is indeed a memorable action by Islamabad for the defense of the Family.

 13 See The Concept of State & Law in Islam, University Press of America, Washington DC 1981, & The Islamic Republic, Aziz Publishers, 1984

 14 The Doha Conference did not go deeply in this aspect of the Family.

 15 Abdalati, H., Islam in Focus, American Trust Publications, Plainfield, Indiana, 1975, pp113-114.

 16 Espositio J.L. Women in Muslim Family Law, Syracuse University Press, 1982, p13

 17 Islam in Focus, ibid. p 114.

 18 Ali, A.Y. The meaning of the Holy Quran, Amana Publications, Beltsville, Maryland, 1995, pp 184,190.

 19 E.g. see Surah 2: Al Baqarah, 228

 20 E.g. see Surah 24: Al- Nur: 4-5,23

 21 E.g. see Surah 2: Al-Baqarah, 241

 22 See, ibid, 233

 23 Regrettably amongst the worst examples of this attitude is provided by Pakistan which has been chastised for being liberal in exporting children between the ages of 8 to 12 to Gulf States for camel riding although this is forbidden by law. The justification given is that such children are the property of the family and being “male” are expected to add to the Family’s fortunes.

 24 See Gulf News, 5 June 2006, the chairperson of this Center is Dr Bana Bu Zabun.

 25 After learning of the pioneer work of this new Center, I had recommended as President to the Pakistan Family Forum to undertake services of this nature. I am happy to note that we are now having a modest beginning. Our data is very similar to that of the Bahrain Center thus far since February, 2006.

 26 Such legal development however predate the Doha process by nearly four decades and has nothing to do with more current evolution of this subject.

 27 The Shiite law already looks at this issue differently than Sunni legal views.

 28 Pakistan, Turkey, Egypt, Syria and Malaysia are examples of this trend.

 29 Thus basic thing is limits of Allah and what are the limits (hudud) of Allah but limits of morality? Hudood laws are in force in Pakistan and are supposedly based on the limits of conduct allowed by Divine commandments as contained in the Quran.

 30 See Gulf News 5 June, 2006


Дата публикации: 2010-12-09 02:10:51